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DEUTSCHE ALT-A SECURITIES, INC.
Depositor
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
Master Servicer and Securities Administrator
and
HSBC BANK USA, NATIONAL ASSOCIATION
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2005
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Mortgage Pass-Through Certificates
Series 2005-2
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS..................................................................................
Section 1.1 Whenever used herein, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article:.................................
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 and Residual Interests...............................................................
Section 2.5 Representations and Warranties of the Master Servicer........................................
Section 2.6 Establishment 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 and Interim 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 Officer's Certificate as to Compliance................................................
Section 3.17 Annual Independent Accountant's Servicing Report.............................................
Section 3.18 Reports Filed with Securities and Exchange Commission........................................
Section 3.19 UCC..........................................................................................
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 Reserve Funds................................................................................
Section 3.26 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 Uncertificated REMIC Regular Interests..................................
Section 4.6 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 Interim Servicers,
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...........................................................
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................................................
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
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Exhibit A-1 - Form of Class I-A-[1] [3] [5] Certificates
Exhibit A-2 - Form of Class I-A-[2] [4] [6] Certificates
Exhibit A-3 - Form of Class I-A-7 Certificates
Exhibit A-4 - Form of Class II-A-1 Certificates
Exhibit A-5 - Form of Class II-A-2 Certificates
Exhibit A-6 - Form of Class II-A-3 Certificates
Exhibit A-7 - Form of Class M Certificates
Exhibit A-8 - Form of Class B-[1][2] Certificates
Exhibit A-9 - Form of Class B-[3][4][5] Certificates
Exhibit A-10 - Form of Class R 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
Schedule One - Loan Schedule
Schedule Two - Prepayment Charge Schedule
Schedule Three - Servicing Advances Incurred Prior to Cut-Off Date
This Pooling and Servicing Agreement, dated and effective as
of February 1, 2005 (this "Agreement"), is executed by and among Deutsche Alt-A
Securities, Inc., as depositor (the "Depositor"), ▇▇▇▇▇ Fargo Bank, National
Association, as master servicer (the "Master Servicer") and securities
administrator (the "Securities Administrator"), and HSBC Bank USA, National
Association, as trustee (the "Trustee"). Capitalized terms used in this
Agreement and not otherwise defined have the meanings ascribed to such terms in
Article I hereof.
PRELIMINARY STATEMENT
The Depositor at the Closing Date is the owner of the Loans
and the other property being conveyed by it to the Trustee for inclusion in the
Trust Fund. On the Closing Date, the Depositor will acquire the Certificates
from the Trust Fund as consideration for its transfer to the Trust Fund of the
Loans and certain other assets and will be the owner of the Certificates. The
Depositor has duly authorized the execution and delivery of this Agreement to
provide for the conveyance to the Trustee of the Loans and the issuance to the
Depositor of the Certificates representing in the aggregate the entire
beneficial ownership of the Trust Fund. All covenants and agreements made by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
herein with respect to the Loans and the other property constituting the Trust
Fund are for the benefit of the Holders from time to time of the Certificates.
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 Junior
Subordinate Certificates, have been offered for sale pursuant to a Prospectus,
dated January 28, 2005, and a Prospectus Supplement, dated February 25, 2005 of
the Depositor (together, the "Prospectus"). The Junior Subordinate Certificates
have been offered for sale pursuant to a Private Placement Memorandum, dated
February 25, 2005. The Trust Fund created hereunder is intended to be the
"Trust" as described in the Prospectus and the Certificates are intended to be
the "Certificates" described therein.
REMIC I
As provided herein, the Trustee 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 R-1 of the Class R 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.
Uncertificated Initial
REMIC I REMIC I Uncertificated Latest Possible
Regular Interest Designation Pass-Through Rate Principal Balance Maturity Date(1)
---------------------------- ----------------- ----------------- ----------------
LT-1SUB (2) $29,033.22 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇▇▇▇ (2) $523,119.92 April 25, 2035
LT-2SUB (2) $3,027.58 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇▇▇▇ (2) $54,550.48 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇▇▇ (2) $577,060,572.39 April 25, 2035
LT-R (2) $100.00 April 25, 2035
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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 Group I Loans and Group II 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.
REMIC II
As provided herein, the Trustee shall elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets shall be
designated as "REMIC II". The REMIC II Regular Interests will be the "regular
interests" in REMIC II and Component R-2 of the Class R Certificates will
represent the sole Class of "residual interests" in REMIC II 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
II 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 II Regular Interests. None
of the REMIC II Regular Interests will be certificated.
Uncertificated Initial
REMIC II REMIC II Uncertificated Latest Possible
Regular Interest Designation Pass-Through Rate Principal Balance Maturity Date(1)
---------------------------- ----------------- ----------------- ----------------
LT-IA1 (2) $210,000,000.00 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇▇▇ (2) $75,000,000.00 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇▇▇ (2) $110,269,700.00 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇▇▇ (2) $98,817,000.00 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇▇▇▇ (2) $41,217,800.00 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇▇▇▇ (2) $10,305,000.00 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇▇▇▇ (2) $29,033,221.68 April 25, 0035
LT-IISUB (2) $3,027,581.92 ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇-▇ (2) $100.00 April 25, 2035
-----------------
(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 Group I Loans and Group II Loans has
been designated as the "latest possible maturity date" for each REMIC
II Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC
II Pass-Through Rate" herein.
REMIC III
As provided herein, the Trustee shall elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets shall
be designated as "REMIC III". Component R-3 of the Class R Certificates shall
represent the sole Class of "residual interests" in REMIC III for purposes of
the REMIC Provisions under federal income tax law. The following table
irrevocably sets forth the designations, the Initial Pass-Through Rate and
initial aggregate Certificate Principal Balance for each Class of Certificates
which, together with Component R-3, constitute the entire beneficial interests
in REMIC III. 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 Group I Loan and Group II Loan with the latest maturity date:
Initial aggregate
Certificate Assumed Final Maturity
Class Designation Principal Balance Initial Pass-Through Rate Date (1)
----------------- ----------------- ------------------------- --------
I-A-1 $ 210,000,000.00 LIBOR + 0.40% April 25, 2035
I-A-2 (2) (2) April 25, 2035
I-A-3 $ 75,000,000.00 LIBOR + 0.35% April 25, 2035
I-A-4 (3) (3) April 25, 2035
I-A-5 $ 110,269,700.00 LIBOR + 0.50% April 25, 2035
I-A-6 (4) (4) April 25, 2035
I-A-7 $ 98,817,000.00 (5) April 25, 2035
II-A-1 $ 41,217,800.00 LIBOR + 0.30% March 25, 2020
II-A-2 (6) (6) March 25, 2020
II-A-3 $ 10,305,000.00 (5) March 25, 2020
R $ 100.00 (5) April 25, 2035
M $ 13,575,300.00 (7) April 25, 2035
B-1 $ 6,643,200.00 (7) April 25, 2035
B-2 $ 3,754,900.00 (7) April 25, 2035
B-3 $ 2,310,700.00 (7) April 25, 2035
B-4 $ 2,021,800.00 (7) April 25, 2035
B-5 $ 3,754,903.00 (7) April 25, 2035
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(1) The Distribution Date in the month after the maturity date for the
latest maturing Group I Loan and Group II Loans. 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
Group I Loan and Group II Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each Class of
Certificates.
(2) The Class I-A-2 Certificates will accrue interest at the Pass-Through
Rate on the Notional Amount of the Class I-A-2 Certificates calculated
in accordance with the definition of "Notional Amount" herein. The
Class I-A-2 Certificates will not be entitled to distributions in
respect of principal.
(3) The Class I-A-4 Certificates will accrue interest at the Pass-Through
Rate on the Notional Amount of the Class I-A-4 Certificates calculated
in accordance with the definition of "Notional Amount" herein. The
Class I-A-4 Certificates will not be entitled to distributions in
respect of principal.
(4) The Class I-A-6 Certificates will accrue interest at the Pass-Through
Rate on the Notional Amount of the Class I-A-6 Certificates calculated
in accordance with the definition of "Notional Amount" herein. The
Class I-A-6 Certificates will not be entitled to distributions in
respect of principal.
(5) Calculated in accordance with the definition of "Pass-Through Rate"
herein.
(6) The Class II-A-2 Certificates will accrue interest at the Pass-Through
Rate on the Notional Amount of the Class II-A-2 Certificates calculated
in accordance with the definition of "Notional Amount" herein. The
Class II-A-2 Certificates will not be entitled to distributions in
respect of principal.
(7) Calculated in accordance with the definition of "Pass-Through Rate"
herein. The subordinate pass-through rate for the first Interest
Accrual Period is 5.8888%.
W I T N E S S E T H
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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 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 and any Protected Account as
the context may require.
ADVANCE: Either (i) a Monthly Advance made by a Servicer or an
Interim Servicer as such term is defined in and pursuant to the related
Servicing Agreement or (ii) an advance made by the Master Servicer pursuant to
Section 4.7.
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 Group I Senior Certificates
(other than the Class I-A-2, Class I-A-4 and Class I-A-6 Certificates) and Group
II Senior Certificates (other than the Class II-A-2 Certificates) immediately
prior to that Distribution Date, and the denominator of which is the sum of the
Scheduled Principal Balances of the Group I Loans and Group II Loans as of the
first day of the related Due Period.
AGGREGATE SUBORDINATE AMOUNT: With respect to any date of
determination, an amount equal to the excess of the aggregate Scheduled
Principal Balance of the Group I Loans and Group II Loans over the aggregate
Certificate Principal Balance of the Group I Senior Certificates (other than the
Class I-A-2, Class I-A-4 and Class I-A-6 Certificates) and Group II Senior
Certificates (other than the Class II-A-2 Certificates) then outstanding.
AGGREGATE SUBORDINATE PERCENTAGE: With respect to any
Distribution Date, 100% minus the Aggregate Senior Percentage for that
Distribution Date.
AGREEMENT: This Pooling and Servicing Agreement and all
amendments and supplements hereto.
ANNIVERSARY: Each anniversary of the Cut-Off Date.
APPRAISED VALUE: The amount set forth in an appraisal made by
or for the mortgage originator in connection with its origination of each Loan.
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 February 28, 2005, among the
Seller, the Depositor and National City, pursuant to which the National City
Servicing Agreement was assigned to the Depositor, (ii) the Assignment,
Assumption and Recognition Agreement, dated as of February 28, 2005, among the
Seller, the Depositor and M&T pursuant to which the M&T Servicing Agreement was
assigned to the Depositor, (iii) the Assignment, Assumption and Recognition
Agreement, dated as of February 28, 2005, among the Seller, the Depositor and
GreenPoint, pursuant to which the GreenPoint Servicing Agreement was assigned to
the Depositor, (iv) the Assignment, Assumption and Recognition Agreement, dated
as of February 28, 2005, among the Seller, the Depositor and Pinnacle Financial,
pursuant to which the Pinnacle Financial Servicing Agreement was assigned to the
Depositor, (v) the Assignment, Assumption and Recognition Agreement, dated as of
February 28, 2005, among the Seller, the Depositor and Pinnacle Direct, pursuant
to which the Pinnacle Direct Servicing Agreement was assigned to the Depositor,
(vi) the Assignment, Assumption and Recognition Agreement, dated as of February
28, 2005, among the Seller, the Depositor and First Financial, pursuant to which
the First Financial Servicing Agreement was assigned to the Depositor, and (vii)
the Assignment, Assumption and Recognition Agreement, dated as of February 28,
2005, among the Seller, the Depositor and Cameron, pursuant to which the Cameron
Servicing Agreement was assigned to the Depositor.
AUTHORIZED DENOMINATION: With respect to the Certificates
(other than the Residual Certificates), a minimum initial Certificate Principal
Balance or Notional Amount of $25,000 each and integral multiples of $1 in
excess thereof as set forth on the face thereof. With respect to the Class R
Certificates, one Certificate with a Percentage Interest equal to 100% as set
forth on the face thereof.
BANKRUPTCY COVERAGE: As of the Cut-Off Date, $100,000. The
Bankruptcy Coverage may be reduced upon written confirmation from each Rating
Agency that such reduction will not adversely affect the then current Ratings
assigned to the Certificates by each Rating Agency.
BANKRUPTCY LOSS: Any Debt Service Reduction or Deficient
Valuation.
BENEFICIAL HOLDER: A Person holding a beneficial interest in
any Book-Entry Certificate as or through a Depository Participant or an Indirect
Depository Participant or a Person holding a beneficial interest in any
Definitive Certificate.
BOOK-ENTRY CERTIFICATES: The Class I-A-1, Class I-A-2, Class
I-A-3, Class I-A-4, Class I-A-5, Class I-A-6, Class I-A-7, Class II-A-1, Class
II-A-2, Class II-A-3, Class M, Class B-1 and Class B-2 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.
CAMERON: Cameron Financial Group, a California corporation, or
any successor thereto.
CAMERON SERVICING AGREEMENT: Shall mean the Master Mortgage
Loan Purchase and Interim Servicing Agreement, dated as of January 1, 2005
between the Seller and Cameron (as modified pursuant to the related Assignment
Agreement).
CAP CONTRACTS: Shall mean (i) the Cap Contract between the
Trustee and Barclays Bank PLC, together with any successor thereto, for the
benefit of the Holders of the Class I-A-1 Certificates, (ii) the Cap Contract
between the Trustee and Deutsche Bank AG New York Branch, together with any
successor thereto, for the benefit of the Holders of the Class I-A-3
Certificates, (iii) the Cap Contract between the Trustee and Deutsche Bank AG
New York Branch, together with any successor thereto, for the benefit of the
Holders of the Class I-A-5 Certificates, and (iv) the Cap Contract between the
Trustee and Deutsche Bank AG New York Branch, together with any successor
thereto, for the benefit of the Holders of Class II-A-1 Certificates.
CERTIFICATE: Any one of the Certificates issued pursuant to
this Agreement, executed and authenticated by or on behalf of the Securities
Administrator hereunder in substantially one of the forms set forth in Exhibits
▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇ and A-10 hereto.
CERTIFICATE PRINCIPAL BALANCE: The Certificate Principal
Balance with respect to any Senior Certificate (other than the Class I-A-2,
Class I-A-4, Class I-A-6 and Class II-A-2 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 Group I Loans or Group II Loans, as applicable, and the other assets
in the Trust Fund. The Certificate Principal Balance of a Senior Certificate
(other than the Class I-A-2, Class I-A-4, Class I-A-6 and Class II-A-2
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, Group II 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, the Seller or the Master Servicer in determining whether a
Certificate is held by an Affiliate thereof. All references herein to "Holders"
or "Certificateholders" shall reflect the rights of Certificate Owners as they
may indirectly exercise such rights through the Depository and participating
members thereof, except as otherwise specified herein; provided, however, that
the Trustee or the Securities Administrator shall be required to recognize as a
"Holder" or "Certificateholder" only the Person in whose name a Certificate is
registered in the Certificate Register.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate 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.
CLASS: All Certificates having the same priority and rights to
payments from the Group I Available Distribution Amount and/or Group II
Available Distribution Amount, as applicable, designated as a separate Class, as
set forth in the forms of Certificates attached hereto as Exhibits ▇-▇, ▇-▇,
▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇ and A-10, as applicable.
CLASS B CERTIFICATES: The Class B-1, Class B-2, Class B-3,
Class B-4 and Class B-5 Certificates.
CLASS I-A-1 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 I-A-1 Certificates.
CLASS I-A-3 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 I-A-3 Certificates.
CLASS I-A-5 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 I-A-5 Certificates.
CLASS I-A-7 LOCKOUT PERCENTAGE: For any Distribution Date
shall be equal to (1) the Certificate Principal Balance of the Class I-A-7
Certificates divided by (2) the aggregate Scheduled Principal Balance of all
Group I Loans as of the related Due Date.
CLASS I-A-7 LOCKOUT PRINCIPAL AMOUNT: For any Distribution
Date, the product of:
(1) the Class I-A-7 Lockout Percentage;
(2) the related Step Down Percentage; and
(3) the sum of the following for that Distribution Date:
(a) the Principal Distribution Amount with
respect to the Group I Loans;
(b) the Principal Prepayment Amount with respect
to the Group I Loans; and
(c) the Liquidation Principal with respect to
the Group I Loans.
CLASS II-A-1 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 II-A-1 Certificates.
CLASS II-A-3 LOCKOUT PERCENTAGE: For any Distribution Date
shall be equal to (1) the Certificate Principal Balance of the Class II-A-3
Certificates divided by (2) the aggregate Scheduled Principal Balance of all
Group II Loans as of the related Due Date.
CLASS II-A-3 LOCKOUT PRINCIPAL AMOUNT: For any Distribution
Date, the product of:
(1) the Class II-A-3 Lockout Percentage;
(2) the related Step Down Percentage; and
(3) the sum of the following for that Distribution Date:
(a) the Principal Distribution Amount with
respect to the Group II Loans;
(b) the Principal Prepayment Amount with respect
to the Group II Loans; and
(c) the Liquidation Principal with respect to
the Group II Loans.
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: February 28, 2005.
CODE: The Internal Revenue Code of 1986, as amended.
COLLATERAL DEFICIENCY AMOUNT: With respect the Group I Loans
and Group II Loans and any Distribution Date prior to the Credit Support
Depletion Date, the amount by which (i) the sum of (x) the aggregate Certificate
Principal Balance of the Group I Senior Certificates (other than the Class
I-A-2, Class I-A-4 and Class I-A-6 Certificates) or Group II Senior Certificates
(other than the Class II-A-2 Certificates), as applicable, 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 National City, the aggregate Prepayment
Interest Shortfalls and Curtailment Shortfalls for such Loans for such
Distribution Date, (b) with respect to the Loans serviced by GreenPoint and M&T,
the lesser of (i) the aggregate Prepayment Interest Shortfalls for such Loans
for such Distribution Date and (ii) the aggregate Servicing Fee payable to such
Servicer for the related Due Period and (c) with respect to the Loans serviced
by an Interim Servicer, the amount set forth in the related Servicing Agreement.
COMPONENT R-1: The uncertificated residual interest in REMIC
I.
COMPONENT R-2: The uncertificated residual interest in REMIC
II.
COMPONENT R-3: The uncertificated residual interest in REMIC
III.
CORPORATE TRUST OFFICE: The principal corporate trust office
of the Trustee or the Securities Administrator, as the case may be, at which at
any particular time its corporate trust business in connection with this
Agreement shall be administered, which office at the date of the execution of
this instrument is located at (i) with respect to the Trustee, HSBC Bank USA,
National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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, ▇▇▇▇▇ Fargo Bank, National
Association, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: DBALT 2005-2 and (B) for all other purposes, ▇▇▇▇▇ Fargo Bank,
National Association, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: DBALT 2005-2, or at such other address as the Securities
Administrator may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer and the Trustee.
CREDIT RISK MANAGEMENT AGREEMENT OR CREDIT RISK MANAGEMENT
AGREEMENTS: Each agreement between the Credit Risk Manager and a Servicer or the
Master Servicer, regarding the loss mitigation and advisory services to be
provided by the Credit Risk Manager.
CREDIT RISK MANAGEMENT FEE: The amount payable to the Credit
Risk Manager on each Distribution Date as compensation for all services rendered
by it in the exercise and performance of any and all powers and duties of the
Credit Risk Manager under any Credit Risk Management Agreement, which amount
shall equal one twelfth of the product of (i) the Credit Risk Management Fee
Rate multiplied by (ii) the Scheduled Principal Balance of the Loans and any
related REO Properties as of the first day of the related Due Period.
CREDIT RISK MANAGEMENT FEE RATE: 0.010% per annum.
CREDIT RISK MANAGER: The Murrayhill Company, a Colorado
corporation, and its successors and assigns.
CREDIT SUPPORT DEPLETION DATE: The Distribution Date on which
the aggregate Certificate Principal Balance of the Subordinate Certificates have
been reduced to zero, prior to giving effect to principal distributions thereon
and the allocation of Realized Losses on such Distribution Date.
CROSS PAYMENT TRIGGER DATE: Any Distribution Date on which (i)
the aggregate Certificate Principal Balance of the Group I Senior Certificates
(other than the Class I-A-2, Class I-A-4 and Class I-A-6 Certificates) or the
Group II Senior Certificates (other than the Class II-A-2 Certificates) have
been reduced to zero and (ii) either (a) the Aggregate Subordinate Percentage is
less than 200% times the Aggregate Subordinate Percentage as of the Closing
Date, or (b) the aggregate Principal Balance of the Group I Loans and Group II
Loans (including Group I Loans and Group II Loans in bankruptcy, foreclosure and
REO) which are 60 or more days delinquent (averaged over the preceding six-month
period), as a percentage of the Aggregate Subordinate Amount, is equal to or
greater than 50% 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: The Custodial Agreement dated as of
February 28, 2005, among the Trustee, ▇▇▇▇▇ Fargo as Custodian, National City,
M&T and GreenPoint as such agreement may be amended or supplemented from time to
time, or any other custodial agreement entered into after the date hereof with
respect to any Loan subject to this Agreement.
CUSTODIAN: Either ▇▇▇▇▇ Fargo or any other custodian appointed
under any custodial agreement entered into after the date of this Agreement.
CUT-OFF DATE: February 1, 2005; except that with respect to
each Substitute Loan, the Cut-Off Date shall be the date of substitution.
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: The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository, for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a Clearing Agency.
DEPOSITORY 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 and Interim
Servicer, the day of the month set forth as the Determination Date in the
related Servicing Agreement.
DISQUALIFIED ORGANIZATION: A "disqualified organization" as
defined in Section 860E(e)(5) of the Code, and, for purposes of Article V
herein, any Person which is not a Permitted Transferee; provided, that a
Disqualified Organization does not include any Pass-Through Entity which owns or
holds a Residual Certificate and of which a Disqualified Organization, directly
or indirectly, may be a stockholder, partner or beneficiary.
DISTRIBUTION ACCOUNT: The trust account or accounts created
and maintained by the Securities Administrator pursuant to Section 3.23, for the
benefit of the related Certificateholders and designated "▇▇▇▇▇ Fargo Bank,
National Association, as Securities Administrator, in trust for registered
holders of Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Series 2005-2."
Funds in the Distribution Account shall be held in trust for the related
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 25th day (or, if such 25th day is not a
Business Day, the Business Day immediately succeeding such 25th day) of each
month, with the first such date being March 25, 2005.
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, (a) with respect to the Loans serviced by GreenPoint and National City,
the period commencing on the second day of the month immediately preceding the
month in which such Distribution Date occurs, (b) with respect to the Loans
serviced by M&T, the calendar month preceding the month in which such
Distribution Date occurs, and (c) with respect to the Loans serviced by an
Interim Servicer, the period set forth in the related Servicing Agreement.
ELIGIBLE ACCOUNT: Any account or accounts held and established
by the Securities Administrator in trust for the Certificateholders at any
Eligible Institution.
ELIGIBLE INSTITUTION: An institution having (i) the highest
short-term debt rating, and one of the two highest long-term debt ratings of
each Rating Agency, (ii) with respect to the Distribution Account, an unsecured
long-term debt rating of at least one of the two highest unsecured long-term
debt ratings of each Rating Agency, or (iii) the approval of each Rating Agency.
ELIGIBLE INVESTMENTS: Any one or more of the following
obligations or securities payable on demand or having a scheduled maturity on or
before the Business Day preceding the following Distribution Date (or, with
respect to the Distribution Account maintained with the Securities
Administrator, having a scheduled maturity on or before the following
Distribution Date; provided that, such Eligible Investments shall be managed by,
or an obligation of, the institution that maintains the Distribution Account if
such Eligible Investments mature on the Distribution Date), regardless of
whether any such obligation is issued by the Depositor, the applicable Servicer,
the Trustee, the Master Servicer, the Securities Administrator or any of their
respective Affiliates and having at the time of purchase, or at such other time
as may be specified, the required ratings, if any, provided for in this
definition:
(a) direct obligations of, or guaranteed as to full and timely
payment of principal and interest by, the United States or any agency or
instrumentality thereof, provided, that such obligations are backed by the full
faith and credit of the United States of America;
(b) direct obligations of, or guaranteed as to timely payment
of principal and interest by, ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or the Federal Farm Credit
System, provided, that any such obligation, at the time of purchase or
contractual commitment providing for the purchase thereof, is qualified by each
Rating Agency as an investment of funds backing securities rated "AAA" in the
case of S&P and ▇▇▇▇▇'▇ (the initial rating of the Senior Certificates);
(c) demand and time deposits in or certificates of deposit of,
or bankers' acceptances issued by, any bank or trust company, savings and loan
association or savings bank, provided, that the short-term deposit ratings
and/or long-term unsecured debt obligations of such depository institution or
trust company (or in the case of the principal depository institutions in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company) have, in the case of commercial paper, the
highest rating available for such securities by each Rating Agency and, in the
case of long-term unsecured debt obligations, one of the two highest ratings
available for such securities by each Rating Agency, or in each case such lower
rating as will not result in the downgrading or withdrawal of the rating or
ratings then assigned to any Class of Certificates by any Rating Agency but in
no event less than the initial rating of the Senior Certificates;
(d) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving one of the two
highest long-term debt ratings available for such securities by each Rating
Agency, or such lower rating as will not result in the downgrading or withdrawal
of the rating or ratings then assigned to any Class of Certificates by any
Rating Agency;
(e) commercial or finance company paper (including both
non-interest-bearing discount obligations and interest-bearing obligations
payable on demand or on a specified date not more than one year after the date
of issuance thereof) that is rated by each Rating Agency in its highest
short-term unsecured rating category at the time of such investment or
contractual commitment providing for such investment, and is issued by a
corporation the outstanding senior long-term debt obligations of which are then
rated by each Rating Agency in one of its two highest long-term unsecured rating
categories, or such lower rating as will not result in the downgrading or
withdrawal of the rating or ratings then assigned to any Class of Certificates
by any Rating Agency but in no event less than the initial rating of the Senior
Certificates;
(f) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation rated in one of the two highest rating
levels available to such issuers by each Rating Agency at the time of such
investment, provided, that any such agreement must by its terms provide that it
is terminable by the purchaser without penalty in the event any such rating is
at any time lower than such level; (g) repurchase obligations with respect to
any security described in clause (a) or (b) above entered into with a depository
institution or trust company (acting as principal) meeting the rating standards
described in (c) above;
(h) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States of
America or any State thereof and rated by each Rating Agency in one of its two
highest long-term unsecured rating categories at the time of such investment or
contractual commitment providing for such investment; provided, however, that
securities issued by any such corporation will not be Eligible Investments to
the extent that investment therein would cause the outstanding principal amount
of securities issued by such corporation that are then held as part of the
Distribution Account to exceed 20% of the aggregate principal amount of all
Eligible Investments then held in the Distribution Account;
(i) units of taxable money market funds (including those for
which the Trustee, the Securities Administrator, the Master Servicer or any
affiliate thereof receives compensation with respect to such investment) which
funds have been rated by each Rating Agency rating such fund in its highest
rating category or which have been designated in writing by each Rating Agency
as Eligible Investments with respect to this definition;
(j) if previously confirmed in writing to the Trustee and the
Securities Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to each Rating
Agency as a permitted investment of funds backing securities having ratings
equivalent to the initial rating of the 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 120% 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
excess of the Special Hazard Coverage, a Fraud Loss incurred on a Loan in excess
of the Fraud Coverage and a Bankruptcy Loss incurred on a Loan in excess of the
Bankruptcy Coverage.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, formerly known as the Federal National
Mortgage Association, or any successor thereto.
FDIC: Federal Deposit Insurance Corporation, or any successor
thereto.
FIRST FINANCIAL: First Financial Equities, Inc., a New York
corporation, or any successor thereto.
FIRST FINANCIAL SERVICING AGREEMENT: Shall mean the Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated as of February 1,
2005, between the Seller and First Financial (as modified pursuant to the
related Assignment Agreement).
FITCH: Fitch Ratings or any successor thereto.
FRAUD COVERAGE: As of the Cut-Off Date, will be approximately
$10,462.398.43 with respect to the Group I Loans and $1,091,009.64 with respect
to the Group II Loans. As of any date of determination after the Cut-Off Date,
the Fraud Coverage will generally be equal to:
(1) before the second Anniversary, an amount equal to:
(a) 2.00% of the aggregate Principal Balance of
the Group I Loans and Group II Loans as of
the Cut-Off Date, minus
(b) the aggregate amounts allocated to the
Certificates with respect to Fraud Losses on
the Group I Loans and Group II Loans up to
such date of determination;
(2) from the second to and including the fifth
Anniversary, an amount equal to:
(a) 1.00% of the aggregate Principal Balance of
the Group I Loans and Group II Loans as of
the Cut-Off Date, minus
(b) the aggregate amounts allocated to the
Certificates with respect to Fraud Losses on
the Group I Loans and Group II Loans up to
such date of determination;
(3) after the fifth Anniversary, the Fraud Coverage will
be zero.
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.
▇▇▇▇▇▇▇ 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.
GREENPOINT: GreenPoint Mortgage Funding, Inc., or any
successor thereto.
GREENPOINT SERVICING AGREEMENT: Shall mean the Amended and
Restated Master Mortgage Loan Purchase and Servicing Agreement, dated as of
January 1, 2005, between the Seller and GreenPoint (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 Interim Servicer and 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), 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
Interim Servicer or the related Servicer
pursuant to the terms of the related
Servicing Agreement or to the Master
Servicer, the Securities Administrator, the
Trustee or the Custodian pursuant to the
terms of this Agreement;
(f) reinvestment income on the balance of funds,
if any, in the Protected Accounts or the
Distribution Account;
(g) any fees payable to the Interim Servicers,
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 an Interim Servicer, a Servicer
and/or the Master Servicer with respect to the Group
I Loans for that Distribution Date;
(3) any amounts paid as Compensating Interest on the
Group I Loans by an Interim Servicer, a Servicer
and/or the Master Servicer for that Distribution
Date; and
(4) the total amount of any cash deposited in the
Distribution Account in connection with the
repurchase of any Group I Loan by the Depositor or
the Mortgage Loan Seller.
GROUP I LOANS: Those Loans having original terms to maturity
not greater than thirty (30) years and identified on the Loan Schedule as Group
I Loans.
GROUP I SENIOR CERTIFICATES: The Class I-A-1, Class I-A-2,
Class I-A-3, Class I-A-4, Class I-A-5, Class I-A-6 and Class I-A-7 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 Interim Servicer and 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
Interim Servicer or the related Servicer
pursuant to the terms of the related
Servicing Agreement or to the Master
Servicer, the Securities Administrator, the
Trustee or the Custodian pursuant to the
terms of this Agreement;
(f) reinvestment income on the balance of funds,
if any, in the Protected Accounts or the
Distribution Account;
(g) any fees payable to the Interim Servicers,
the Master Servicer (including any Mater
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 an Interim Servicer, a Servicer
and/or the Master Servicer with respect to the Group
II Loans for that Distribution Date;
(3) Any amounts paid as Compensating Interest on the
Group II Loans by an Interim Servicer, a Servicer
and/or the Master Servicer for that Distribution
Date; and
(4) The total amount of any cash deposited in the
Distribution Account in connection with the
repurchase of any Group II Loan by the Depositor or
the Mortgage Loan Seller.
GROUP II LOANS: Those Loans having original terms to maturity
of not greater than fifteen (15) years and identified on the Loan Schedule as
Group II Loans.
GROUP II SENIOR CERTIFICATES: The Class II-A-1, Class II-A-2,
Class II-A-3 and Class R Certificates.
INDEPENDENT: When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, each Servicer,
the Master Servicer and the Securities Administrator, (ii) does not have any
direct financial interest or any material indirect financial interest in the
Depositor, Servicer, the Master Servicer or the Securities Administrator or any
Affiliate of either 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.
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 Group I Senior Certificates
(other than the Class I-A-7 Certificates) and the Group II Senior Certificates
(other than the Class II-A-3 Certificates), (a) as to the Distribution Date in
March 2005, the period commencing on February 25, 2005, and ending on the day
preceding the Distribution Date in March 2005, and (b) as to any Distribution
Date after the Distribution Date in March 2005, the period commencing on the
Distribution Date in the month immediately preceding the month in which that
Distribution Date occurs and ending on the day preceding that Distribution Date.
The Interest Accrual Period for the Class I-A-7, Class II-A-3 and Subordinate
Certificates will be the calendar month preceding the month in which that
Distribution Date occurs. 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, the sum of (i) interest accrued on the related
Certificate which shall be equal to (a) the product of (1) 1/12th of the
Pass-Through Rate for such Class and (2) the aggregate Certificate Principal
Balance or Notional Amount, as applicable, for such Class before giving effect
to allocations of Realized Losses in connection with such Distribution Date or
distributions to be made on such Distribution Date, reduced by (b) Net Interest
Shortfalls allocated to such Class pursuant to the definition of "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.
INTERIM SERVICER: Any of Cameron, First Financial, Pinnacle
Direct or Pinnacle Financial.
INVESTMENT WITHDRAWAL DISTRIBUTION DATE: As defined in Section
3.23(c).
JUNIOR SUBORDINATE CERTIFICATES: The Class B-3, Class B-4 and
Class B-5 Certificates, collectively.
LAST SCHEDULED DISTRIBUTION DATE: The Distribution Date in
April 2035, 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 Group I Senior Certificates (other than the Class I-A-7
Certificates) and the Group II Senior Certificates (other than the Class II-A-3
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 ▇▇▇▇▇ 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
Group I Senior Certificates (other than the Class I-A-7 Certificates) and Group
II Senior Certificates (other than the Class II-A-3 Certificates) by the
Securities Administrator shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Group I Senior Certificates (other
than the Class I-A-7 Certificates) and Group II Senior Certificates (other than
the Class II-A-3 Certificates) 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 Interim
Servicer or Servicer, as applicable, 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 Interim Servicer or Servicer, as
applicable, 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
an Interim Servicer, 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 or 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; and
(xiv) the related Loan Group.
LOANS: The Mortgages and the related Mortgage Notes, each
transferred and assigned to the Trustee pursuant to the provisions hereof as
from time to time are held as part of the Trust Fund, as so identified in the
Loan Schedule. Each of the Loans is referred to individually in this Agreement
as a "Loan".
LOAN-TO-VALUE RATIO: The original principal amount of a Loan
divided by the Original Value; however, references to "current Loan-to-Value
Ratio" shall mean the then current Principal Balance of a Loan divided by the
Original Value.
M&T: M&T Mortgage Corporation, a New York banking corporation,
or any successor thereto.
M&T SERVICING AGREEMENT: The Interim Servicing and Servicing
Rights Purchase Agreement, dated as of March 1, 2004 between the Seller and M&T
(as modified pursuant to the related Assignment Agreement).
MASTER SERVICER: As of the Closing Date, ▇▇▇▇▇ Fargo Bank,
National Association and thereafter, its respective successors in interest who
meet the qualifications of this Agreement. The Master Servicer and the
Securities Administrator shall at all times be the same Person or Affiliates.
MASTER SERVICER EVENT OF DEFAULT: One or more of the events
described in Section 7.1 hereof.
MASTER SERVICING FEE: As to each Loan and any Distribution
Date, an amount equal to one twelfth of the product of the Master Servicing Fee
Rate multiplied by the Scheduled Principal Balance of such Loan as of the Due
Date in the month preceding the month of such Distribution Date.
MASTER SERVICING FEE RATE: 0.002% per annum.
MASTER SERVICING COMPENSATION: As defined in Section 3.14(b).
MONTHLY ADVANCE: As to any Mortgage Loan or REO Property, any
advance made by an Interim Servicer or a Servicer in respect of any
Determination Date or in respect of any Distribution Date by a successor
Servicer (including the Master Servicer) or by the Master Servicer 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: ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in
interest.
MORTGAGE: The mortgage, deed of trust or other instrument
creating a first lien on, or first priority security interest in, a Mortgaged
Property securing a Mortgage Note.
MORTGAGE FILE: The Loan Documents pertaining to a particular
Loan.
MORTGAGE INTEREST RATE: For any Loan, the per annum rate at
which interest accrues on such Loan pursuant to the terms of the related
Mortgage Note without regard to any reduction thereof as a result of the Relief
Act.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase
Agreement dated as of February 28, 2005 between the Depositor and the Seller.
MORTGAGE NOTE: The note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Loan.
MORTGAGE POOL: All of the Loans.
MORTGAGED PROPERTY: With respect to any Loan, the real
property, together with improvements thereto, securing the indebtedness of the
Mortgagor under the related Loan.
MORTGAGOR: The obligor on a Mortgage Note.
NATIONAL CITY: National City Mortgage Co., or any successor
thereto.
NATIONAL CITY SERVICING AGREEMENT: The Master Seller's
Warranties and Servicing Agreement, dated as of January 1, 2005 between the
Seller and National City (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 and the
Credit Risk Management Fee Rate.
NET WAC PASS THROUGH RATE: The Net WAC Pass Through Rate for
any Distribution Date and the Class I-A-1, Class I-A-3 and Class I-A-5
Certificates is a rate per annum equal to the weighted average of the Net
Mortgage Rates of the then outstanding Group I Loans, weighted based on their
Scheduled Principal Balances as of the first day of the calendar month preceding
the month in which the Distribution Date occurs. For federal income tax
purposes, the equivalent of the foregoing shall be expressed as the weighted
average of the Uncertificated REMIC II Pass-Through Rate on REMIC II Regular
Interest LT-IA1, REMIC II Regular Interest LT-IA3, REMIC II Regular Interest
LT-IA5 and REMIC II Regular Interest LT-IA7, weighted on the basis of the
Uncertificated Principal Balance of each such REMIC II Regular Interest.
The Net WAC Pass Through Rate for any Distribution Date and
the Class II-A-1 Certificates is a rate per annum equal to the weighted average
of the Net Mortgage Rates of the then outstanding Group II Loans, weighted based
on their Scheduled Principal Balances as of the first day of the calendar month
preceding the month in which the Distribution Date occurs. For federal income
tax purposes, the equivalent of the foregoing shall be expressed as the weighted
average of the Uncertificated REMIC II Pass-Through Rate on REMIC II Regular
Interest LT-IIA1 and REMIC II Regular Interest LT-IIA3, weighted on the basis of
the Uncertificated Principal Balance of each such REMIC II Regular Interest.
The Net WAC Pass Through Rate for any Distribution Date and
the Subordinate Certificates is a rate per annum equal to the weighted average
of the Net Mortgage Rates of the Group I Loans and the Group II Loans (weighted
on the basis of the results of subtracting from the aggregate Principal Balance
of each Loan Group the current aggregate Certificate Principal Balance of the
related Senior Certificates (other than the Class I-A-2, Class I-A-4, Class
I-A-6 and Class II-A-2 Certificates), as of the first day of the calendar month
preceding the month in which the Distribution Date occurs). For federal income
tax purposes, the equivalent of the foregoing shall be expressed as the weighted
average of the Uncertificated REMIC II Pass-Through Rates on REMIC II Regular
Interest LT-ISUB and REMIC II Regular Interest LT-IISUB, weighted on the basis
of the Uncertificated Principal Balance of each such REMIC II Regular Interest.
NET WAC RATE CARRYOVER AMOUNT: Will be (a) with respect to the
Class I-A-1 Certificates and any Distribution Date on which the Class I-A-1
Pass-Through Rate is limited to the related Net WAC Pass-Through Rate, an amount
equal to the sum of (i) the excess of (x) the amount of interest such Class
I-A-1 Certificates would have been entitled to receive on such Distribution Date
had the applicable Net WAC Pass-Through Rate not been applicable to such
Certificates on such Distribution Date over (y) the amount of interest paid on
such Distribution Date at the applicable Net WAC Pass-Through Rate plus (ii) the
Net WAC Rate Carryover Amount for the previous Distribution Date not previously
distributed together with interest thereon at a rate equal to the Class I-A-1
Pass-Through Rate for the most recently ended Interest Accrual Period determined
without taking into account the applicable Net WAC Pass-Through Rate; (b) with
respect to the Class I-A-3 Certificates and any Distribution Date on which the
Class I-A-3 Pass-Through Rate is limited to the related Net WAC Pass-Through
Rate, an amount equal to the sum of (i) the excess of (x) the amount of interest
such Class I-A-3 Certificates would have been entitled to receive on such
Distribution Date had the related Net WAC Pass-Through Rate not been applicable
to such Certificates on such Distribution Date over (y) the amount of interest
paid on such Distribution Date at the related Net WAC Pass-Through Rate and (ii)
the Net WAC Rate Carryover Amount for the previous Distribution Date not
previously distributed, together with interest thereon at a rate equal to the
Class I-A-3 Pass-Through Rate for the most recently ended Interest Accrual
Period determined without taking into account the related Net WAC Pass-Through
Rate; (c) with respect to the Class I-A-5 Certificates and any Distribution Date
on which the Class I-A-5 Pass-Through Rate is limited to the related Net WAC
Pass-Through Rate, an amount equal to the sum of (i) the excess of (x) the
amount of interest such Class I-A-5 Certificates would have been entitled to
receive on such Distribution Date had the related Net WAC Pass-Through Rate not
been applicable to such Certificates on such Distribution Date over (y) the
amount of interest paid on such Distribution Date at the related Net WAC
Pass-Through Rate and (ii) the Net WAC Rate Carryover Amount for the previous
Distribution Date not previously distributed, together with interest thereon at
a rate equal to the Class I-A-5 Pass-Through Rate for the most recently ended
Interest Accrual Period determined without taking into account the related Net
WAC Pass-Through Rate; and (d) with respect to the Class II-A-1 Certificates and
any Distribution Date on which the Class II-A-1 Pass-Through Rate is limited to
the related Net WAC Pass-Through Rate, an amount equal to the sum of (i) the
excess of (x) the amount of interest such Class II-A-1 Certificates would have
been entitled to receive on such Distribution Date had the related Net WAC
Pass-Through Rate not been applicable to such Certificates on such Distribution
Date over (y) the amount of interest paid on such Distribution Date at the
related Net WAC Pass-Through Rate and (ii) the Net WAC Rate Carryover Amount for
the previous Distribution Date not previously distributed, together with
interest thereon at a rate equal to the Class II-A-1 Pass-Through Rate for the
most recently ended Interest Accrual Period determined without taking into
account the related Net WAC Pass-Through Rate.
NONRECOVERABLE ADVANCE: With respect to any Loan, any Advance
or Servicing Advance which the related Servicer or Interim 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, Interim 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 I-A-2 Certificates
and any Distribution Date, an amount equal to the Certificate Principal Balance
of the Class I-A-1 Certificates. For federal income tax purposes the Notional
Amount of the Class I-A-2 Certificates will equal the Uncertificated Principal
Balance of REMIC II Regular Interest LT-IA1.
With respect to the Class I-A-4 Certificates and any
Distribution Date, an amount equal to the Certificate Principal Balance of the
Class I-A-3 Certificates. For federal income tax purposes the Notional Amount of
the Class I-A-4 Certificates will equal the Uncertificated Principal Balance of
REMIC II Regular Interest LT-IA3.
With respect to the Class I-A-6 Certificates and any
Distribution Date, an amount equal to the Certificate Principal Balance of the
Class I-A-5 Certificates. For federal income tax purposes the Notional Amount of
the Class I-A-6 Certificates will equal the Uncertificated Principal Balance of
REMIC II Regular Interest LT-IA5.
With respect to the Class II-A-2 Certificates and any
Distribution Date, an amount equal to the Certificate Principal Balance of the
Class II-A-1 Certificates. For federal income tax purposes the Notional Amount
of the Class II-A-2 Certificates will equal the Uncertificated Principal Balance
of REMIC II Regular Interest LT-IIA1.
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, an Interim Servicer,
a Servicer, the Securities Administrator or the Master Servicer, acceptable to
the Trustee, except that any opinion of counsel relating to (a) the
qualification of any REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
ORIGINAL VALUE: With respect to any Loan other than a Loan
originated for the purpose of refinancing an existing mortgage debt, the lesser
of (a) the Appraised Value (if any) of the Mortgaged Property at the time the
Loan was originated or (b) the purchase price paid for the Mortgaged Property by
the Mortgagor. With respect to a Loan originated for the purpose of refinancing
existing mortgage debt, the Original Value shall be equal to the lesser of (a)
the 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 I-A-1
Certificates and the Distribution Date in March 2005, approximately 3.00% per
annum, and with respect to any Distribution Date thereafter, a per annum rate
equal to the lesser of (a) One-Month LIBOR plus 0.40% per annum and (b) the
weighted average of the Net Mortgage Rates of the Group I Loans for the related
Distribution Date. For federal income tax purposes, the Pass-Through Rate on the
Class I-A-1 Certificates will equal the lesser of (a) One-Month LIBOR plus 0.40%
per annum and (b) the related Net WAC Pass-Through Rate.
With respect to the Class I-A-2 Certificates and the
Distribution Date in March 2005, approximately 2.9447% per annum, and with
respect to any Distribution Date thereafter, a per annum rate equal to the
excess, if any, of the weighted average of the Net Mortgage Rates of the Group I
Loans over One-Month LIBOR plus 0.40% per annum. For federal income tax
purposes, the Pass-Through Rate on the Class I-A-2 Certificates will equal (i)
the excess, if any, of (a) the Uncertificated REMIC II Pass-Through Rate on
REMIC II Regular Interest LT-IA1 over (b) One-Month LIBOR plus 0.40% per annum.
With respect to the Class I-A-3 Certificates and the
Distribution Date in March 2005, approximately 2.95% per annum, and with respect
to any Distribution Date thereafter, will be a per annum rate equal to the least
of (a) One-Month LIBOR plus 0.35% per annum, (b) the weighted average of the Net
Mortgage Rates of the Group I Loans for the related Distribution Date and (c)
6.25% per annum, with respect to the first twelve Distribution Dates and 8.50%
per annum, with respect to any Distribution Date thereafter. For federal income
tax purposes, the Pass-Through Rate on the Class I-A-3 Certificates will equal
the least of (a) One-Month LIBOR plus 0.35% per annum, (b) the Uncertificated
REMIC II Pass-Through Rate on REMIC II Regular Interest LT-IA3 and (c) 6.25% per
annum, with respect to the first twelve Distribution Dates and 8.50% per annum,
with respect to any Distribution Date thereafter.
With respect to the Class I-A-4 Certificates and the
Distribution Date in March 2005, approximately 2.9947% per annum, and with
respect to any Distribution Date thereafter, a per annum rate equal to the
excess, if any, of the weighted average of the Net Mortgage Rates of the Group I
Loans for the related Distribution Date over the lesser of (i) One-Month LIBOR
plus 0.35% per annum and (ii) 6.25% per annum, with respect to the first twelve
Distribution Dates and 8.50% per annum, with respect to any Distribution Date
thereafter. For federal income tax purposes, the Pass-Through Rate on the Class
I-A-4 Certificates will equal (i) the excess, if any, of (a) the Uncertificated
REMIC II Pass-Through Rate on REMIC II Regular Interest LT-IA3 over (b) the
lesser of (i) One-Month LIBOR plus 0.35% per annum and (ii) 6.25% per annum,
with respect to any Distribution Date thereafter.
With respect to the Class I-A-5 Certificates and the
Distribution Date in March 2005, approximately 3.10% per annum, and with respect
to any Distribution Date thereafter, a per annum rate equal to the lesser of (a)
One-Month LIBOR plus 0.50% per annum and (b) the weighted average of the Net
Mortgage Rates of the Group I Loans for the related Distribution Date. For
federal income tax purposes, the Pass-Through Rate on the Class I-A-5
Certificates will equal the lesser of (a) One-Month LIBOR plus 0.50% per annum
and (b) the related Net WAC Pass-Through Rate.
With respect to the Class I-A-6 Certificates and the
Distribution Date in March 2005, approximately 2.8447% per annum, and as to any
Distribution Date thereafter, a per annum rate equal to the excess, if any, of
the weighted average of the Net Mortgage Rates of the Group I Loans for the
related Distribution Date over One-Month LIBOR plus 0.50% per annum. For federal
income tax purposes, the Pass-Through Rate on the Class I-A-6 Certificates will
equal (i) the excess, if any, of (a) the Uncertificated REMIC II Pass-Through
Rate on REMIC II Regular Interest LT-IA5 over (b) One-Month LIBOR plus 0.50% per
annum.
With respect to the Class I-A-7 Certificates and the
Distribution Date in March 2005, approximately 5.9447% per annum, and with
respect to any Distribution Date thereafter, a per annum rate equal to the
weighted average of the Net Mortgage Rates of the Group I Loans for the related
Distribution Date. For federal income tax purposes, the Pass-Through Rate on the
Class I-A-7 Certificates will equal the Uncertificated REMIC II Pass-Through
Rate on REMIC II Regular Interest LT-IA7.
With respect to the Class II-A-1 Certificates and the
Distribution Date in March 2005, approximately 2.90% per annum, and with respect
to any Distribution Date thereafter, a per annum rate equal to lesser of (a)
One-Month LIBOR plus 0.30% per annum and (b) the weighted average of the Net
Mortgage Rates of the Group II Loans for the related Distribution Date. For
federal income tax purposes, the Pass-Through Rate on the Class II-A-1
Certificates will equal the lesser of (a) One-Month LIBOR plus 0.30% per annum
and (b) the related Net WAC Pass-Through Rate.
With respect to the Class II-A-2 Certificates and the
Distribution Date in March 2005, approximately 2.4532% per annum, and with
respect to any Distribution thereafter, a per annum rate equal to the excess, if
any, of the weighted average of the Net Mortgage Rates of the Group II Loans for
the related Distribution Date over (i) One-Month LIBOR plus 0.30% per annum. For
federal income tax purposes, the Pass-Through Rate on the Class II-A-2
Certificates will equal (i) the excess, if any, of (a) the Uncertificated REMIC
II Pass-Through Rate on REMIC II Regular Interest LT-II-A-2 over (b) One-Month
LIBOR plus 0.30% per annum.
With respect to the Class II-A-3 Certificates and the
Distribution Date in March 2005, approximately 5.3532% per annum, and with
respect to any Distribution Date thereafter, a per annum rate equal to the
weighted average of the Net Mortgage Rates of the Group II Loans for the related
Distribution Date. For federal income tax purposes, the Pass-Through Rate on the
Class II-A-3 Certificates will equal the Uncertificated REMIC II Pass-Through
Rate on REMIC II Regular Interest LT-IIA3.
With respect to the Subordinate Certificates and the
Distribution Date in March 2005, approximately 5.8888% per annum, and with
respect to any Distribution Date thereafter, will be a per annum rate equal to
the weighted average of the Net Mortgage Rates of the Group I Loans and the
Group II Mortgage Loans for the related Distribution Date (weighted on the basis
of the results of subtracting from the aggregate Principal Balance of each Loan
Group the current aggregate Certificate Principal Balance of the related Senior
Certificates (other than the Class I-A-2, Class I-A-4, Class I-A-6, and Class
II-A-2 Certificates)). For federal income tax purposes, the Pass-Through Rate on
the Subordinate Certificates will equal the weighted average of the
Uncertificated REMIC II Pass-Through Rates on REMIC II Regular Interest LT-ISUB
and REMIC II Regular Interest LT-IISUB.
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
Administration 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 ▇▇▇▇▇▇▇ 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.
PINNACLE DIRECT: Pinnacle Direct Funding Corporation, a
Florida corporation, or any successor thereto.
PINNACLE DIRECT SERVICING AGREEMENT: The Amended and Restated
Master Mortgage Loan Purchase and Interim Servicing Agreement, date as of
November 1, 2004 between the Seller and Pinnacle Direct (as modified pursuant to
the related Assignment Agreement).
PINNACLE FINANCIAL: Pinnacle Financial Corporation, a Florida
corporation, or any successor thereto.
PINNACLE FINANCIAL SERVICING AGREEMENT: The Amended and
Restated Master Mortgage Loan Purchase and Interim Servicing Agreement, date as
of January 1, 2005 between the Seller and Pinnacle Financial (as modified
pursuant to the related Assignment Agreement).
PLAN: As defined in Section 5.2.
PLAN ASSETS: As defined in Section 5.2.
PREPAID MONTHLY PAYMENT: Any Monthly Payment received prior to
its scheduled Due Date, which is intended to be applied to a Loan on its
scheduled Due Date and held in the related Protected Account until the related
Servicer Remittance Date following its scheduled Due Date.
PREPAYMENT CHARGE: With respect to any Principal Prepayment,
any prepayment premium, penalty or charge payable by a Mortgagor in connection
with any Principal Prepayment on a Loan pursuant to the terms of the related
Mortgage Note.
PREPAYMENT CHARGE SCHEDULE: As of any date, the list of Loans
providing for a Prepayment Charge included in the Trust Fund on such date,
attached hereto as Schedule Two (including the prepayment charge summary
attached thereto). The Depositor shall deliver or cause the delivery of the
Prepayment Charge Schedule to the Master Servicer, the Trustee and the Credit
Risk Manager on the Closing Date. The Prepayment Charge Schedule shall set forth
the following information with respect to each Prepayment Charge:
(i) the Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the date on which the first Monthly Payment was due
on the related Mortgaged Loan;
(iv) the term of the related Prepayment Charge;
(v) the original Principal Balance of the related Loan;
and
(vi) the Principal Balance of the related Loan as of the
Cut-Off Date.
PREPAYMENT INTEREST SHORTFALL: For any Distribution Date and
any Loan on which a Payoff was made by a Mortgagor during the related Prepayment
Period, an amount equal to one month's interest at the applicable Net Mortgage
Rate on such Loan less the amount of interest actually paid by the Mortgagor
with respect to such Payoff.
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 M&T, the period commencing on
the 16th day of the month preceding the month in which such Distribution Date
occurs and ending on the 15th day of the month in which such Distribution Date
occurs with respect to Payoffs, and the calendar month immediately preceding the
month in which such Distribution Date occurs with respect to Curtailments, (iii)
with respect to the Loans serviced by GreenPoint, the calendar month immediately
preceding the month in which such Distribution Date occurs, and (iv) with
respect to the Loans serviced by an Interim Servicer, as set forth in the
related Servicing Agreement.
PRINCIPAL BALANCE: For any Loan and at the time of any
determination, the principal balance of such Loan remaining to be paid at the
close of business on the Cut-Off Date, after deduction of all principal payments
due on or before the Cut-Off Date whether or not received, reduced by the
principal portion of all amounts received with respect to such Loan after the
Cut-Off Date and distributed or to be distributed to Certificateholders through
the Distribution Date in the month of such determination. In the case of a
Substitute Loan, "Principal Balance" shall mean, at the time of any
determination, the principal balance of such Substitute Loan on the related
Cut-Off Date, reduced by the principal portion of all amounts received with
respect to such Loan after the Cut-Off Date and distributed or to be distributed
to Certificateholders through the Distribution Date in the month of
determination. The Principal Balance of a Liquidated Loan shall be zero.
PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date and a Loan Group, the sum of:
(1) scheduled principal payments on the Group I Loans or
Group II Loans, as applicable, due during the related
Due Period;
(2) the principal portion of repurchase proceeds received
with respect to the Group I Loans or Group II Loans,
as applicable, 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 Group I Loans or Group II Loans,
as applicable, 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) Subsequent Recoveries received during the related Prepayment Period.
PRO RATA ALLOCATION: On any Distribution Date with respect to
(i) the allocation of the principal portion of certain losses relating to a
Group I Loan or Group II Loan to the related Senior Certificates (other than the
Class I-A-2, Class I-A-4, Class I-A-6 and Class II-A-2 Certificates) and/or to
the Subordinate Certificates, as applicable, pro rata, according to their
respective aggregate Certificate Principal Balances on such date of allocation;
and (ii) the allocation of the interest portion of certain losses relating to a
Group I Loan or Group II Loan to the related Senior Certificates and/or to the
Subordinate Certificates, as applicable, pro rata, first according to the
Interest Distribution Amounts due to such Classes on such date of allocation in
reduction thereof until the amount accrued but unpaid on such Distribution Date
has been reduced to zero and then, pro rata, according to their respective
aggregate Certificate Principal Balances on such date of allocation in reduction
thereof until the Certificate Principal Balances thereof have been reduced to
zero.
PROTECTED ACCOUNT: An account or accounts established and
maintained for the benefit of the Certificateholders by each Interim Servicer
and each Servicer with respect to the related Loans and with respect to REO
Property pursuant to the applicable Servicing Agreement.
PURCHASE OBLIGATION: An obligation of the Depositor or the
Seller to repurchase Loans under the circumstances and in the manner provided in
Section 2.3.
PURCHASE PRICE: With respect to any Loan to be purchased
pursuant to a Purchase Obligation, or any Loan to be purchased or repurchased
relating to an REO Property, and as confirmed by an Officers' Certificate from
the Master Servicer to the Trustee and the Securities Administrator, an amount
equal to the sum of (i) 100% of the Principal Balance thereof as of the date of
purchase (or in the case of an REO Property being purchased as provided in
Section 9.1, 100% of the fair market value of such REO Property), (ii) in the
case of (x) a Loan, accrued interest on such Principal Balance at the applicable
Net Mortgage Rate from the date interest was last paid by the related Mortgagor
or the date an Advance by the applicable Servicer or the Master Servicer, which
payment or Advance had as of the date of purchase been distributed pursuant to
Section 4.1, through the end of the calendar month in which the purchase is to
be effected and (y) an REO Property, the sum of (1) accrued interest on such
Principal Balance at the applicable Net Mortgage Rate from the date interest was
last paid by the related Mortgagor or the date an Advance by the applicable
Servicer or the Master Servicer through the end of the calendar month
immediately preceding the calendar month in which such REO Property was
acquired, plus (2) REO Imputed Interest for such REO Property for each calendar
month commencing with the calendar month in which such REO Property was acquired
and ending with the calendar month in which such purchase is to be effected, net
of the total of all net rental income, Insurance Proceeds, Liquidation Proceeds
and Advances that as of the date of purchase had been distributed as or to cover
REO Imputed Interest in accordance with the applicable Servicing Agreement,
(iii) any unreimbursed Servicing Advances and Advances (including Nonrecoverable
Advances) and any unpaid Servicing Fees or Master Servicing Fees allocable to
such Loan or REO Property and (iv) in the case of a Loan required to be
purchased pursuant to Section 2.3, expenses reasonably incurred or to be
incurred by the Master Servicer, the Interim Servicers, 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 Fitch and ▇▇▇▇▇'▇;
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. For any Distribution Date and any Loan
which is not a Liquidated Loan, the amount of any Bankruptcy Loss incurred with
respect to such Loan as of the related Due Date shall be treated as a Realized
Loss allocable to principal.
RECORD DATE: With respect to the Group I Senior Certificates
(other than the Class I-A-7 Certificates) and the Group II Senior Certificates
(other than the Class II-A-3 Certificates), the Business Day prior to the
related Distribution Date; and with respect to the Class I-A-7, Class II-A-3 and
Subordinate Certificates, the last Business Day of the month immediately
preceding the month in which the related Distribution Date occurs.
REFERENCE BANKS: ▇▇▇▇▇▇▇'▇ Bank PLC, The Tokyo Mitsubishi Bank
and National Westminster Bank PLC and their successors in interest; provided,
however, that if any of the foregoing banks are not suitable to serve as a
Reference Bank, then any leading banks selected by the Securities Administrator
which are engaged in transactions in Eurodollar deposits in the International
Eurocurrency market (i) with an established place of business in London, (ii)
not controlling, under the control of or under common control with the Depositor
or any Affiliate thereof and (iii) which have been designated as such by the
Securities Administrator.
REGULAR INTEREST CERTIFICATES: The Certificates, other than
the Class R 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 40th 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 laws.
RELIEF ACT INTEREST SHORTFALL: With respect to any
Distribution Date and a Loan, any reduction in the amount of interest
collectible on such Loan for the most recently ended calendar month immediately
preceding such Distribution Date as a result of the application of the Relief
Act.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
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,
REMIC II 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 Group I Loan or a Group II Loan; (iv) the primary
hazard insurance policies, if any, the primary insurance policies, if any, and
all other insurance policies with respect to the Loans; and (v) the Depositor's
interest in respect of the representations and warranties made by the Seller in
the Mortgage Loan Purchase Agreement as assigned to the Trustee pursuant to
Section 2.1 hereof. Notwithstanding the foregoing, however, REMIC I specifically
excludes the Reserve Funds, the Cap Contracts 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 shall accrue interest at the related
Uncertificated REMIC I Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
REMIC I SUBORDINATE BALANCE RATIO: The ratio among the
Uncertificated Principal Balances of each of the REMIC I Regular Interests
ending with the designation "SUB," equal to the ratio between:
(1) the excess of (x) the aggregate Scheduled Principal
Balance of the Group I Loans over (y) the aggregate Certificate Principal
Balance of the Group I Senior Certificates (other than the Class I-A-2, Class
I-A-4 and Class I-A-6 Certificates).
(2) the excess of (x) the aggregate Scheduled Principal
Balance of the Group II Loans over (y) the aggregate Certificate Principal
Balance of the Group II Senior Certificates (other than the Class II-A-2
Certificates).
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 REGULAR INTERESTS: Any of the separate
non-certificated beneficial ownership interests in REMIC II (as defined in the
Preliminary Statement) issued hereunder and designated as a Regular Interest in
REMIC II. Each REMIC II Regular Interest shall accrue interest at the related
Uncertificated REMIC II Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
REMIC III: The pool of assets consisting of the REMIC II
Regular Interests and all payments of principal or interest on or with respect
to the REMIC II Regular Interests after the Cut-Off Date.
REMIC III CERTIFICATES: The Group I Senior Certificates, Group
II Senior Certificates and the 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, one
month's interest at the applicable Net Mortgage Rate on the Scheduled Principal
Balance of such REO Property (or, in the case of the first such calendar month,
of the related Loan, if appropriate) as of the close of business on the
Distribution Date in such calendar month.
REO PROPERTY: A Mortgaged Property, title to which has been
acquired by a Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of foreclosure or otherwise.
RESERVE FUND: The Class I-A-1 Reserve Fund, the Class I-A-3
Reserve Fund, the Class I-A-5 Reserve Fund or the Class II-A-1 Reserve Fund, as
applicable.
RESIDUAL CERTIFICATEHOLDER: The registered Holder of a Class R
Certificate.
RESIDUAL CERTIFICATES: The Class R Certificates. Components
R-1, R-2 and R-3 of the Class R Certificates are hereby designated as the sole
Class of "residual interests" in each of REMIC I, REMIC II and REMIC III,
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 Ratings Services, a division of The
McGraw Hill Companies, Inc. provided, that at any time it is a Rating Agency.
SCHEDULED PRINCIPAL BALANCE: With respect to any Loan and a
Due Date, the unpaid principal balance of such Loan as specified in the
amortization schedule (before any adjustment to such schedule by reason of
bankruptcy or similar proceeding or any moratorium or similar waiver or grace
period) for such Due Date, after giving effect to any previously applied
Curtailments, the payment of principal on such Due Date and any reduction of the
Principal Balance of such Loan by a bankruptcy court, irrespective of any
delinquency in payment by the related Mortgagor.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIES ADMINISTRATOR: As of the Closing Date, ▇▇▇▇▇ Fargo
Bank, National Association and thereafter, its respective successors in interest
who meet the qualifications of this Agreement. The Securities Administrator and
the Master Servicer shall at all times be the same Person or Affiliates.
SELLER: DB Structured Products, Inc., or its successor in
interest, in its capacity as seller under the Mortgage Loan Purchase Agreement
and in its capacity as assignor under the Assignment Agreements.
SENIOR INTEREST SHORTFALL AMOUNT: For any Distribution Date
and the Group I Senior Certificates and Group II Senior Certificates will be
equal to that amount by which the Interest Distribution Amount payable to the
related Senior Certificates on such Distribution Date exceeds the Group I
Available Distribution Amount or Group II Available Distribution Amount, as
applicable.
SENIOR LIQUIDATION AMOUNT: For any Distribution Date and the
Group I Loans and Group II Loans, 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, and (ii) the related Senior Prepayment Percentage of the Liquidation
Principal with respect to such Loan.
SENIOR PERCENTAGE: As of the Closing Date, 94.45% for the
Group I Loans, and 94.45% for the Group II Loans; thereafter, with respect to a
Group I Loan and Group II Loan for 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 I-A-2, Class
I-A-4, Class I-A-6 and Class II-A-2 Certificates), as applicable, 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.
SENIOR PREPAYMENT PERCENTAGE: For Loan Group I and Loan Group
II and any Distribution Date, the percentage indicated in the following
table:
DISTRIBUTION DATE OCCURRING IN SENIOR PREPAYMENT PERCENTAGE
------------------------------ ----------------------------
March 2005 through February 2010.....................100%.
March 2010 through February 2011.....................Senior Percentage + 70% of the Subordinate Percentage
March 2011 through February 2012.....................Senior Percentage + 60% of the Subordinate Percentage
March 2012 through February 2013.....................Senior Percentage + 40% of the Subordinate Percentage
March 2013 through February 2014.....................Senior Percentage + 20% of the Subordinate Percentage
March 2014 and thereafter............................Senior Percentage
Notwithstanding the foregoing, the Senior Prepayment Percentage with respect to
the Group I Loans and Group II Loans will be equal to 100% on any Distribution
Date on which (i) the Aggregate Senior Percentage for that Distribution Date
exceeds the Aggregate Senior Percentage as of the Closing Date or (ii) the
aggregate Scheduled Principal Balance of the Group I Loans and Group II Loans
(including Group I Loans and Group II Loans in bankruptcy, foreclosure and
related REO Property) which are 60 or more days delinquent (averaged over the
preceding six-month period), as a percentage of the Aggregate Subordinate
Amount, is equal to or greater than 50% as of such Distribution Date, or
cumulative Realized Losses on the Group I Loans and Group II Loans allocated to
the Subordinate Certificates are greater than the following amounts:
PERCENTAGE OF THE AGGREGATE SUBORDINATE
DISTRIBUTION DATE OCCURRING IN AMOUNT AS OF THE CUT-OFF DATE
------------------------------ -----------------------------
March 2010 through February 2011............................. 30%
March 2011 through February 2012............................. 35%
March 2012 through February 2013............................. 40%
March 2013 through February 2014............................. 45%
March 2014 and thereafter.................................... 50%
If on any Distribution Date the allocation to the Group I Senior Certificates
(other than the Class I-A-2, Class I-A-4 and Class I-A-6 Certificates) or Group
II Senior Certificates (other than the Class II-A-2 Certificates) of Principal
Prepayments in the percentage required would reduce the sum of the aggregate
Certificate Principal Balances of the Group I Senior Certificates (other than
the Class I-A-2, Class I-A-4 and Class I-A-6 Certificates) or Group II Senior
Certificates (other than the Class II-A-2 Certificates) below zero, the Senior
Prepayment Percentage for such Distribution Date shall be limited to the
percentage necessary to reduce such sum to zero.
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;
(2) the related Senior Prepayment Percentage of the related
Principal Prepayment Amount; and
(3) the related Senior Liquidation Amount.
SERVICER: National City, GreenPoint or M&T, as applicable, or
any successor appointed under the applicable Servicing Agreement.
SERVICER REMITTANCE DATE: With respect to each Distribution
Date shall mean (i) with respect to National City and M&T, the 18th day of the
calendar month in which such Distribution Date occurs or, if such 18th day is
not a Business Day, the Business Day immediately preceding such 18th day, (ii)
with respect to GreenPoint, the 10th day of the calendar month in which such
Distribution Date occurs or, if such 10th day is not a Business Day, the
Business Day immediately preceding such 10th day, and (iii) with respect to each
Interim Servicer, the date set forth in the related Servicing Agreement.
SERVICING ADVANCES: The customary reasonable and necessary
"out-of-pocket" costs and expenses incurred prior to or on or after the Cut-Off
Date (the amounts incurred prior to the Cut-Off Date are identified on Schedule
3 hereto) by the related Interim Servicer or the related Servicer in connection
with a default, delinquency or other unanticipated event by the related Interim
Servicer, or 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 Interim Servicer or 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 Interim Servicer or Servicer,
as applicable, would not be ultimately recoverable from related Insurance
Proceeds or Liquidation Proceeds on such Loan or REO Property as provided
herein.
SERVICING AGREEMENT: The National City Servicing Agreement,
the GreenPoint Servicing Agreement, the M&T Servicing Agreement, the Cameron
Servicing Agreement, the First Financial Servicing Agreement, the Pinnacle
Direct Servicing Agreement or the Pinnacle Financial 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 one twelfth of the product of the related
Servicing Fee Rate multiplied by the Scheduled Principal Balance of such Loan as
of the Due Date in the month preceding the month of such Distribution Date. The
Servicing Fee is payable solely from collections of interest on the Loans or as
otherwise provided in the related Servicing Agreement.
SERVICING FEE RATE: 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.
SPECIAL HAZARD COVERAGE: As of the Cut-Off Date, approximately
$5,231,199.22 with respect to the Group I Loans and $2,610,000 with respect to
the Group II Loans. 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 Group
I Loans and Group II Loans located in the
zip code containing the largest aggregate
Principal Balance of the Group I Loans and
Group II Loans;
(b) 1.0% of the aggregate Principal Balance of
the Group I Loans and Group II Loans; and
(c) twice the Principal Balance of the largest
Group I Loan or Group II 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 related to the Group I Loans and Group
II Loans 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.
STEP DOWN PERCENTAGE: For the related Distribution Date and
the Class I-A-7 Certificates and Class II-A-3 Certificates, the percentage
indicated below:
DISTRIBUTION DATE OCCURRING IN: STEP DOWN PERCENTAGE:
------------------------------- ---------------------
March 2005 through February 2010 0%
March 2010 through February 2011 30%
March 2011 through February 2012 40%
March 2012 through February 2013 60%
March 2013 through February 2014 80%
March 2014 and thereafter 100%
SUBORDINATE CERTIFICATES: The Class M, Class B-1, Class B-2,
Class B-3, Class B-4 and Class B-5 Certificates.
SUBORDINATE LIQUIDATION AMOUNT: For a Distribution Date and
the Group I Loans and Group II Loans, 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 received during the related
Prepayment Period.
SUBORDINATE PERCENTAGE: For any Distribution Date and the
Group I Loans and Group II Loans, 100% minus the related Senior Percentage for
such date. As of the Closing Date, the Subordinate Percentage will be 5.55% with
respect to the Group I Loans and 5.55% with respect to the Group II Loans.
SUBORDINATE PREPAYMENT PERCENTAGE: For any Distribution Date,
100% minus the related Senior Prepayment Percentage. As of the Closing Date, the
Subordinate Prepayment Percentage will be 0% for the Group I Loans and 0% for
the Group II Loans.
SUBORDINATE PRINCIPAL AMOUNT: With respect to any Distribution
Date and the Group I Loans and Group II Loans, an amount equal to the sum of the
following for that Distribution Date:
(1) the related Subordinate Percentage of the related
Principal Distribution Amount;
(2) the related Subordinate Principal Prepayment Amount;
and
(3) the related Subordinate Liquidation Amount.
SUBORDINATE PRINCIPAL PREPAYMENT AMOUNT: For any Distribution
Date and the Group I Loans and Group II Loans, the related Subordinate
Prepayment Percentage of the Principal Prepayment Amount for such Distribution
Date.
SUBORDINATION LEVEL: On any specified date and 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 relating to the
Group I Loans or Group II Loans (other than the Class I-A-2, Class I-A-4, Class
I-A-6 and Class II-A-2 Certificates) as of such date, before giving effect to
distributions of principal or allocations of related Realized Losses on such
date.
SUBSEQUENT RECOVERIES: With respect to any Distribution Date,
all amounts received during the related Prepayment Period by the related Interim
Servicer or the related Servicer specifically related to a defaulted Loan or
disposition of an REO Property prior to the related Prepayment Period that
resulted in a Realized Loss, after the liquidation or disposition of such
defaulted Loan.
SUBSTITUTE LOAN: A mortgage loan substituted for a Deleted
Loan pursuant to the terms of this Agreement which must, on the date of such
substitution, (i) have an outstanding principal balance, after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, not in excess of the Scheduled Principal Balance of the
Deleted Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a Mortgage Interest Rate not less than (and not
more than one percentage point in excess of) the Mortgage Interest Rate of the
Deleted Loan, (iii) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Loan, (iv) have the same Due
Date as the Due Date on the Deleted Loan, (v) have a Loan-to-Value Ratio as of
the date of substitution equal to or lower than the Loan-to-Value Ratio of the
Deleted Loan as of such date, (vi) have a risk grading at least equal to the
risk grading assigned on the Deleted Loan, (vii) is a "qualified mortgage" as
defined in the REMIC Provisions and (viii) conform to each representation and
warranty set forth in Section 6 of the Mortgage Loan Purchase Agreement
applicable to the Deleted Loan. In the event that one or more mortgage loans are
substituted for one or more Deleted Loans, the amounts described in clause (i)
hereof shall be determined on the basis of aggregate principal balances, the
Mortgage Interest Rates described in clause (ii) hereof shall be determined on
the basis of weighted average Mortgage Interest Rates, the terms described in
clause (iii) hereof shall be determined on the basis of weighted average
remaining term to maturity, the Loan-to-Value Ratios described in clause (v)
hereof shall be satisfied as to each such mortgage loan, the risk gradings
described in clause (vi) hereof shall be satisfied as to each such mortgage loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (vii) hereof must be
satisfied as to each Substitute Loan or in the aggregate, as the case may be.
TAX MATTERS PERSON: The Holder of the Class R Certificates
issued hereunder or any Permitted Transferee of such Class R Certificateholder
shall be the initial "tax matters person" for REMIC I, REMIC II and REMIC III
within the meaning of Section 6231(a)(7) of the Code.
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, REMIC III, the Cap Contracts, the Reserve Funds and any amounts on deposit
therein and any proceeds thereof.
TRUST REMIC: Any of REMIC I , REMIC II or REMIC III.
TRUSTEE: HSBC Bank USA, National Association, a national
banking association, or its successor in interest, or any successor trustee
appointed as herein provided.
UNCERTIFICATED ACCRUED INTEREST: With respect to each 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 Interest LT-1GRP, the weighted average of the Net Mortgage Rates
on the Group I Loans for that Distribution Date. With respect to REMIC I Regular
Interest LT-2GRP, the weighted average of the Net Mortgage Rates on the Group II
Loans for that Distribution Date. With respect to REMIC I Regular Interest
LT-1SUB, REMIC I Regular Interest LT-2SUB, REMIC I Regular Interest LT-ZZZ and
REMIC I Regular Interest LT-R, the weighted average of the Net Mortgage Rates on
the Group I Loans and the Group II Loans for that Distribution Date.
UNCERTIFICATED REMIC II PASS-THROUGH RATE: With respect to
REMIC II Regular Interest LT-IA1, REMIC I Regular Interest LT-IA3, REMIC I
Regular Interest LT-IA5 and REMIC I Regular Interest LT-IA7, the weighted
average of the Uncertificated REMIC I Pass-Through Rate on REMIC I Regular
Interest LT-1GRP, weighted on the basis of the Uncertificated Principal Balance
of such REMIC I Regular Interest. With respect to REMIC II Regular Interest
LT-IIA1, REMIC II Regular Interest LT-IIA3 and REMIC II Regular Interest LT-R,
the weighted average of the Uncertificated REMIC I Pass-Through Rate on REMIC I
Regular Interest LT-2GRP, weighted on the basis of the Uncertificated Principal
Balance of such REMIC I Regular Interest. With respect to REMIC II Regular
interest LT-ISUB and REMIC II Regular Interest LT-IISUB, the weighted average of
the Uncertificated REMIC I Pass-Through Rate on REMIC I Regular Interest LT-1SUB
(subject to a cap and a floor equal to the weighted average of the Net Mortgage
Rates on the Group I Loans) and the Uncertificated REMIC I Pass-Through Rate on
REMIC I Regular Interest LT-2SUB (subject to a cap and a floor equal to the
weighted average of the Net Mortgage Rates on the Group II Loans), weighted on
the basis of the Uncertificated Principal Balance of each such REMIC I Regular
Interest.
UNDERWRITER: Deutsche Bank Securities Inc.
UNINSURED CAUSE: Any cause of damage to a Mortgaged Property
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained pursuant to Section 3.9.
U.S. PERSON: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for United States federal income tax purposes) created or organized
in, or under the laws of, the United States or any state thereof or the District
of Columbia (except, in the case of a partnership, to the extent provided in
regulations) or an estate whose income is subject to United States federal
income tax regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more such U.S. Persons have the authority to control all
substantial decisions of the trust. To the extent prescribed in regulations by
the Secretary of the Treasury, which have not yet been issued, a trust which was
in existence on August 20, 1996 (other than a trust treated as owned by the
grantor under subpart E of part 1 of subchapter J of chapter 1 of the Code), and
which was treated as a U.S. Person on August 20, 1996 may elect to continue to
be treated as a U.S. Person notwithstanding the previous sentence.
▇▇▇▇▇ FARGO: ▇▇▇▇▇ Fargo Bank, National Association, or any
successor thereto.
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 Unpaid 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.
For purposes of calculating the amount of Uncertificated
Accrued Interest for the REMIC II Regular Interests for any Distribution Date,
the aggregate amount of any Unpaid Interest Shortfalls incurred in respect of
the Loans for any Distribution Date shall be allocated to the REMIC II Regular
Interests, pro rata, to the extent of one month's interest at the then
applicable respective Uncertificated REMIC II Pass-Through Rate on the
Uncertificated Principal Balance of each such REMIC II Regular Interest.
ARTICLE II
CONVEYANCE OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 CONVEYANCE OF TRUST FUND. The Depositor,
concurrently with the execution and delivery hereof, does hereby transfer,
assign, set over and otherwise convey to the Trustee, on behalf of the Trust,
without recourse, for the benefit of the Certificateholders, all the right,
title and interest of the Depositor, including any security interest therein for
the benefit of the Depositor, in and to the Loans identified on the Loan
Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement
and the Assignment Agreements (including, without limitation the right to
enforce the obligations of the other parties thereto thereunder), and all other
assets included or to be included in REMIC I. Such assignment includes all
interest and principal received by the Depositor or the applicable Servicer on
or with respect to the Loans (other than payments of principal and interest due
on such Loans on or before the Cut-Off Date). The Depositor herewith delivers to
the Trustee executed copies of the Mortgage Loan Purchase Agreement, the
Servicing Agreements and the Assignment Agreements.
In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with the Custodian pursuant to the Custodial
Agreement the documents with respect to each Loan as described under Section 2
of the Custodial Agreement (the "Loan Documents"). In connection with such
delivery and as further described in the Custodial Agreement, the Custodian will
be required to review such Loan Documents and deliver to the Trustee, the
Depositor, the Master Servicer and the Seller certifications (in the forms
attached to the Custodial Agreement) with respect to such review with exceptions
noted thereon. In addition, the Depositor under the Custodial Agreement will
have to cure certain defects with respect to the Loan Documents for the related
Loans after the delivery thereof by the Depositor to the Custodian as more
particularly set forth therein.
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 Custodian pursuant to the terms and conditions of the Custodial
Agreement.
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 Custodian, such
documents including the mortgagee policy of title insurance and any Mortgage
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 Mortgage Loans permitted by the terms of this Agreement to
be included in the Trust are limited to (i) Mortgage Loans (which the Depositor
acquired pursuant to the Mortgage Loan Purchase Agreement, which contains, among
other representations and warranties, a representation and warranty of the
Seller that no Mortgage Loan 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. ▇▇▇. Laws Ch. 183C) or as defined in the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code ▇▇▇. 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 Agreement, are required to conform to, among other
representations and warranties, the representation and warranty of the Seller
that no Substitute Loan 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. ▇▇▇. Laws Ch. 183C) or as defined in the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code ▇▇▇. 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. ▇▇▇. Laws Ch. 183C) or as
defined in the Indiana Home Loan Practices Act, effective January 1, 2005 (Ind.
Code ▇▇▇. 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 Agreement, of the Loan Documents and all other assets included in the
definition of "REMIC I" under clauses (i), (iii), (iv) and (v) (to the extent of
amounts deposited into the Distribution Account) and declares that it holds (or
the Custodian on its behalf holds) and will hold such documents and the other
documents delivered to it constituting a Loan Document, and that it holds (or
the Custodian on its behalf holds) or will hold all such assets and such other
assets included in the definition of "REMIC I" in trust for the exclusive use
and benefit of all present and future Certificateholders.
Section 2.3 REPURCHASE OR SUBSTITUTION OF LOANS.
(a) Upon discovery or receipt of notice of any
materially defective document in, or that a document is missing from, a Mortgage
File or of a breach by the Seller of any representation, warranty or covenant
under the Mortgage Loan Purchase Agreement in respect of any Loan that
materially and adversely affects the value of such Loan or the interest therein
of the Certificateholders, the Trustee shall promptly notify the Seller of such
defect, missing document or breach and request that the Seller deliver such
missing document, cure such defect or breach within 60 days from the date the
Seller was notified of such missing document, defect or breach, and if the
Seller does not deliver such missing document or cure such defect or breach in
all material respects during such period, the Trustee shall enforce the
obligations of the Seller under the Mortgage Loan Purchase Agreement to
repurchase such Loan from REMIC I at the Purchase Price within 90 days after the
date on which the Seller was notified of such missing document, defect or
breach, if and to the extent that the Seller is obligated to do so under the
Mortgage Loan Purchase Agreement. The Purchase Price for the repurchased Loan
shall be deposited in the Distribution Account and the Trustee, upon receipt of
written certification from the Securities Administrator of such deposit and
receipt by the Custodian of a properly completed request for release for such
Loan in the form of EXHIBIT 3 to the Custodial Agreement, shall release or cause
the Custodian to release to the Seller the related Mortgage File and the Trustee
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as the Seller shall furnish
to it and as shall be necessary to vest in the Seller any Loan released pursuant
hereto, and the Trustee shall not have any further responsibility with regard to
such Mortgage File. In lieu of repurchasing any such Loan as provided above, if
so provided in the Mortgage Loan Purchase Agreement, the Seller may cause such
Loan to be removed from REMIC I (in which case it shall become a Deleted Loan)
and substitute one or more Substitute Loans in the manner and subject to the
limitations set forth in Section 2.3(b). It is understood and agreed that the
obligation of the Seller to cure or to repurchase (or to substitute for) any
Loan as to which a document is missing, a material defect in a constituent
document exists or as to which such a breach has occurred and is continuing
shall constitute the sole remedy respecting such omission, defect or breach
available to the Trustee and the Certificateholders. Notwithstanding the
foregoing, if the representation made by the Seller in Section 6(xxiv) of the
Mortgage Loan Purchase Agreement is breached, the Trustee shall enforce the
obligation of the Seller to repurchase such Loan at the Purchase Price, or to
provide a Substitute Loan (plus any costs and damages incurred by the Trust Fund
in connection with any violation by any such Loan of any predatory or abusive
lending law) within 90 days after the date on which the Seller was notified of
such breach.
In addition, promptly upon the earlier of discovery by the
Master Servicer or receipt of notice from the Servicer or the Seller to a
Responsible Officer of the Master Servicer of the breach of the representation
of the Seller set forth in Section 5(x) of the Mortgage Loan Purchase Agreement
which materially and adversely affects the interests of the Holders of the
Certificates in any Prepayment Charge, the Master Servicer shall promptly notify
the Seller and the Trustee of such breach. The Trustee shall enforce the
obligations of the Seller under the Mortgage Loan Purchase Agreement to remedy
such breach to the extent and in the manner set forth in the Mortgage Loan
Purchase Agreement.
(b) Any substitution of Substitute Loans for Deleted
Loans made pursuant to Section 2.3(a) must be effected prior to the date which
is two years after the Startup Day for REMIC I.
As to any Deleted Loan for which the Seller, substitutes a
Substitute Loan or Loans, such substitution shall be effected by the Seller
delivering to the Trustee or the Custodian on behalf of the Trustee, for such
Substitute Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the
Trustee, and such other documents and agreements, with all necessary
endorsements thereon, as are required by Section 2 of the Custodial Agreement,
as applicable, together with an Officers' Certificate providing that each such
Substitute Loan satisfies the definition thereof and specifying the Substitution
Shortfall Amount (as described below), if any, in connection with such
substitution. The Custodian on behalf of the Trustee shall acknowledge receipt
of such Substitute Loan or Loans and, within ten Business Days thereafter,
review such documents and deliver to the Depositor, the Trustee and the Master
Servicer, with respect to such Substitute Loan or Loans, an initial
certification pursuant to the Custodial Agreement, with any applicable
exceptions noted thereon. Within one year of the date of substitution, the
Custodian on behalf of the Trustee shall deliver to the Depositor, the Trustee
and the Master Servicer a final certification pursuant to the Custodial
Agreement with respect to such Substitute Loan or Loans, with any applicable
exceptions noted thereon. Monthly Payments due with respect to Substitute Loans
in the month of substitution are not part of REMIC I and shall be retained by
the Seller. For the month of substitution, distributions to Certificateholders
shall reflect the Monthly Payment due on such Deleted Loan on or before the Due
Date in the month of substitution, and the Seller shall thereafter be entitled
to retain all amounts subsequently received in respect of such Deleted Loan. The
Depositor shall give or cause to be given written notice to the
Certificateholders that such substitution has taken place, shall amend the Loan
Schedule to reflect the removal of such Deleted Loan from the terms of this
Agreement and the substitution of the Substitute Loan or Loans and shall deliver
a copy of such amended Loan Schedule to the Trustee and the Master Servicer.
Upon such substitution, such Substitute Loan or Loans shall constitute part of
the Trust Fund and shall be subject in all respects to the terms of this
Agreement and the Mortgage Loan Purchase Agreement including all applicable
representations and warranties thereof included herein or in the Mortgage Loan
Purchase Agreement.
For any month in which the Seller substitutes one or more
Substitute Loans for one or more Deleted Loans, the Master Servicer shall
determine the amount (the "Substitution Shortfall Amount"), if any, by which the
aggregate Purchase Price of all such Deleted Loans exceeds the aggregate of, as
to each such Substitute Loan, the Scheduled Principal Balance thereof as of the
Due Date in the month of substitution, together with one month's interest on
such Scheduled Principal Balance at the applicable Net Mortgage Rate, plus all
outstanding Advances and Servicing Advances (including Nonrecoverable Advances)
related thereto. On the date of such substitution, the Seller shall deliver or
cause to be delivered to the Securities Administrator for deposit in the
Distribution Account an amount equal to the Substitution Shortfall Amount, if
any, and the Trustee or the Custodian on behalf of the Trustee, upon receipt of
the related Substitute Loan or Loans and certification by the Securities
Administrator of such deposit and receipt by the Custodian of a properly
completed request for release for such Loan in the form of EXHIBIT 3 to the
Custodial Agreement, shall release to the Seller the related Mortgage File or
Files and the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as the
Seller shall deliver to it and as shall be necessary to vest therein any Deleted
Loan released pursuant hereto.
In addition, the Seller shall obtain at its own expense and
deliver to the Trustee an Opinion of Counsel to the effect that such
substitution will not cause (a) any federal tax to be imposed on any REMIC,
including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC to fail
to qualify as a REMIC at any time that any Certificate is outstanding.
(c) Upon discovery by the Depositor, the Seller, the
Master Servicer or the Trustee that any Loan does not constitute a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, the party
discovering such fact shall within two Business Days give written notice thereof
to the other parties. In connection therewith, the Seller shall repurchase or
substitute one or more Substitute Loans for the affected Loan within 90 days of
the earlier of discovery or receipt of such notice with respect to such affected
Loan. Such repurchase or substitution shall be made by (i) the Seller, if the
affected Loan's status as a non-qualified mortgage is or results from a breach
of any representation, warranty or covenant made by the Seller under the
Mortgage Loan Purchase Agreement or (ii) the Depositor, if the affected Loan's
status as a non-qualified mortgage does not result from a breach of
representation or warranty. Any such repurchase or substitution shall be made in
the same manner as set forth in Section 2.3(a). The Trustee shall reconvey to
the Seller or the Depositor the Loan to be released pursuant hereto in the same
manner, and on the same terms and conditions, as it would a Loan repurchased for
breach of a representation or warranty.
(d) Within 90 days of the earlier of discovery by the
Master Servicer or receipt of notice by the Master Servicer of the breach of any
representation, warranty or covenant of the Master Servicer set forth in Section
2.5 which materially and adversely affects the interests of the 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 AND RESIDUAL INTERESTS.
(a) The Trustee acknowledges the transfer to the
extent provided herein and assignment to it of the Trust Fund and, concurrently
with such transfer and assignment, has caused the Securities Administrator to
execute and authenticate and has delivered to or upon the order of the
Depositor, in exchange for the Trust Fund, Certificates evidencing the entire
ownership of the Trust Fund.
(b) This Agreement shall be construed so as to carry
out the intention of the parties that each of REMIC I, REMIC II and REMIC III be
treated as a REMIC at all times prior to the date on which the Trust Fund is
terminated. The "regular interests" (within the meaning of Section 860G(a)(1) of
the Code) in REMIC III shall consist of the Class I-A-1, Class I-A-2, Class
I-A-3, Class I-A-4, Class I-A-5, Class I-A-6, Class I-A-7, Class II-A-1, Class
II-A-2, Class II-A-3, Class M, Class B-1, Class B-2, Class B-3, Class B-4 and
Class B-5 Certificates. The "residual interest" (within the meaning of Section
860G(a)(2) of the Code) in REMIC III shall consist of Component R-3. The
"regular interests" (within the meaning of Section 860G(a)(1) of the Code) of
REMIC II shall consist of the REMIC II Regular Interests. The "residual
interest" (within the meaning of Section 860(G)(a)(2) of the Code) of REMIC II
shall consist of Component R-2. The "regular interests" (within the meaning of
Section 860G(a)(1) of the Code) of REMIC I shall 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:
(i) The Master Servicer is a national
banking association duly formed, validly existing and in good
standing under the laws of the United States of America and is
duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by the Master
Servicer;
(ii) The Master Servicer has the full
power and authority to conduct its business as presently
conducted by it and to execute, deliver and perform, and to
enter into and consummate, all transactions contemplated by
this Agreement. The Master Servicer has duly authorized the
execution, delivery and performance of this Agreement, has
duly executed and delivered this Agreement, and this
Agreement, assuming due authorization, execution and delivery
by the Depositor and the Trustee, constitutes a legal, valid
and binding obligation of the Master Servicer, enforceable
against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity;
(iii) The execution and delivery of this
Agreement by the Master Servicer, the consummation by the
Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the
terms hereof are in the ordinary course of business of the
Master Servicer and will not (A) result in a breach of any
term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation
or acceleration of, or result in a default under, the terms of
any other material agreement or instrument to which the Master
Servicer is a party or by which it may be bound, or any
statute, order or regulation applicable to the Master Servicer
of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Master
Servicer; and the Master Servicer is not a party to, bound by,
or in breach or violation of any indenture or other agreement
or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects or, to the
Master Servicer's knowledge, would in the future materially
and adversely affect, (x) the ability of the Master Servicer
to perform its obligations under this Agreement or (y) the
business, operations, financial condition, properties or
assets of the Master Servicer taken as a whole;
(iv) The Master Servicer does not believe,
nor does it have any reason or cause to believe, that it
cannot perform each and every covenant made by it and
contained in this Agreement;
(v) No litigation is pending against the
Master Servicer that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or the
ability of the Master Servicer to perform any of its other
obligations hereunder in accordance with the terms hereof;
(vi) There are no actions or proceedings
against, or investigations known to it of, the Master Servicer
before any court, administrative or other tribunal (A) that
might prohibit its entering into this Agreement, (B) seeking
to prevent the consummation of the transactions contemplated
by this Agreement or (C) that might prohibit or materially and
adversely affect the performance by the Master Servicer of its
obligations under, or validity or enforceability of, this
Agreement; and
(vii) No consent, approval, authorization
or order of any court or governmental agency or body is
required for the execution, delivery and performance by the
Master Servicer of, or compliance by the Master Servicer with,
this Agreement or the consummation by it of the transactions
contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.5 shall inure to the
benefit of the Trustee, the Depositor and the Certificateholders.
Section 2.6 ESTABLISHMENT OF THE TRUST.
The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust to be known, for convenience, as "Deutsche Alt-A Securities, Inc.,
Mortgage Loan Trust, Series 2005-2" and does hereby appoint HSBC Bank USA,
National Association, as Trustee in accordance with the provisions of this
Agreement.
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 and the Interim
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 and Interim 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 Interim Servicer and shall cause each
Servicer and Interim Servicer to perform and observe the covenants, obligations
and conditions to be performed or observed by such Servicer or Interim Servicer
under the applicable Servicing Agreement. The Master Servicer shall
independently and separately monitor each Servicer's and Interim 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', Interim
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 and the Interim
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 Interim Servicers, the Servicers
and the Master Servicer with any limited powers of attorney and other documents
in form as provided to it necessary or appropriate to enable the Interim
Servicers, 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 Interim Servicer or
Servicer pursuant to any such limited power of attorney and shall be indemnified
by the Master Servicer or such Interim Servicer or Servicer for any cost,
liability or expense arising from the misuse thereof by the Master Servicer or
such Servicer or Interim Servicer.
The Trustee, the Custodian and the Securities Administrator
shall provide access to the records and documentation in possession of the
Trustee, the Custodian or the Securities Administrator regarding the related
Loans and REO Property and the servicing thereof to the Certificateholders, the
FDIC, and the supervisory agents and examiners of the FDIC, such access being
afforded only upon reasonable prior written request and during normal business
hours at the office of the Trustee, the Custodian or the Securities
Administrator; provided, however, that, unless otherwise required by law, none
of the Trustee, the Custodian or the Securities Administrator shall be required
to provide access to such records and documentation if the provision thereof
would violate the legal right to privacy of any Mortgagor. The Trustee, the
Custodian and the Securities Administrator shall allow representatives of the
above entities to photocopy any of the records and documentation and shall
provide equipment for that purpose at a charge that covers the Trustee's, the
Custodian's or the Securities Administrator's actual costs.
The Trustee shall execute and deliver to the related Interim
Servicer, the related Servicer or the Master Servicer upon request any court
pleadings, requests for trustee's sale or other documents necessary or desirable
and, in each case, provided to the Trustee by such Interim Servicer, such
Servicer or Master Servicer to (i) the foreclosure or trustee's sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or any other Loan Document;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or any other Loan
Document or otherwise available at law or equity.
Section 3.2 REMIC-RELATED COVENANTS. For as long as each REMIC
shall exist, the Trustee and the Securities Administrator shall treat each REMIC
as a REMIC, and the Trustee and the Securities Administrator shall comply with
any directions of the Seller, the related Interim Servicer, the related Servicer
or the Master Servicer to assure such continuing treatment. In particular, the
Trustee shall not (a) sell or permit the sale of all or any portion of the Loans
or of any investment of deposits in an Account unless such sale is as a result
of a repurchase of the Loans pursuant to this Agreement or the Trustee has
received an Opinion of Counsel stating that such sale will not result in an
Adverse REMIC Event as defined in Section 10.1(f) hereof prepared at the expense
of the Trust Fund; and (b) other than with respect to a substitution pursuant to
the Mortgage Loan Purchase Agreement, the Assignment Agreements or Section 2.3
of this Agreement, as applicable, accept any contribution to any REMIC after the
Startup Day without receipt of an Opinion of Counsel stating that such
contribution will not result in an Adverse REMIC Event as defined in Section
10.1(f) hereof.
Section 3.3 MONITORING OF SERVICERS AND INTERIM SERVICERS. (a)
The Master Servicer shall be responsible for monitoring the compliance by each
Servicer and each Interim Servicer with its duties under the related Servicing
Agreement. In the review of each Servicer's and Interim Servicer's activities,
the Master Servicer may rely upon an officer's certificate of any Interim
Servicer or Servicer with regard to such Interim Servicer's or such Servicer's
compliance with the terms of its Servicing Agreement. In the event that the
Master Servicer, in its judgment, determines that an Interim Servicer or a
Servicer should be terminated in accordance with its Servicing Agreement, or
that a notice should be sent pursuant to such Servicing Agreement with respect
to the occurrence of an event that, unless cured, would constitute grounds for
such termination, the Master Servicer shall notify the Seller and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate.
(a) The Master Servicer, for the benefit of the
Trustee and the Certificateholders, shall enforce the obligations of each
Servicer and each Interim Servicer under the related Servicing Agreement, and
shall, in the event that a Servicer or an Interim Servicer fails to perform its
obligations in accordance with the related Servicing Agreement, subject to the
preceding paragraph, terminate the rights and obligations of such Servicer or
such Interim Servicer thereunder and act as servicer of the related Loans or to
cause the Trustee to enter in to a new Servicing Agreement with a successor
servicer selected by the Master Servicer; provided, however, it is understood
and acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Servicing Agreements
and the pursuit of other appropriate remedies, shall be in such form and carried
out to such an extent and at such time as the Master Servicer, in its good faith
business judgment, would require were it the owner of the related Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
provided that the Master Servicer shall not be required to prosecute or defend
any legal action except to the extent that the Master Servicer shall have
received indemnity reasonably acceptable to it for its costs and expenses in
pursuing such action.
(b) To the extent that the costs and expenses of the
Master Servicer related to any termination of an Interim Servicer or a Servicer,
appointment of a successor servicer or the transfer and assumption of servicing
by the Master Servicer with respect to any Servicing Agreement (including,
without limitation, (i) all legal costs and expenses and all due diligence costs
and expenses associated with an evaluation of the potential termination of the
related Interim Servicer or the related Servicer as a result of an event of
default by such Interim Servicer or such Servicer and (ii) all costs and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise to
enable the successor servicer to service the Loans in accordance with the
related Servicing Agreement) are not fully and timely reimbursed by the
terminated Interim Servicer or terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
(c) The Master Servicer shall require each Interim
Servicer and each Servicer to comply with the remittance requirements and other
obligations set forth in the related Servicing Agreement.
(d) If the Master Servicer acts as Interim Servicer
or Servicer, it shall not assume liability for the representations and
warranties of the Interim Servicer or the Servicer, if any, that it replaces.
Section 3.4 FIDELITY BOND. The Master Servicer, at its
expense, shall maintain in effect a blanket fidelity bond and an errors and
omissions insurance policy that would meet the requirements of ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac, affording coverage with respect to all directors, officers,
employees and other Persons acting on such Master Servicer's behalf, and
covering errors and omissions in the performance of the Master Servicer's
obligations hereunder. The errors and omissions insurance policy and the
fidelity bond shall be in such form and amount generally acceptable for entities
serving as master servicers or trustees. Any such errors and omissions policy
and fidelity bond may not be cancelable without thirty (30) days' prior written
notice to the Trustee.
Section 3.5 POWER TO ACT; PROCEDURES. The Master Servicer
shall master service the Loans and shall have full power and authority, subject
to the REMIC Provisions and the provisions of Article X hereof, to do any and
all things that it may deem necessary or desirable in connection with the master
servicing and administration of the Loans, including but not limited to the
power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Loan, in each case, in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable; provided, however,
that the Master Servicer shall not (and, consistent with its responsibilities
under Section 3.3, shall not permit any Interim Servicer or Servicer to)
knowingly or intentionally take any action, or fail to take (or fail to cause to
be taken) any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, would cause any REMIC to fail to qualify as a REMIC
or result in the imposition of a tax upon the Trust Fund (including but not
limited to the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code) unless the Master Servicer has received an Opinion of Counsel (but
not at the expense of the Master Servicer) to the effect that the contemplated
action will not cause any REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any REMIC. The Trustee shall furnish the Master
Servicer, upon written request from a Servicing Officer, with any powers of
attorney empowering the Master Servicer, or any Interim Servicer or Servicer to
execute and deliver instruments of satisfaction or cancellation, or of partial
or full release or discharge, and to foreclose upon or otherwise liquidate
Mortgaged Property, and to appeal, prosecute or defend in any court action
relating to the Loans or the Mortgaged Property, in accordance with the
applicable Servicing Agreement and this Agreement, and the Trustee shall execute
and deliver such other documents, as the Master Servicer, applicable Interim
Servicer or Servicer may request, to enable the Master Servicer to master
service and administer the Loans and carry out its duties hereunder, in each
case in accordance with Accepted Master Servicing Practices (and the Trustee
shall have no liability for the misuse of any such powers of attorney by the
Master Servicer, any Interim Servicer or any Servicer and shall be indemnified
by the Master Servicer, such Interim Servicer or such Servicer for any costs,
liabilities or expenses incurred by the Trustee in connection with such misuse).
If the Master Servicer or the Trustee has been advised that it is likely that
the laws of the state in which action is to be taken prohibit such action if
taken in the name of the Trustee or that the Trustee would be adversely affected
under the "doing business" or tax laws of such state if such action is taken in
its name, the Master Servicer shall join with the Trustee in the appointment of
a co-trustee pursuant to Section 8.10 hereof. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall not,
except in those instances where it is taking action authorized pursuant to this
Agreement to be taken by it in the name of the Trustee, be deemed to be the
agent of the Trustee.
Section 3.6 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS. To the
extent provided in the applicable Servicing Agreement and to the extent Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers and the Interim Servicers to enforce such clauses in accordance with
the applicable Servicing Agreement. If applicable law prohibits the enforcement
of a due-on-sale clause or such clause is otherwise not enforced in accordance
with the applicable Servicing Agreement, and, as a consequence, a Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 3.7 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of Payoff with respect to any
Loan, or the receipt by any Interim Servicer or any Servicer of a notification
that payment in full has been escrowed in a manner customary for such purposes
for payment to Certificateholders on the next Distribution Date, the applicable
Interim Servicer or Servicer will (or if the applicable Interim Servicer or the
applicable Servicer does not, the Master Servicer may), if required under the
applicable Servicing Agreement, promptly furnish to the Custodian, on behalf of
the Trustee, two copies of a request for release substantially in the form
attached to the Custodial Agreement, and signed by a Servicing Officer or in a
mutually agreeable electronic format which will, in lieu of a signature on its
face, originate from a Servicing Officer (which certification shall include a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Protected Account maintained by
the applicable Interim Servicer or Servicer pursuant to its Servicing Agreement
have been or will be so deposited) and shall request that the Custodian, on
behalf of the Trustee, deliver to the applicable Interim Servicer or Servicer
the related Mortgage File. Upon receipt of such certification and request, the
Custodian, on behalf of the Trustee, shall promptly release the related Mortgage
File to the applicable Interim Servicer or Servicer and the Trustee and
Custodian shall have no further responsibility with regard to such Mortgage
File. Upon any such Payoff, each Interim Servicer and each Servicer is
authorized to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Loan, an instrument of satisfaction (or assignment of
mortgage without recourse) regarding the Mortgaged Property subject to the
Mortgage, which instrument of satisfaction or assignment, as the case may be,
shall be delivered to the Person or Persons entitled thereto against receipt
therefor of such payment, it being understood and agreed that no expenses
incurred in connection with such instrument of satisfaction or assignment, as
the case may be, shall be chargeable to the Distribution Account.
(b) From time to time and as appropriate for the
servicing or foreclosure of any Loan and in accordance with the applicable
Servicing Agreement, the Trustee shall execute such documents as shall be
prepared and furnished to the Trustee by an Interim Servicer, a Servicer or the
Master Servicer (in form reasonably acceptable to the Trustee) and as are
necessary to the prosecution of any such proceedings. The Custodian, on behalf
of the Trustee, shall, upon the request of an Interim Servicer, a Servicer or
the Master Servicer, and delivery to the Custodian, on behalf of the Trustee, of
two copies of a request for release signed by a Servicing Officer substantially
in the form attached to the Custodial Agreement (or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate from
a Servicing Officer), release the related Mortgage File held in its possession
or control to the related Interim Servicer, the related Servicer or the Master
Servicer, as applicable. Such request for release shall obligate the Servicer,
the Interim Servicer or the Master Servicer to return the Mortgage File to the
Custodian on behalf of the Trustee, when the need therefor by the Interim
Servicer, the Servicer or the Master Servicer no longer exists unless the Loan
shall be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that hereinabove specified, the Mortgage File shall be
released by the Custodian, on behalf of the Trustee, to the Interim Servicer,
the Servicer or the Master Servicer.
Section 3.8 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit, and each
Interim Servicer and each Servicer (to the extent required by the related
Servicing Agreement) shall transmit to the Trustee or Custodian such documents
and instruments coming into the possession of the Master Servicer such Servicer
or Interim Servicer from time to time as are required by the terms hereof, or in
the case of the Interim Servicers and the Servicers, the applicable Servicing
Agreement, to be delivered to the Trustee or Custodian. Any funds received by
the Master Servicer, by an Interim Servicer or by a Servicer in respect of any
Loan or which otherwise are collected by the Master Servicer, by an Interim
Servicer or by a Servicer as Liquidation Proceeds, Insurance Proceeds or
Subsequent Recoveries in respect of any Loan shall be held for the benefit of
the Trustee and the related Certificateholders subject to the Master Servicer's
right to retain or withdraw from the Distribution Account the Master Servicing
Compensation and other amounts provided in this Agreement, and to the right of
each Interim Servicer and each Servicer to retain its Servicing Fee and other
amounts as provided in the applicable Servicing Agreement. The Master Servicer
shall, and (to the extent provided in the applicable Servicing Agreement) shall
cause each Interim Servicer and each Servicer to, provide access to information
and documentation regarding the Loans to the Trustee, its agents and accountants
at any time upon reasonable request and during normal business hours, and to
Certificateholders that are savings and loan associations, banks or insurance
companies, the OTS, the FDIC and the supervisory agents and examiners of such
Office and Corporation or examiners of any other federal or state banking or
insurance regulatory authority if so required by applicable regulations of the
OTS or other regulatory authority, such access to be afforded without charge but
only upon reasonable request in writing and during normal business hours at the
offices of the Master Servicer designated by it. In fulfilling such a request
the Master Servicer shall not be responsible for determining the sufficiency of
such information.
(b) All Mortgage Files and funds collected or held
by, or under the control of, the Master Servicer, in respect of any Loans,
whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master Servicer
for and on behalf of the Trustee and the related Certificateholders and shall be
and remain the sole and exclusive property of the Trustee; provided, however,
that the Master Servicer, each Interim Servicer and each Servicer shall be
entitled to setoff against, and deduct from, any such funds any amounts that are
properly due and payable to the Master Servicer, such Interim Servicer or such
Servicer under this Agreement or the applicable Servicing Agreement.
Section 3.9 STANDARD HAZARD INSURANCE AND FLOOD INSURANCE
POLICIES.
(a) For each Loan, the Master Servicer shall enforce
any obligation of the Interim Servicers and the Servicers under the related
Servicing Agreements to maintain or cause to be maintained standard fire and
casualty insurance and, where applicable, flood insurance, all in accordance
with the provisions of the related Servicing Agreements. It is understood and
agreed that such insurance shall be with insurers meeting the eligibility
requirements set forth in the applicable Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor or
to be maintained on property acquired in respect of a defaulted loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance.
(b) Pursuant to Section 3.23, any amounts collected
by the Master Servicer, by any Interim Servicer or by any Servicer, under any
insurance policies (other than amounts to be applied to the restoration or
repair of the property subject to the related Mortgage or released to the
Mortgagor in accordance with the applicable Servicing Agreement) shall be
deposited into the related Distribution Account, subject to withdrawal pursuant
to Section 3.24. Any cost incurred by the Master Servicer, any Interim Servicer
or any Servicer in maintaining any such insurance if the Mortgagor defaults in
its obligation to do so shall be added to the amount owing under the Loan where
the terms of the Loan so permit; provided, however, that the addition of any
such cost shall not be taken into account for purposes of calculating the
distributions to be made to Certificateholders and shall be recoverable by the
Master Servicer, such Interim Servicer or such Servicer pursuant to Section
3.24.
Section 3.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Interim Servicer or related Servicer to, prepare
and present on behalf of the Trustee and the related Certificateholders all
claims under any insurance policies and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to an Interim Servicer or to a
Servicer and remitted to the Master Servicer) in respect of such policies, bonds
or contracts shall be promptly deposited in the Distribution Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Loan to the insurer under any applicable
insurance policy need not be so deposited (or remitted).
Section 3.11 MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE
POLICIES.
(a) The Master Servicer shall not take, or permit any
Interim Servicer or any Servicer (to the extent such action is prohibited under
the applicable Servicing Agreement) to take, any action that would result in
noncoverage under any primary mortgage insurance policy or any loss which, but
for the actions of such Master Servicer, Interim Servicer or Servicer, would
have been covered thereunder. The Master Servicer shall use its best reasonable
efforts to cause each Interim Servicer and each Servicer (to the extent required
under the related Servicing Agreement) to keep in force and effect (to the
extent that the Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Loan in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable. The Master
Servicer shall not, and shall not permit any Interim Servicer or any Servicer
(to the extent required under the related Servicing Agreement) to, cancel or
refuse to renew any primary mortgage insurance policy that is in effect at the
date of the initial issuance of the Mortgage Note and is required to be kept in
force hereunder except in accordance with the provisions of this Agreement and
the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to cause each Interim
Servicer and each Servicer (to the extent required under the related Servicing
Agreement) to present, on behalf of the Trustee and the related
Certificateholders, claims to the insurer under any primary mortgage insurance
policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any primary mortgage insurance policies
respecting defaulted Loans. Pursuant to Sections 3.22 and 3.23, any amounts
collected by the Master Servicer, any Interim Servicer or any Servicer under any
primary mortgage insurance policies shall be deposited by the related Interim
Servicer or Servicer in its Protected Account or by the Master Servicer in the
Distribution Account, subject to withdrawal pursuant to Section 3.22 or 3.24, as
applicable.
Section 3.12 TRUSTEE TO RETAIN POSSESSION OF CERTAIN INSURANCE
POLICIES AND DOCUMENTS.
The Trustee or the applicable Custodian, shall retain
possession and custody of the originals (to the extent available) of any primary
mortgage insurance policies, or certificate of insurance if applicable, and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect of
the Certificates have been distributed in full and the Master Servicer otherwise
has fulfilled its obligations under this Agreement, the Trustee or the Custodian
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement and the Custodial
Agreement. The Master Servicer shall promptly deliver or cause to be delivered
to the Trustee or the Custodian, upon the execution or receipt thereof the
originals of any primary mortgage insurance policies, any certificates of
renewal, and such other documents or instruments that constitute Loan Documents
that come into the possession of the Master Servicer from time to time.
Section 3.13 REALIZATION UPON DEFAULTED LOANS. The Master
Servicer shall cause each Interim Servicer and each Servicer (to the extent
required under the related Servicing Agreement) to foreclose upon, repossess or
otherwise comparably convert the ownership of Mortgaged Properties securing such
of the Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments, all
in accordance with the applicable Servicing Agreement.
Section 3.14 COMPENSATION FOR THE MASTER SERVICER.
(a) In addition to the Master Servicer's right to
receive its Master Servicing Fee, all income and gain realized from any
investment of funds in the Distribution Account shall be for the benefit of the
Master Servicer as compensation (collectively, the "Master Servicing
Compensation"). Servicing compensation in the form of assumption fees, if any,
late payment charges, as collected, if any, or otherwise (but not including any
Prepayment Charges) shall be retained by the applicable Interim Servicer or
Servicer and shall not be deposited in the Protected Account. The Master
Servicer shall be required to pay all expenses incurred by it in connection with
its activities hereunder and shall not be entitled to reimbursement therefor
except as provided in this Agreement.
(b) The amount of the Master Servicing Fee payable to
the Master Servicer in respect of any Distribution Date shall be reduced in
accordance with Section 3.20.
Section 3.15 REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of
any REO Property in respect of any related Loan, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Interim Servicer or
Servicer to sell any REO Property as expeditiously as possible and in accordance
with the provisions of this Agreement and the related Servicing Agreement, as
applicable. Further, the Master Servicer shall, to the extent provided in the
related Servicing Agreement, cause the applicable Interim Servicer or Servicer
to sell any REO Property prior to three years after the end of the calendar year
of its acquisition by REMIC I, unless (i) the Trustee and the Securities
Administrator shall have been supplied with an Opinion of Counsel to the effect
that the holding by the Trust Fund of such REO Property subsequent to such
three-year period will not result in the imposition of taxes on "prohibited
transactions" of any REMIC hereunder as defined in Section 860F of the Code or
cause any REMIC hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding, in which case the Trust Fund may continue to hold
such Mortgaged Property (subject to any conditions contained in such Opinion of
Counsel) or (ii) the applicable Interim Servicer or Servicer shall have applied
for, prior to the expiration of such three-year period, an extension of such
three-year period in the manner contemplated by Section 856(e)(3) of the Code,
in which case the three-year period shall be extended by the applicable
extension period. The Master Servicer shall cause the applicable Interim
Servicer or Servicer (to the extent provided in the related Servicing Agreement)
to protect and conserve, such REO Property in the manner and to the extent
required by the applicable Servicing Agreement, in accordance with the REMIC
Provisions and in a manner that does not result in a tax on "net income from
foreclosure property" or cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required
by the related Servicing Agreement, cause the applicable Interim Servicer or
Servicer to deposit all funds collected and received in connection with the
operation of any REO Property in the Protected Account.
(c) The Master Servicer, the applicable Interim
Servicer and the applicable Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees or
Master Servicing Fees from Liquidation Proceeds received in connection with the
final disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Servicing Fees or Master Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of any
net rental income or other net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing
Agreement, the Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer, the applicable Interim
Servicer or the applicable Servicer as provided above shall be deposited in the
Protected Account on or prior to the Determination Date in the month following
receipt thereof and be remitted by wire transfer in immediately available funds
to the Master Servicer for deposit into the Distribution Account on the next
succeeding Remittance Date.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer shall deliver to the Trustee
and the Rating Agencies on or before March 15 of each year, commencing on March
15, 2006, an Officer's Certificate signed by a Servicing Officer, certifying
that with respect to the period ending December 31 of the prior year: (i) such
Servicing Officer has reviewed the activities of such Master Servicer during the
preceding calendar year or portion thereof and its performance under this
Agreement, (ii) to the best of such Servicing Officer's knowledge, based on such
review, such Master Servicer has performed and fulfilled its duties,
responsibilities and obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such duties, responsibilities or obligations, specifying each such default known
to such Servicing Officer and the nature and status thereof, (iii) nothing has
come to the attention of such Servicing Officer to lead such Servicing Officer
to believe that any Interim Servicer or Servicer has failed to perform any of
its duties, responsibilities and obligations under its Servicing Agreement in
all material respects throughout such year, or, if there has been a material
default in the performance or fulfillment of any such duties, responsibilities
or obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof.
(b) Copies of such statements shall be provided to
any related Certificateholder upon request, by the Master Servicer or by the
Trustee at the Master Servicer's expense if the Master Servicer failed to
provide such copies (unless (i) the Master Servicer shall have failed to provide
the Trustee with such statement or (ii) the Trustee shall be unaware of the
Master Servicer's failure to provide such statement).
Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT.
If the Master Servicer has, during the course of any fiscal year, directly
serviced any of the Loans, then the Master Servicer at its expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish a statement to the Trustee, the Rating Agencies and the Seller on or
before March 15 of each year, commencing on March 15, 2006 to the effect that,
with respect to the most recently ended fiscal year, such firm has examined
certain records and documents relating to the Master Servicer's performance of
its servicing obligations under this Agreement and pooling and servicing and
trust agreements in material respects similar to this Agreement and to each
other and that, on the basis of such examination conducted substantially in
compliance with the audit program for mortgages serviced for ▇▇▇▇▇▇▇ Mac or the
Uniform Single Attestation Program for Mortgage Bankers, such firm is of the
opinion that the Master Servicer's activities have been conducted in compliance
with this Agreement, or that such examination has disclosed no material items of
noncompliance except for (i) such exceptions as such firm believes to be
immaterial, (ii) such other exceptions as are set forth in such statement and
(iii) such exceptions that the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages Serviced by ▇▇▇▇▇▇▇ Mac requires it
to report. Copies of such statements shall be provided to any Certificateholder
upon request by the Master Servicer, or by the Trustee at the expense of the
Master Servicer if the Master Servicer shall fail to provide such copies (unless
(i) the Master Servicer shall have failed to provide the Trustee with such
statement or (ii) the Trustee shall be unaware of the Master Servicer's failure
to provide such statement). If such report discloses exceptions that are
material, the Master Servicer shall advise the Trustee whether such exceptions
have been or are susceptible of cure, and shall take prompt action to do so.
Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE
COMMISSION.
(a) Within 15 days after each Distribution Date, the
Master Servicer shall, in accordance with industry standards, file with the
Commission via the Electronic Data Gathering and Retrieval System ("▇▇▇▇▇"), a
Form 8-K with a copy of the statement to be furnished by the Securities
Administrator to the Certificateholders for such Distribution Date as an exhibit
thereto. Prior to January 30, 2006, the Master Servicer shall, in accordance
with industry standards, file a Form 15 Suspension Notice with respect to the
Trust Fund, if applicable. Prior to March 30, 2006 and annually thereafter (if
required), the Master Servicer shall file a Form 10-K, in substance conforming
to industry standards, with respect to the Trust Fund. Such Form 10-K shall
include, to the extent available, as exhibits (i) each applicable Servicer's
annual statement of compliance described under the related Servicing Agreement,
(ii) each applicable Servicer's accountant's report described under the related
Servicing Agreement, (iii) the Master Servicer's accountant's report described
in Section 3.17, if applicable, in each case to the extent timely delivered, if
applicable, to the Master Servicer, and (iv) a written certification signed by
an officer of the Master Servicer or the Depositor that complies with the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 as in effect on the date of this Agreement and the
February 3, 2003, Statement by the Staff of the Division of Corporation Finance
of the Commission Regarding Compliance by Asset-Backed Issuers with Exchange Act
Rules 13a-14 and 15d-14 as in effect as of the date of this Agreement. The
Depositor hereby grants to the Master Servicer a limited power of attorney to
execute and file each Form 8-K and Form 10-K on behalf of the Depositor. Such
power of attorney shall continue until either the earlier of (i) receipt by the
Master Servicer from the Depositor of written termination of such power of
attorney and (ii) the termination of the Trust Fund. The Depositor and the
Trustee each agree to promptly furnish to the Master Servicer, from time to time
upon request, such further information, reports and financial statements within
its control related to this Agreement and the Loans as the Master Servicer
reasonably deems appropriate to prepare and file all necessary reports with the
Commission. The Master Servicer shall cooperate with the Depositor in connection
with any additional filings with respect to the Trust Fund as the Depositor
deems necessary under the Exchange Act. Copies of all reports filed by the
Master Servicer under the Exchange Act shall be sent to the Depositor.
(b) The Master Servicer shall indemnify and hold
harmless the Depositor, the Trustee and their respective officers, directors and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach of the Master Servicer's
obligations under this Section 3.18 or the Master Servicer's negligence, bad
faith or willful misconduct in connection therewith. Fees and expenses incurred
by the Master Servicer in connection with this Section 3.18 shall not be
reimbursable from the Trust Fund.
Section 3.19 UCC. The Depositor shall file any financing
statements or amendments thereto required by any change in the Uniform
Commercial Code. The Depositor agrees to file continuation statements for any
such Uniform Commercial Code financing statements which the Seller or the
Depositor filed in connection with the Trust Fund.
Section 3.20 OBLIGATION OF THE MASTER SERVICER IN RESPECT OF
COMPENSATING INTEREST. The Master Servicer shall deposit in the Distribution
Account not later than each Distribution Account Deposit Date an amount equal to
the lesser of (i) the aggregate amounts required to be paid by the Interim
Servicers and the Servicers under the Servicing Agreements with respect to
Compensating Interest on the related Loans for the related Distribution Date,
and not so paid by the related Interim Servicers or the related Servicers and
(ii) the Master Servicing Fee for such Distribution Date without reimbursement
therefor.
Section 3.21 RESERVED.
Section 3.22 PROTECTED ACCOUNTS.
(a) The Master Servicer shall enforce the obligation
of each Interim Servicer and each Servicer to establish and maintain a Protected
Account in accordance with the applicable Servicing Agreement, with records to
be kept with respect thereto on a Loan by Loan basis, into which accounts shall
be deposited within 48 hours (or as of such other time specified in the related
Servicing Agreement) of receipt all collections of principal and interest on any
Loan and with respect to any REO Property received by an Interim Servicer and a
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, Subsequent Recoveries and advances made from the Interim Servicer's or
Servicer's own funds (less servicing compensation as permitted by the applicable
Servicing Agreement in the case of any Interim Servicer or any Servicer) and all
other amounts to be deposited in the Protected Account. Each Interim Servicer
and Servicer is hereby authorized to make withdrawals from and deposits to the
related Protected Account for purposes required or permitted by the related
Servicing Agreement. To the extent provided in the related Servicing Agreement,
the Protected Account shall be held in a depository institution and segregated
on the books of such institution in the name of the Trustee for the benefit of
the Certificateholders.
(b) To the extent provided in the related Servicing
Agreement, amounts on deposit in a Protected Account may be invested in Eligible
Investments in the name of the Trustee for the benefit of Certificateholders
and, except as provided in the preceding paragraph, not commingled with any
other funds, such Eligible Investments to mature, or to be subject to redemption
or withdrawal, no later than the date on which such funds are required to be
withdrawn for deposit in the Distribution Account, and shall be held until
required for such deposit. The income earned from Eligible Investments made
pursuant to this Section 3.22 shall be paid to the related Servicer or Interim
Servicer under the applicable Servicing Agreement, and amount required to be
distributed to the Certificateholders resulting from the loss of monies on such
investments shall be borne by and be the risk of the related Interim Servicer or
the related Servicer. The related Interim Servicer or the related Servicer (to
the extent provided in the Servicing Agreement) shall deposit the amount of any
such loss in the Protected Account within two Business Days of receipt of
notification of such loss but not later than the second Business Day prior to
the Distribution Date on which the moneys so invested are required to be
remitted to the Master Servicer or the Securities Administrator.
(c) To the extent provided in the related Servicing
Agreement and subject to this Article III, on or before each Servicer Remittance
Date, the related Interim Servicer and the related Servicer shall withdraw or
shall cause to be withdrawn from the Protected Accounts and shall immediately
deposit or cause to be deposited in the Distribution Account amounts
representing the following collections and payments (other than with respect to
principal of or interest on the Loans due on or before the Cut-Off Date):
(i) Monthly Payments on the Loans received
or any related portion thereof advanced by the Interim
Servicer or the Servicers pursuant to the Servicing Agreements
which were due on or before the related Due Date, net of the
amount thereof comprising the Servicing Fees;
(ii) Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and Subsequent Recoveries
received by the Interim Servicers or the Servicers with
respect to such Loans in the related Prepayment Period,
Compensating Interest and the amount of any related Prepayment
Charges; and
(iii) Any amount to be used as an Advance.
(d) Withdrawals may be made from an Account only to
make remittances as provided in Section 3.22(c), 3.23 and 3.24 or as otherwise
provided in the Servicing Agreements; to reimburse the Master Servicer, an
Interim Servicer or a Servicer for Advances which have been recovered by
subsequent collection from the related Mortgagor; to remove amounts deposited in
error; to remove fees, charges or other such amounts deposited on a temporary
basis; or to clear and terminate the account at the termination of this
Agreement in accordance with Section 9.1. As provided in Sections 3.22(c) and
3.23(b) or as otherwise provided in the Servicing Agreements certain amounts
otherwise due to the Interim Servicers and the Servicers may be retained by them
and need not be deposited in the Distribution Account.
Section 3.23 DISTRIBUTION ACCOUNT.
(a) The Securities Administrator shall establish and
maintain, a Distribution Account with respect to the Loans as a segregated trust
account or accounts. The Master Servicer shall deposit in the Distribution
Account as identified by the Master Servicer and as received by the Master
Servicer, the following amounts with respect to the related Loans for the
benefit of the related Certificateholders:
(i) Any amounts withdrawn from a Protected
Account;
(ii) Any Advance and any amounts in respect
of Prepayment Interest Shortfalls or Curtailment Shortfalls;
(iii) Any Insurance Proceeds, Liquidation
Proceeds or Subsequent Recoveries received by or on behalf of
the Master Servicer;
(iv) The Purchase Price with respect to any
Loans purchased by the Seller pursuant to Section 2.3 and all
proceeds of any Loans or property acquired with respect
thereto purchased by the Master Servicer pursuant to Section
9.1;
(v) Any amounts required to be deposited by
the Master Servicer or any Servicer with respect to losses on
investments of deposits in an Account; and
(vi) Any other amounts received by or on
behalf of the Master Servicer and required to be deposited in
the Distribution Account pursuant to this Agreement.
(b) All amounts deposited to the Distribution Account
shall be held by the Securities Administrator in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption,
tax service, statement account or payoff, substitution, satisfaction, release
and other like fees and charges, need not be credited by the Master Servicer,
the related Interim Servicer or the related Servicer to the Distribution
Account. In the event that the Master Servicer shall deposit or cause to be
deposited to the Distribution Account any amount not required to be credited
thereto, the Securities Administrator, upon receipt of a written request
therefor signed by a Servicing Officer of the Master Servicer, shall promptly
transfer such amount to the Master Servicer, any provision herein to the
contrary notwithstanding.
(c) The Distribution Account shall constitute a trust
account of the Trust Fund segregated on the books of the Securities
Administrator and held by the Securities Administrator in trust in its Corporate
Trust Office, and the Distribution Account and the funds deposited therein shall
not be subject to, and shall be protected from, all claims, liens, and
encumbrances of any creditors or depositors of the Securities Administrator
(whether made directly, or indirectly through a liquidator or receiver of the
Securities Administrator). The amount at any time credited to the Distribution
Account shall be invested in the name of the Master Servicer, in such Eligible
Investments selected by the Master Servicer or deposited in demand deposits with
such depository institutions as selected by the Master Servicer, provided that
time deposits of such depository institutions would be an Eligible Investment.
All Eligible Investments shall mature or be subject to redemption or withdrawal
on or before, and shall be held until, the Distribution Date following the date
of the investment of such funds (the "Investment Withdrawal Distribution Date")
if the obligor for such Eligible Investment is the Securities Administrator or,
if such obligor is any other Person, the Business Day preceding such Investment
Withdrawal Distribution Date. All investment earnings on amounts on deposit in
the Distribution Account from time to time shall be for the account of the
Master Servicer. The Master Servicer shall be permitted to receive distribution
of any and all investment earnings from the Distribution Account on each
Distribution Date. If there is any loss on an Eligible Investment or demand
deposit, the Master Servicer shall deposit such amount in the Distribution
Account. With respect to the Distribution Account and the funds deposited
therein, the Securities Administrator shall take such action as may be necessary
to ensure that the related Certificateholders shall be entitled to the
priorities afforded to such a trust account (in addition to a claim against the
estate of the Securities Administrator) as provided by 12 U.S.C. ss. 92a(e), and
applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking corporations.
Section 3.24 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE
DISTRIBUTION ACCOUNT.
(a) The Securities Administrator shall, from time to
time on demand of the Master Servicer make or cause to be made such withdrawals
or transfers from the Distribution Account as the Master Servicer has designated
for such transfer or withdrawal pursuant to the Servicing Agreements for the
following purposes, not in any order of priority:
(i) to reimburse the Master Servicer, any
Interim Servicer or any Servicer for any Advance of its own
funds, the right of the Master Servicer, an Interim Servicer
or a Servicer to reimbursement pursuant to this subclause (i)
being limited to amounts received on a particular Loan
(including, for this purpose, the Purchase Price therefor,
Insurance Proceeds and Liquidation Proceeds) which represent
late payments or recoveries of the principal of or interest on
such Loan respecting which such Advance was made;
(ii) to reimburse the Master Servicer, any
Interim Servicer or any Servicer from Insurance Proceeds or
Liquidation Proceeds relating to a particular Loan for amounts
expended by the Master Servicer, such Interim Servicer or such
Servicer in good faith in connection with the restoration of
the related Mortgaged Property which was damaged by an
Uninsured Cause or in connection with the liquidation of such
Loan;
(iii) to reimburse the Master Servicer, any
Interim Servicer or any Servicer from Insurance Proceeds
relating to a particular Loan for insured expenses incurred
with respect to such Loan and to reimburse the Master
Servicer, such Interim Servicer or such Servicer from
Liquidation Proceeds from a particular Loan for Liquidation
Expenses incurred with respect to such Loan;
(iv) to pay the Master Servicer, any Interim
Servicer or any Servicer, as appropriate, from Liquidation
Proceeds or Insurance Proceeds received in connection with the
liquidation of any Loan, the amount which it, such Interim
Servicer or such Servicer would have been entitled to receive
under subclause (vii) of this Subsection (a) as servicing
compensation on account of each defaulted scheduled payment on
such Loan if paid in a timely manner by the related Mortgagor;
(v) to pay the Master Servicer, any Interim
Servicer or any Servicer from the Purchase Price for any Loan,
the amount which it, such Interim Servicer or such Servicer
would have been entitled to receive under subclause (vii) of
this Subsection (a) as servicing compensation;
(vi) to reimburse the Master Servicer, any
Interim Servicer or any Servicer for any Nonrecoverable
Advance, after a Realized Loss has been allocated with respect
to the related Loan if the Advance or Servicing Advance has
not been reimbursed pursuant to clause (i);
(vii) to pay the Master Servicing Fee and
any and all other Master Servicing Compensation to the Master
Servicer, the Servicing Fee to the Interim Servicers and the
Servicers (to the extent such Servicing Fee was not retained
by the Interim Servicer or the Servicer pursuant to the
related Servicing Agreement), the Credit Risk Management Fee
to the Credit Risk Manager for such Distribution Date and to
reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to
Sections 3.3, 6.3; 8.5 and 10.1.
(viii) to reimburse or pay any Interim
Servicer or any Servicer any such amounts as are due thereto
under the applicable Servicing Agreement and have not been
retained by or paid to the Interim Servicer or the Servicer,
to the extent provided in the related Servicing Agreement;
(ix) to reimburse the Trustee, the Custodian
and the Securities Administrator for expenses, costs and
liabilities, if any, incurred by or reimbursable to such
parties pursuant to this Agreement;
(x) to remove amounts deposited in error;
and
(xi) to clear and terminate the Distribution
Account pursuant to Section 9.1.
(b) The Master Servicer shall keep and maintain
separate accounting, on a Loan by Loan basis, for the purpose of accounting for
any reimbursement from the Distribution Account pursuant to subclauses (i)
through (vi), inclusive, or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the Master
Servicer without being deposited in the Distribution Account under Section
3.23(b).
(c) On each Distribution Date, the Securities
Administrator shall distribute the Group I Available Distribution Amount and
Group II Available Distribution Amount to the Holders of the Group I Senior,
Group II Senior and Subordinate Certificates in accordance with Section 4.1.
Section 3.25 RESERVE FUNDS.
(a) No later than the Closing Date, the Securities
Administrator shall establish and maintain four separate segregated trust
accounts titled, "Class I-A-1 Reserve Fund, ▇▇▇▇▇ Fargo Bank, National
Association, in trust for the registered holders of Deutsche Alt-A Securities,
Inc. Mortgage Loan Trust, Series 2005-2, Class I-A-1 Mortgage Pass-Through
Certificates," "Class I-A-3 Reserve Fund, ▇▇▇▇▇ Fargo Bank, National
Association, in trust for the registered holders of Deutsche Alt-A Securities,
Inc. Mortgage Loan Trust, Series 2005-2, Class I-A-3 Mortgage Pass-Through
Certificates", "Class I-A-5 Reserve Fund, ▇▇▇▇▇ Fargo Bank, National
Association, in trust for the registered holders of Deutsche Alt-A Securities,
Inc. Mortgage Loan Trust, Series 2005-2, Class I-A-5 Mortgage Pass-Through
Certificates", and "Class II-A-1 Reserve Fund, ▇▇▇▇▇ Fargo Bank, National
Association, in trust for the registered holders of Deutsche Alt-A Securities,
Inc. Mortgage Loan Trust, Series 2005-2, Class II-A-1 Mortgage Pass-Through
Certificates."
(b) On each Distribution Date, the Securities
Administrator will deposit (from amounts otherwise payable to the Class B-3,
Class B-4 and Class B-5 Certificates, pursuant to Section 4.1(a)(v)) into the
Class I-A-1 Reserve Fund an amount equal to the amount by which the sum of the
Net WAC Rate Carryover Amounts with respect to the Class I-A-1 Certificates
exceeds the sum of any amounts received by the Securities Administrator with
respect to the related Cap Agreement since the prior Distribution Date. On each
Distribution Date, after making the distributions required under Section
4.1(a)(i) through (iv), the Securities Administrator will withdraw from the
Class I-A-1 Reserve Fund the amounts on deposit therein (which shall include any
payments received under the related Cap Contract) and distribute such amounts to
the Class I-A-1 Certificates in respect of any Net WAC Rate Carryover Amounts
due to the Class I-A-1 Certificates as set forth in Section 4.1(a)(v) and
(b)(iv).
(c) On each Distribution Date, the Securities
Administrator will deposit (from amounts otherwise payable to the Class B-3,
Class B-4 and Class B-5 Certificates, pursuant to Section 4.1(a)(v)) into the
Class I-A-3 Reserve Fund an amount equal to the amount by which the sum of the
Net WAC Rate Carryover Amounts with respect to the Class I-A-3 Certificates
exceeds the sum of any amounts received by the Securities Administrator with
respect to the related Cap Contract since the prior Distribution Date. On each
Distribution Date, after making the distributions required under Section
4.1(a)(i) through (iv), the Securities Administrator will withdraw from the
Class I-A-3 Reserve Fund the amounts on deposit therein (which shall include any
payments received under the related Cap Contract) and distribute such amounts to
the Class I-A-3 Certificates in respect of any Net WAC Rate Carryover Amounts
due to the Class I-A-3 Certificates as set forth in Section 4.1(a)(v) and
(b)(iv).
(d) On each Distribution Date, the Securities
Administrator will deposit (from amounts otherwise payable to the Class B-3,
Class B-4 and Class B-5 Certificates, pursuant to Section 4.1(a)(v)) into the
Class I-A-5 Reserve Fund, an amount equal to the amount by which the sum of the
Net WAC Rate Carryover Amounts with respect to the Class I-A-5 Certificates
exceeds the sum of any amounts received by the Securities Administrator with
respect to the related Cap Contract since the prior Distribution Date. On each
Distribution Date, after making the distributions required under Section
4.1(a)(i) through (iv), the Securities Administrator will withdraw from the
Class I-A-5 Reserve Fund the amounts on deposit therein (which shall include any
payments received under the related Cap Contract) and distribute such amounts to
the Class I-A-5 Certificates in respect of any Net WAC Rate Carryover Amounts
due to the Class I-A-5 Certificates as set forth in Section 4.1(a)(v) and
(b)(iv).
(e) On each Distribution Date, the Securities
Administrator will deposit (from amounts otherwise payable to the Class B-3,
Class B-4 and Class B-5 Certificates, pursuant to Section 4.1(a)(v)) into the
Class II-A-1 Reserve Fund, an amount equal to the amount by which the sum of the
Net WAC Rate Carryover Amounts with respect to the Class II-A-1 Certificates
exceeds the sum of any amounts received by the Securities Administrator with
respect to the related Cap Contract since the prior Distribution Date. On each
Distribution Date, after making the distributions required under Section
4.1(a)(i) through (iv), the Securities Administrator will withdraw from the
Class II-A-1 Reserve Fund the amounts on deposit therein (which shall include
any payments received under the related Cap Contract) and distribute such
amounts to the Class II-A-1 Certificates in respect of any Net WAC Rate
Carryover Amounts due to the Class II-A-1 Certificates as set forth in Section
4.1(a)(v) and (b)(iv).
(f) For federal and state income tax purposes, the
Seller will be deemed to be the owner of each Reserve Fund. Upon the termination
of the Trust Fund, or the payment in full of the Certificates, all amounts
remaining on deposit in the related Reserve Fund will be released by the Trust
Fund and distributed to the Seller or its designees. The Reserve Funds will be
part of the Trust Fund but not part of any REMIC and any payments to the Holders
of the Class I-A-1, Class I-A-3, Class I-A-5 and Class II-A-1 Certificates of
Net WAC Rate Carryover Amounts will not be payments with respect to a "regular
interest" in a REMIC within the meaning of Code Section 860(G)(a)(1).
(g) The Seller hereby agrees that the Securities
Administrator will deposit into the related Reserve Fund the amounts described
above on each Distribution Date. The Seller further agrees that its agreement to
such action by the Securities Administrator is given for good and valuable
consideration, the receipt and sufficiency of which is acknowledged by such
acceptance.
(h) The Securities Administrator shall direct any
depository institution maintaining the Reserve Fund to invest the funds in such
account in one or more Eligible Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, (i) no later than the Business
Day immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the Securities Administrator or an Affiliate manages or advises such investment,
and (ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the Securities Administrator or
an Affiliate manages or advises such investment. All income and gain earned upon
such investment shall be deposited into the related Reserve Fund. In no event
shall the Securities Administrator be liable for any investments made pursuant
to this clause (h).
(i) For federal tax return and information reporting,
the right of the Holders of the Class I-A-1, Class I-A-3, Class I-A-5 and Class
II-A-1 Certificates to receive payments from the related Reserve Fund in respect
of any Net WAC Rate Carryover Amount shall be assigned a value of $400,000,
$160,000, $199,000 and $95,000, respectively.
Section 3.26 PREPAYMENT PENALTY VERIFICATION.
On or prior to each Servicer Remittance Date, each Interim
Servicer and Servicer shall, to the extent provided in the respective Servicing
Agreement, provide in an electronic format acceptable to the Master Servicer the
data necessary for the Master Servicer to perform its verification duties agreed
to by the Master Servicer and the Depositor. The Master Servicer or a third
party reasonably acceptable to the Master Servicer and the Depositor (the
"Verification Agent") will perform such verification duties and will use its
best efforts to issue its findings in a report (the "Verification Report")
delivered to the Master Servicer and the Depositor within ten (10) Business Days
following the related Distribution Date; provided, however, that if the
Verification Agent is unable to issue the Verification Report within ten (10)
Business Days following the Distribution Date, the Verification Agent may issue
and deliver to the Master Servicer and the Depositor the Verification Report
upon the completion of its verification duties. The Master Servicer shall
forward the Verification Report to the respective Interim Servicer or Servicer
and shall notify such Interim Servicer or Servicer if the Master Servicer has
determined that such Interim Servicer or Servicer did not deliver the
appropriate Prepayment Charges to the Master Servicer in accordance with the
respective Servicing Agreement. Such written notification from the Master
Servicer shall include the loan number, prepayment penalty code and prepayment
penalty amount as calculated by the Master Servicer or the Verification Agent,
as applicable, of each Loan for which there is a discrepancy. If the respective
Interim Servicer or Servicer agrees with the verified amounts, such Interim
Servicer or Servicer shall adjust the immediately succeeding Remittance Report
and the amount remitted to the Master Servicer with respect to prepayments
accordingly. If the respective Interim Servicer or Servicer disagrees with the
determination of the Master Servicer, such Interim Servicer or Servicer shall,
within five (5) Business Days of its receipt of the Verification Report, notify
the Master Servicer of such disagreement and provide the Master Servicer with
detailed information to support such Interim Servicer's or Servicer's position.
The respective Interim Servicer or Servicer and the Master Servicer shall
cooperate to resolve any discrepancy on or prior to the immediately succeeding
Servicer Remittance Date, and such Interim Servicer or such Servicer will
indicate the effect of such resolution on the related Remittance Report and
shall adjust the amount remitted with respect to prepayments on such Servicer
Remittance Date accordingly.
During such time as the respective Interim Servicer or
Servicer and the Master Servicer are resolving discrepancies with respect to the
Prepayment Charges, no payments in respect of any disputed Prepayment Charges
will be remitted to the Distribution Account and the Master Servicer shall not
be obligated to remit such payments, unless otherwise required pursuant to
Section 7.1 hereof. In connection with such duties, the Master Servicer shall be
able to rely solely on the information provided to it by the respective Interim
Servicer or Servicer in accordance with this Section. The Master Servicer shall
not be responsible for verifying the accuracy of any of the information provided
to it by the respective Interim Servicer or Servicer.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES;
STATEMENTS AND REPORTS
Section 4.1 DISTRIBUTIONS TO CERTIFICATEHOLDERS.
On each Distribution Date, the Securities Administrator, to
the extent on deposit therein and based solely upon the Remittance Report for
such Distribution Date, shall withdraw from the Distribution Account the Group I
Available Distribution Amount and Group II Available Distribution Amount for
such Distribution Date and distribute to each related Certificateholder, by wire
transfer in immediately available funds for the account of the Certificateholder
or by any other means of payment acceptable to each Certificateholder of record
on the immediately preceding Record Date (other than as provided in Section 9.1
respecting the final distribution) as specified by each such Certificateholder
and at the address of such Holder appearing in the Certificate Register, from
the amount so withdrawn and to the extent of the Group I Available Distribution
Amount and Group II Available Distribution Amount, as applicable, such
Certificateholder's Percentage Interest of the following amounts and in
following order and priority:
(a) On each Distribution Date prior to the Credit
Support Depletion Date, the Securities Administrator will distribute the Group I
Available Distribution Amount and the Group II Available Distribution Amount in
the following order and priority:
(i) On each Distribution Date, the Group I
Available Distribution Amount will be distributed as follows:
(1) FIRST, concurrently to the
Group I Senior Certificates, the related Interest Distribution
Amount on a pro rata basis based on the related Interest
Distribution Amount with respect to each such Class;
(2) SECOND, to the Class I-A-7
Certificates from the Group I Available Distribution Amount
remaining after payments pursuant to clause (i)(1) above, an
amount up to the Class I-A-7 Lockout Principal Amount until
the Certificate Principal Balance of the Class I-A-7
Certificates has been reduced to zero;
(3) THIRD, concurrently to the
Class I-A-1, Class I-A-3 and Class I-A-5 Certificates on a pro
rata basis based on the Certificate Principal Balance of each
such Class, from the Group I Available Distribution Amount
remaining after payments pursuant to clauses (i)(1) and (i)(2)
above, the related Senior Principal Distribution Amount until
the Certificate Principal Balance of each such Class has been
reduced to zero; and
(4) FOURTH, to the Class I-A-7
Certificates from the Group I Available Distribution Amount
remaining after payments pursuant to clauses (i)(1), (i)(2)
and (i)(3) above, the related Senior Principal Distribution
Amount until the Certificate Principal Balance of the Class
I-A-7 Certificates has been reduced to zero.
(ii) On each Distribution Date, the Group II
Available Distribution Amount will be distributed as follows:
(1) FIRST, concurrently to the
Group II Senior Certificates, the related Interest
Distribution Amount on a pro rata basis based on the related
Interest Distribution Amount with respect to each such Class;
(2) SECOND, to the Class R
Certificates from the Group II Available Distribution Amount
remaining after payments pursuant to clause (ii)(1) above, the
related Senior Principal Distribution Amount until the
Certificate Principal Balance of the Class R Certificates has
been reduced to zero;
(3) THIRD, to the Class II-A-3
Certificates, from the Group II Available Distribution Amount
remaining after payments pursuant to clauses (ii)(1) and
(ii)(2) above, an amount up to the Class II-A-3 Lockout
Principal Amount until the Certificate Principal Balance of
the Class II-A-3 Certificates has been reduced to zero;
(4) FOURTH, to the Class II-A-1
Certificates from the Group II Available Distribution Amount
remaining after payments pursuant to clauses (ii)(1), (ii)(2)
and (ii)(3) above, the related Senior Principal Distribution
Amount until the Certificate Principal Balance of the Class
II-A-1 Certificates has been reduced to zero; and
(5) FIFTH, to the Class II-A-3
Certificates from the Group II Available Distribution Amount
remaining after payments pursuant to clauses (ii)(1), (ii)(2),
(ii)(3) and (ii)(4) above, the related Senior Principal
Distribution Amount until the Certificate Principal Balance of
the Class II-A-3 Certificates has been reduced to zero.
(iii) From the Group I Available
Distribution Amount and Group II Available Distribution Amount
remaining after payments pursuant to clauses (i) and (ii)
above, (i) first, the Senior Interest Shortfall Amount for
each Class of Group I Senior Certificates and Group II Senior
Certificates for such Distribution Date, if any, pro rata
according to the amount of interest to which each such Class
would otherwise be entitled, (ii) second, an amount equal to
the Collateral Deficiency Amount, if any, to the Group I
Senior Certificates (other than the Class I-A-2, Class I-A-4
and Class I-A-6 Certificates) and Group II Senior Certificates
(other than the Class II-A-2 Certificates), pro rata between
the Group I Senior Certificates (other than the Class I-A-2,
Class I-A-4 and Class I-A-6 Certificates) and the Group II
Senior Certificates (other than the Class II-A-2 Certificates)
based on the related Collateral Deficiency Amount and within
each group of Certificates, on a pro rata basis based on the
Certificate Principal Balance of each such Class, as a payment
of principal and (iii) if such Distribution Date is a Cross
Payment Trigger Date, the Principal Prepayment Amount
distributable to the Group I Senior Certificates (other than
the Class I-A-2, Class I-A-4 and Class I-A-6 Certificates) or
Group II Senior Certificates (other than the Class II-A-2
Certificates) that have been paid in full, will be paid as
principal to the Group I Senior Certificates or Group II
Senior Certificates that have not been paid in full in
accordance with the priorities set forth in clauses (a)(i) and
(a)(ii) above.
(iv) From the sum of the remaining Group I
Available Distribution Amount and Group II Available
Distribution Amount, after payments pursuant to clauses (i)
through (iii) above, to the Class M, Class B-1 and Class B-2
Certificates, sequentially, in that order, an amount equal to
their respective Interest Distribution Amounts for such
Distribution Date and their pro rata share, based on the
outstanding Certificate Principal Balance of each such Class,
of the Subordinate Principal Amount; provided, however, that
on any Distribution Date on which the Subordination Level for
any Class of Subordinate Certificates is less than the
Subordination Level as of the Closing Date, the portion of the
Subordinate Principal Prepayment Amount otherwise payable to
the Class or Classes of the Subordinate Certificates junior to
such Class will be distributed to the most senior Class of
Subordinate Certificates for which the Subordination Level is
less than such percentage as of the Closing Date, and to the
Class or Classes of Subordinate Certificates senior thereto,
pro rata based on the Certificate Principal Balance of each
such Class.
(v) From the remaining Group I Available
Distribution Amount, to the Class I-A-1 Reserve Fund, Class
I-A-3 Reserve Fund and Class I-A-5 Reserve Fund (from amounts
otherwise payable to the Class B-3, Class B-4 and Class B-5
Certificates) and then from the Class I-A-1 Reserve Fund,
Class I-A-3 Reserve Fund and Class I-A-5 Reserve Fund
(including any payments received under the related Cap
Contract), to the Class I-A-1, Class I-A-3 and Class I-A-5
Certificates in respect of any Net WAC Rate Carryover Amounts
due each such Class on a pro rata basis based on the
entitlement of each such Class as follows:
(1) from the Class I-A-1 Reserve Fund, as
follows: (A) FIRST, to the holders of the Class I-A-1
Certificates, any amounts received by the Securities
Administrator on account of the related Cap Contract for such
Distribution Date; and (B) SECOND, to the Class I-A-1
Certificates, any Net WAC Rate Carryover Amounts remaining
unpaid after distributions pursuant to clause (1)(A).
(2) from the Class I-A-3 Reserve Fund, as
follows: (A) FIRST, to the holders of the Class I-A-3
Certificates, any amounts received by the Securities
Administrator on account of the related Cap Contract for such
Distribution Date; and (B) SECOND, to the Class I-A-3
Certificates, any Net WAC Rate Carryover Amounts remaining
unpaid after distributions pursuant to clause (2)(A).
(3) from the Class I-A-5 Reserve Fund, as
follows: (A) FIRST, to the holders of the Class I-A-5
Certificates, any amounts received by the Securities
Administrator on account of the related Cap Contract for such
Distribution Date; and (B) SECOND, to the Class I-A-5
Certificates, any Net WAC Rate Carryover Amounts remaining
unpaid after distributions pursuant to clause (3)(A).
From the remaining Group II Available Distribution Amount, to the Class
II-A-1 Reserve Fund (from amounts otherwise payable to the Class B-3, Class B-4
and Class B-5 Certificates) and then from the Class II-A-1 Reserve Fund
(including any payments received under the related Cap Contract), to the Class
II-A-1 Certificates in respect of any Net WAC Rate Carryover Amounts due to the
Class II-A-1 Certificates as follows:
(1) FIRST, to the holders of the Class II-A-1 Certificates, any
amounts received by the Securities Administrator on account of
the related Cap Contract for such Distribution Date; and
(2) SECOND, to the Class II-A-1 Certificates, any Net WAC Rate
Carryover Amounts remaining unpaid after distributions
pursuant to the foregoing clause.
(vi) From the sum of the remaining Group I
Available Distribution Amount and Group II Available
Distribution Amount, after payments pursuant to clauses (i)
through (v) above, to the Class B-3, Class B-4 and Class B-5
Certificates, sequentially, in that order, an amount equal to
(i) their respective Interest Distribution Amounts for such
Distribution Date, and (ii) their pro rata share, based on the
outstanding Certificate Principal Balance of each such Class,
of the Subordinate Principal Amount; provided, however, that
on any Distribution Date on which the Subordination Level for
any Class of Subordinate Certificates is less than the
Subordination Level as of the Closing Date, the portion of the
Subordinate Principal Prepayment Amount otherwise payable to
the Class or Classes of the Subordinate Certificates junior to
such Class will be distributed to the most senior Class of
Subordinate Certificates for which the Subordination Level is
less than such percentage as of the Closing Date, and to the
Class or Classes of Subordinate Certificates senior thereto,
pro rata based on the Certificate Principal Balance of each
such Class.
(vii) To the Group I Senior Certificates
(other than the Class I-A-2, Class I-A-4 and Class I-A-6
Certificates) and Group II Senior Certificates (other than the
Class II-A-2 Certificates), from the Group I Available
Distribution Amount and Group II Available Distribution
Amount, respectively, remaining after distributions pursuant
to clauses (i) through (vi) above, by Pro Rata Allocation, the
amount of any unreimbursed losses previously allocated to such
Classes of Certificates, and then to the Subordinate
Certificates, in the order of their seniority, the amount of
any unreimbursed losses previously allocated to such Classes
of Certificates.
(viii) To the Class R Certificates, the
remainder (which is expected to be zero), if any of the Group
I Available Distribution Amount and Group II Available
Distribution Amount remaining after distributions pursuant to
clauses (i) through (vii) above.
On each Distribution Date, the amount of any Prepayment
Charges received in connection with the Loans during the related Prepayment
Period will be paid to the Class II-A-2 Certificates.
(b) On each Distribution Date on or after the Credit
Support Depletion Date, to the extent of the Group I Available Distribution
Amount and Group II Available Distribution Amount on such Distribution Date,
distributions will be made to the Group I Senior Certificates and Group II
Senior Certificates in the following order of priority:
(i) FIRST, (a) concurrently to the Group I
Senior Certificates from the Group I Available Distribution
Amount, the related Interest Distribution Amount pro rata
based on the amount payable to each such Class, to the extent
of amounts available, and (b) to the Group II Senior
Certificates from the Group II Available Distribution Amount,
the related Interest Distribution Amount pro rata based on the
amount payable to each such Class, to the extent of amounts
available;
(ii) SECOND, (a) to the Group I Senior
Certificates (other than the Class I-A-2, Class I-A-4 and
Class I-A-6 Certificates) on a pro rata basis based on the
Certificate Principal Balance of each such Class, the Group I
Available Distribution Amount remaining after payments
pursuant to clause (i)(a) above, and (b) to the Group II
Senior Certificates (other than the Class II-A-2 Certificates)
on a pro rata basis based on the Certificate Principal Balance
of each such Class, the Group II Available Distribution Amount
remaining after payments pursuant to clause (i)(b) above, in
each case until the Certificate Principal Balance of each such
Class has been reduced to zero;
(iii) THIRD, from the Group I Available
Distribution Amount and Group II Available Distribution Amount
remaining after payments pursuant to clauses (i) and (ii)
above, to each Class of Certificates for which a Senior
Interest Shortfall Amount exists, the Senior Interest
Shortfall Amount for such Distribution Date, pro rata, based
on such Senior Interest Shortfall Amount;
(iv) FOURTH, (a) from the remaining Group I
Available Distribution Amount, on a pro rata basis based on
the entitlement of the Class I-A-1, Class I-A-3 and Class
I-A-5 Certificates, as follows: (i) to the Class I-A-1 Reserve
Fund and then from the Class I-A-1 Reserve Fund, to the Class
I-A-1 Certificates, the Net WAC Rate Carryover Amount payable
to such Class for such Distribution Date (after taking into
account all payments received by the Securities Administrator
from the related Cap Contract), (ii) to the Class I-A-3
Reserve Fund and then from the Class I-A-3 Reserve Fund, to
the Class I-A-3 Certificates, the Net WAC Rate Carryover
Amount payable to such Class for such Distribution Date (after
taking into account all payments received by the Securities
Administrator from the related Cap Contract), (iii) to the
Class I-A-5 Reserve Fund and then from the Class I-A-5 Reserve
Fund, to the Class I-A-5 Certificates, the Net WAC Rate
Carryover Amount payable to such Class for such Distribution
Date (after taking into account all payments received by the
Securities Administrator from the related Cap Contract); and
(b) from the remaining Group II Available Distribution Amount,
to the Class II-A-1 Reserve Fund and then from the Class
II-A-1 Reserve Fund, to the Class II-A-1 Certificates, the Net
WAC Rate Carryover Amount payable to such Class for such
Distribution Date (after taking into account all payments
received by the Securities Administrator from the related Cap
Contract);
(v) FIFTH, (a) from the Group I Available
Distribution Amount remaining after payments pursuant to
clauses (i) through (iv) above, to the Group I Senior
Certificates (other than the Class I-A-2, Class I-A-4 and
Class I-A-6 Certificates) on a pro rata basis based on the
outstanding Certificate Principal Balance of such Class, the
amount of any unreimbursed losses previously allocated to each
such Class and (b) from the Group II Available Distribution
Amount remaining after payments pursuant to clauses (i)
through (iv) above, to the Group II Senior Certificates (other
than the Class II-A-2 Certificates), on a pro rata basis based
on the outstanding Certificate Principal Balance of such
Class, the amount of any unreimbursed losses previously
allocated to each such Class; and
(vi) SIXTH, to the Class R Certificates, the
remainder, if any (which is expected to be zero), of the Group
I Available Distribution Amount and Group II Available
Distribution Amount remaining after distributions pursuant to
clauses (i) through (v) above.
On each Distribution Date, the amount of any Prepayment
Charges received in connection with the Loans during the related Prepayment
Period will be paid to the Class II-A-2 Certificates.
Section 4.2 ALLOCATION REALIZED LOSSES.
(a) Prior to each Distribution Date, the Master
Servicer, based solely on the information provided by the related Servicer,
shall determine the amount of Realized Losses, if any, with respect to each
Group I Loan and Group II Loan.
(b) Realized Losses, other than Excess Losses, shall
be allocated as follows: (i) for losses allocable to principal, (a) first,
sequentially, to the Class B-5, Class B-4, Class B-3, Class B-2, Class B-1 and
Class M Certificates, in that order, until the Certificate Principal Balance of
each such Class been reduced to zero, and (b) second, (1) with respect to
Realized Losses related to the Group I Loans, concurrently to the Class I-A-1,
Class I-A-3, Class I-A-5 and Class I-A-7 Certificates, on a pro rata basis based
on the Certificate Principal Balance of each such Class, in each case until the
Certificate Principal Balance of such Class has been reduced to zero, and (b)
with respect to Realized Losses related to the Group II Loans, concurrently to
the Class II-A-1, Class II-A-3 and Class R Certificates, on a pro rata basis
based on the Certificate Principal Balance of each such Class, in each case
until the Certificate Principal Balance of each such Class has been reduced to
zero; and (ii) for losses allocable to interest, (a) first, sequentially, to the
Class B-5, Class B-4, Class B-3, Class B-2, Class B-1 and Class M Certificates,
in that order, in reduction of accrued but unpaid interest thereon until the
amount of interest accrued on such Certificate on such Distribution Date has
been reduced to zero, and then in reduction of the Certificate Principal Balance
of such Certificate until the Certificate Principal Balance thereof has been
reduced to zero, and (b) second, to the Senior Certificates relating to the Loan
Group for which such Realized Losses were incurred, by Pro Rata Allocation,
until the aggregate of the Certificate Principal Balances thereof have been
reduced to zero. In addition, to the extent the related Servicer receives
Subsequent Recoveries with respect to any defaulted Loan, the amount of the
Realized Loss with respect to that defaulted Loan will be reduced to the extent
such Subsequent Recoveries are applied to reduce the Certificate Principal
Balance of any Class of Certificates on any Distribution Date.
(c) Excess Losses with respect to the Group I Loans
and Group II Loans will be allocated to the outstanding Class or Classes of
Senior Certificates (other than the Class I-A-2, Class I-A-4, Class I-A-6 and
Class II-A-2 Certificates) of the related Loan Group and to the Subordinate
Certificates by Pro Rata Allocation.
(d) On each Distribution Date, if the aggregate
Certificate Principal Balance of the Group I Senior Certificates (other than the
Class I-A-2, Class I-A-4 and Class I-A-6 Certificates), Group II Senior
Certificates (other than the Class II-A-2 Certificates) and Subordinate
Certificates exceeds the aggregate Principal Balance of the Group I Loans and
Group II Loans (after giving effect to distributions of principal and the
allocation and reimbursement of all losses on the related certificates on such
Distribution Date), such excess will be deemed a principal loss and will be
allocated to the Subordinate Certificates in reverse order of seniority until
the Certificate Principal Balance of each such Class has been reduced to zero.
If the Certificate Principal Balance of each Subordinate Certificate has been
reduced to zero and the aggregate Certificate Principal Balance of the Group I
Senior Certificates (other than the Class I-A-2, Class I-A-4 and Class I-A-6
Certificates) and Group II Senior Certificates (other than the Class II-A-2
Certificates) exceeds the aggregate Principal Balance of the Group I Loans and
Group II Loans (after giving effect to distributions of principal and the
allocation and reimbursement of all losses on the Certificates on such
Distribution Date), such excess will be deemed a principal loss and, if
attributable to the Group I Loans, will be allocated to the Group I Senior
Certificates (other than the Class I-A-2, Class I-A-4 and Class I-A-6
Certificates) by Pro Rata Allocation until the Certificate Principal Balance of
each such Class has been reduced to zero, and if attributable to the Group II
Loans, will be allocated to the Group II Senior Certificates (other than the
Class II-A-2 Certificates) by Pro Rata Allocation, until Certificate Principal
Balance of each such Class has been reduced to zero.
(e) Realized Losses from the Group I Loans and Group
II Loans shall be applied after all distributions have been made on each
Distribution Date, first, to REMIC I Regular Interest LT-1SUB and REMIC I
Regular Interest LT-2SUB, as applicable, so that the Uncertificated Balance of
each such REMIC I Regular Interest is equal to 0.1% of the excess of (x) the
aggregate Scheduled Principal Balance of the Loans in the related Loan Group
over (y) the current Certificate Principal Balance of the Group I Senior
Certificates (other than the Class I-A-2, Class I-A-4 and Class I-A-6
Certificates) or Group II Senior Certificates (other than the Class II-A-2
Certificates), as applicable (except that if any such excess is a larger number
than in the preceding distribution period, the least amount of Realized Losses
shall be applied to such REMIC I Regular Interests such that the REMIC I
Subordinated Balance Ratio is maintained); and second, to REMIC I Regular
Interest LT-1GRP and REMIC I Regular Interest LT-2GRP, as applicable, so that
the Undertificated Principal Balance of each such REMIC I Regular Interest
remains equal to 0.1% of the aggregate Scheduled Principal Balance of the Group
I Loans and Group II Loans, respectively, and third, any remaining Realized
Losses from each Loan Group shall be allocated to REMIC I Regular Interest
LT-ZZZ.
Realized Losses from the Group I Loans and the Group II Loans
shall be applied after all distributions have been made on each Distribution
Date, first, to REMIC II Regular Interest LT-ISUB and REMIC II Regular Interest
LT-IISUB, respectively, and second, any remaining Realized Losses from each Loan
Group shall be allocated to (i) REMIC II Regular Interest LT-IA1, REMIC II
Regular Interest LT-IA3, REMIC II Regular Interest LT-IA5 and REMIC II Regular
Interest LT-IA7, pro rata and (ii) REMIC II Regular Interest LT-IIA1 and REMIC
II Regular Interest LT-IIA3, pro rata respectively.
Section 4.3 REDUCTION OF CERTIFICATE PRINCIPAL BALANCES ON THE
CERTIFICATES.
(a) All reductions in the Certificate Principal
Balance of a Certificate effected by distributions of principal or allocations
of Realized Losses with respect to the related Loans made on any Distribution
Date shall be binding upon all Holders of such Certificate and of any
Certificate issued upon the registration of transfer or exchange therefor or in
lieu thereof, whether or not such distribution is noted on such Certificate. Any
Subsequent Recoveries collected by the Interim Servicers or the Servicers will
be distributed as part of the Available Distribution Amount in accordance with
the priorities described under Section 4.1. Holders of such Certificates will
not be entitled to any payment in respect of current interest on the amount of
such increases for any Interest Accrual Period preceding the Distribution Date
on which such increase occurs.
(b) The final distribution of principal of each
Certificate (and the final distribution with respect to the Residual
Certificates upon termination of the Trust Fund) shall be payable in the manner
provided above only upon presentation and surrender thereof on or after the
Distribution Date therefor at the office or agency of the Securities
Administrator specified in the notice delivered pursuant to Section 4.6 or
Section 9.1.
(c) Whenever, on the basis of Curtailments, Payoffs
and Monthly Payments on the Loans and related Insurance Proceeds and Liquidation
Proceeds received and expected to be received during the applicable Prepayment
Period, the Securities Administrator believes that the entire remaining unpaid
aggregate Certificate Principal Balance of any Class of Certificates shall
become distributable on the next Distribution Date, the Securities Administrator
shall, no later than the Determination Date of the month of such Distribution
Date, mail or cause to be mailed to each Person in whose name a Certificate to
be so retired is registered at the close of business on the Record Date, to the
Underwriter and to each Rating Agency a notice to the effect that:
(i) it is expected that funds sufficient to
make such final distribution shall be available in the
Distribution Account on such Distribution Date, and
(ii) if such funds are available, (A) such
final distribution shall be payable on such Distribution Date,
but only upon presentation and surrender of such Certificate
at the office or agency of the Securities Administrator
maintained for such purpose (the address of which shall be set
forth in such notice), and (B) no interest shall accrue on
such Certificate after such Distribution Date.
Section 4.4 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement, the
Trustee and the Securities Administrator shall comply with all federal
withholding requirements respecting payments to Certificateholders of interest
or original issue discount that the Trustee and the Securities Administrator
reasonably believe are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Securities Administrator does withhold any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholders.
Section 4.5 DISTRIBUTIONS ON THE UNCERTIFICATED REMIC REGULAR
INTERESTS
Distributions of principal from the Loans shall be deemed to
be made to the REMIC I Regular Interests, in each case from the related Loan
Group, first, to REMIC I Regular Interest LT-1SUB and REMIC I Regular Interest
LT-2SUB, as applicable, so that the Uncertificated Principal Balance of each
such REMIC I Regular Interest is equal to 0.1% of the excess of (x) the
aggregate Scheduled Principal Balance of the Loans in the related Loan Group
over (y) the current Certificate Principal Balance of the Group I Senior
Certificates or Group II Senior Certificates related to such Loan Group (except
that if any such excess is a larger number than in the preceding distribution
period, the least amount of principal shall be distributed to such REMIC I
Regular Interests such that the REMIC I Subordinated Balance Ratio is
maintained); second, to REMIC I Regular Interest LT-1GRP and REMIC I Regular
Interest LT-2GRP, as applicable, so that the Uncertificated Principal Balance of
each such REMIC I Regular Interest remains equal to 0.1% of the aggregate
Scheduled Principal Balance of the Group I Loans and Group II Loans,
respectively; and third, any remaining principal in each Loan Group to REMIC I
Regular Interest LT-ZZZ. Interest shall be payable to each REMIC I Regular
Interest at the related Uncertificated REMIC I Pass-Through Rate on each such
REMIC I Regular Interest's Uncertificated Principal Balance.
Distributions of principal from the Loans shall be deemed to
be made to the REMIC II Regular Interests, in each case from the related Loan
Group, first, to REMIC II Regular Interest LT-IA1, REMIC I Regular Interest
LT-IA3, REMIC I Regular Interest LT-IA5, REMIC I Regular Interest LT-IA7, REMIC
II Regular Interest LT-IIA1, REMIC II Regular Interest LT-IIA3 and REMIC II
Regular Interest LT-R, in the same manner and priority as such distributions are
made to the Class I-A-1, Class I-A-3, Class I-A-5, Class I-A-7, Class II-A-1,
Class II-A-3 and Class R Certificates, respectively, and second, any remaining
principal in each Loan Group to REMIC II Regular Interest LT-ISUB and REMIC II
Regular Interest LT-IISUB in the same manner and priority as such distributions
are made to the Subordinate Certificates. Interest shall be payable to each
REMIC II Regular Interest at the related Uncertificated REMIC II Pass-Through
Rate on each such REMIC II Regular Interest's Uncertificated Principal Balance.
Section 4.6 STATEMENTS TO CERTIFICATEHOLDERS.
On each Distribution Date, the Securities Administrator shall
provide or make available, upon request to each Holder of a Certificate and the
Credit Risk Manager, a statement (each, a "Remittance Report") as to the
distributions made to such Certificateholders on such Distribution Date setting
forth:
(i) the amount of the distribution made on
such Distribution Date to the Holders of the Certificates
allocable to principal;
(ii) the amount of the distribution made on
such Distribution Date to the Holders of the Certificates
allocable to interest;
(iii) the aggregate Servicing Fee received
by each Interim Servicer and each Servicer and the Master
Servicing Fee received by the Master Servicer during the
related Due Period;
(iv) the number and aggregate Principal
Balance of the Group I Loans and Group II Loans delinquent
one, two and three months or more;
(v) the (A) number and aggregate Principal
Balance of Group I Loans and Group II Loans with respect to
which foreclosure proceedings have been initiated, and (B) the
number and aggregate Principal Balance of Mortgaged Properties
acquired through foreclosure, deed in lieu of foreclosure or
other exercise of rights respecting the Trustee's security
interest in the Group I Loans and Group II Loans;
(vi) the aggregate Principal Balance of the
Group I Loans and Group II Loans as of the close of business
on the last day of the related Prepayment Period;
(vii) the amount of Special Hazard Coverage
available to the Group I Senior Certificates and Group II
Senior Certificates remaining as of the close of business on
the applicable Determination Date;
(viii) the amount of Bankruptcy Coverage
available to the Group I Senior Certificates and Group II
Senior Certificates remaining as of the close of business on
the applicable Determination Date;
(ix) the amount of Fraud Coverage available
to the Group I Senior Certificates and Group II Senior
Certificates remaining as of the close of business on the
applicable Determination Date;
(x) the amount of Realized Losses with
respect to the Group I Loans and Group II Loans allocable to
the Certificates on the related Distribution Date and the
cumulative amount of Realized Losses incurred and allocated to
the related Certificates since the Cut-Off Date;
(xi) the amount of interest accrued but not
paid to each Class of Certificates entitled to interest since
(a) the prior Distribution Date and (b) the Closing Date;
(xii) the amount of funds advanced by each
Interim Servicer, each Servicer and the Master Servicer for
such Distribution Date with respect to Group I Loans and Group
II Loans;
(xiii) the total amount of Payoffs and
Curtailments received during the related Prepayment Period
with respect to Group I Loans and Group II Loans and the
aggregate amount of any Prepayment Charges received in respect
thereof;
(xiv) with respect to any Group I Loan and
Group II Loan that became an REO Property during the preceding
calendar month, the loan number of such Loan, the Principal
Balance and the Scheduled Principal Balance of such Loan;
(xv) to the extent provided by the related
Interim Servicer or the related Servicer, the book value of
any REO Property as of the close of business on the last
Business Day of the calendar month preceding the Distribution
Date with respect to the Group I Loans and Group II Loans;
(xvi) the aggregate amount of Extraordinary
Trust Fund expenses withdrawn from the Distribution Account
for such Distribution Date;
(xvii) the aggregate Certificate Principal
Balance of each Class of Certificates, after giving effect to
the distributions and allocations of Realized Losses made on
such Distribution Date, separately identifying any reduction
thereof due to allocations of Realized Losses;
(xviii) the aggregate amount of any
Prepayment Interest Shortfalls for such Distribution Date on
the Group I Loans and Group II Loans, to the extent not
covered by payments by the Master Servicer pursuant to Section
3.20;
(xix) the aggregate amount of Relief Act
Interest Shortfalls for such Distribution Date with respect to
the Group I Loans and Group II Loans;
(xx) the respective Pass-Through Rates
applicable to each Class of Certificates as of such
Distribution Date;
(xxi) the Net WAC Rate Carryover Amount, if
any, for such Distribution Date;
(xxii) the Net WAC Rate Carryover Amount, if
any, outstanding after reimbursements therefor on such
Distribution Date;
(xxiii) the amount of any deposit to each
Reserve Fund contemplated by Section 3.25;
(xxiv) the balance of each Reserve Fund
prior to the deposit or withdrawal of any amounts on such
Distribution Date;
(xxv) the amount of any withdrawal from
related Reserve Fund pursuant to Section 4.1(a)(v) and
(b)(iv); and
(xxvi) the balance of each Reserve Fund
after all deposits and withdrawals on such Distribution Date.
The Securities Administrator shall make such statement (and,
at its option, any additional files containing the same information in an
alternative format) available each month to the Certificateholders, the Trustee
and the Rating Agencies via the Securities Administrator's internet website. The
Securities Administrator's internet website shall initially be located at
http:\\▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at ▇-▇▇▇-▇▇▇-▇▇▇▇.
Parties that are unable to use the above distribution option are entitled to
have a paper copy mailed to them via first class mail by calling the customer
service desk and indicating such. The Securities Administrator shall have the
right to change the way such statements are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and the
Securities Administrator shall provide timely and adequate notification to all
above parties regarding any such changes.
In the case of information furnished pursuant to subclause (i)
above, the amounts shall be expressed as a dollar amount per single Certificate
of the relevant Class.
Within a reasonable period of time after the end of each
calendar year, the Securities Administrator shall furnish to each Person who at
any time during the calendar year was a Holder of a Regular Interest Certificate
a statement containing the information set forth in subclause (i) above,
aggregated for such calendar year or applicable portion thereof during which
such person was a Certificateholder. Such obligation of the Securities
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time are
in force.
Within a reasonable period of time after the end of each
calendar year, the Securities Administrator shall furnish to each Person who at
any time during the calendar year was a Holder of a Class R Certificate a
statement setting forth the amount, if any, actually distributed with respect to
the Class R Certificates aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder.
The Securities Administrator shall, upon request, furnish to
each Certificateholder, during the term of this Agreement, such periodic,
special, or other reports or information, whether or not provided for herein, as
shall be reasonable with respect to the Certificateholder, as applicable, or
otherwise with respect to the purposes of this Agreement, all such reports or
information to be provided at the expense of the Certificateholder, in
accordance with such reasonable and explicit instructions and directions as the
Certificateholder may provide.
On each Distribution Date the Securities Administrator shall
provide Bloomberg Financial Markets, L.P. ("Bloomberg") CUSIP level factors for
each Class of Certificates as of such Distribution Date, using a format and
media mutually acceptable to the Securities Administrator and Bloomberg.
Section 4.7 ADVANCES.
If the Monthly Payment on a Loan or a portion thereof is
delinquent as of its Due Date, other than as a result of interest shortfalls due
to bankruptcy proceedings or application of the Relief Act, and the related
Servicer or Interim Servicer fails to make an advance of the delinquent amount
pursuant to the related Servicing Agreement, the Master Servicer shall deposit
in the Distribution Account, from its own funds or from amounts on deposit in
the Distribution Account that are held for future distribution, not later than
the Distribution Account Deposit Date immediately preceding the related
Distribution Date an amount equal to such delinquency, net of the Servicing Fee
and Master Servicing Fee for such Loan except to the extent the Master Servicer
determines any such advance to be nonrecoverable from Liquidation Proceeds,
Insurance Proceeds, or future payments on the Loan for which such Advance was
made. Any amounts held for future distribution and so used shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Distribution Account on or before any future
Distribution Account Deposit Date to the extent that the Group I Available
Distribution Amount or Group II Available Distribution Amount (determined
without regard to Advances to be made on the related Distribution Account
Deposit Date) shall be less than the total amount that would be distributed to
the related Classes of Certificateholders pursuant to Section 4.1 on such
Distribution Date if such amounts held for future distributions had not been so
used to make Advances. Subject to the foregoing, the Master Servicer shall
continue to make such Advances through the date that the related Servicer or
Interim Servicer, as applicable is required to do so under its Servicing
Agreement. In the event the Master Servicer elects not to make an Advance
because the Master Servicer deems such Advance nonrecoverable pursuant to this
Section 4.7 on the related Distribution Account Deposit Date, the Master
Servicer shall present an Officer's Certificate to the Trustee (i) stating that
the Master Servicer elects not to make an Advance in a stated amount and (ii)
detailing the reason it deems the advance to be nonrecoverable.
ARTICLE V
THE CERTIFICATES
Section 5.1 THE CERTIFICATES.
(a) The Certificates in the aggregate will represent
the entire beneficial ownership interest in the Loans and all other assets
included in REMIC I.
The Certificates will be substantially in the forms annexed
hereto as Exhibits A-1 through A-10. The Certificates of each Class will be
issuable in registered form only, in denominations of authorized Percentage
Interests as described in the definition thereof. Each Certificate will share
ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed and
authenticated by the Securities Administrator and delivered by the Trustee to
and upon the written order of the Depositor. The Certificates shall be executed
by manual or facsimile signature on behalf of the Trust by the Securities
Administrator by an authorized signatory. Certificates bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Securities Administrator shall bind the Trust, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
herein executed by the Securities Administrator by manual signature, and such
certificate of authentication shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
(b) The Certificates, other than the Class R
Certificates and Junior Subordinate Certificates, shall initially be issued as
one or more Certificates held by the Book-Entry Custodian or, if appointed to
hold such Certificates as provided below, the Depository and registered in the
name of the Depository or its nominee and, except as provided below,
registration of such Certificates may not be transferred by the Securities
Administrator except to another Depository that agrees to hold such Certificates
for the respective Certificate Owners with Ownership Interests therein. The
Certificate Owners shall hold their respective Ownership Interests in and to
such Certificates through the book-entry facilities of the Depository and,
except as provided below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. The Securities Administrator is hereby initially
appointed as the Book-Entry Custodian and hereby agrees to act as such in
accordance herewith and in accordance with the agreement that it has with the
Depository authorizing it to act as such. The Book-Entry Custodian may, and, if
it is no longer qualified to act as such, the Book-Entry Custodian shall,
appoint, by a written instrument delivered to the Depositor, the Servicers, the
Master Servicer and, if the Trustee is not the Book-Entry Custodian, the
Trustee, any other transfer agent (including the Depository or any successor
Depository) to act as Book-Entry Custodian under such conditions as the
predecessor Book-Entry Custodian and the Depository or any successor Depository
may prescribe, provided that the predecessor Book-Entry Custodian shall not be
relieved of any of its duties or responsibilities by reason of any such
appointment of other than the Depository. If the Securities Administrator
resigns or is removed in accordance with the terms hereof, the successor
Securities Administrator or, if it so elects, the Depository shall immediately
succeed to its predecessor's duties as Book-Entry Custodian. The Depositor shall
have the right to inspect, and to obtain copies of, any Certificates held as
Book-Entry Certificates by the Book-Entry Custodian.
(c) Any Junior Subordinate Certificate initially
offered and sold in offshore transactions in reliance on Regulation S shall be
issued in the form of a temporary global certificate in definitive, fully
registered form (each, a "Regulation S Temporary Global Certificate"), which
shall be deposited with the Securities Administrator or an agent of the
Securities Administrator as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository for the account of designated
agents holding on behalf of Euroclear or Clearstream. Beneficial interests in
each Regulation S Temporary Global Certificate may be held only through
Euroclear or Clearstream; provided, however, that such interests may be
exchanged for interests in a Definitive Certificate in accordance with the
requirements described in Section 5.02. After the expiration of the Release
Date, a beneficial interest in a Regulation S Temporary Global Certificate may
be exchanged for a beneficial interest in the related permanent global
certificate of the same Class (each, a "Regulation S Permanent Global
Certificate"), in accordance with the procedures set forth in Section 5.02. Each
Regulation S Permanent Global Certificate shall be deposited with the Securities
Administrator or an agent of the Securities Administrator as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository.
(d) The Junior Subordinate Certificates offered and
sold to Qualified Institutional Buyers ("QIBs") in reliance on Rule 144A under
the Securities Act ("Rule 144A") will be issued in the form of Definitive
Certificates.
(e) The Trustee, the Servicers, the Securities
Administrator, the Master Servicer and the Depositor may for all purposes
(including the making of payments due on the Book-Entry Certificates and Global
Certificates) deal with the Depository as the authorized representative of the
Certificate Owners with respect to the Book-Entry Certificates and Global
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates and Global Certificates shall be limited to those established by
law and agreements between such Certificate Owners and the Depository
Participants and brokerage firms representing such Certificate Owners. Multiple
requests and directions from, and votes of, the Depository as Holder of the
Book-Entry Certificates and Global Certificates with respect to any particular
matter shall not be deemed inconsistent if they are made with respect to
different Certificate Owners. The Securities Administrator may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i)(A) the Depositor advises the Securities Administrator
in writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and (B) the Depositor is unable to
locate a qualified successor, (ii) the Depositor at its option advises the
Securities Administrator in writing that it elects to terminate the book-entry
system through the Depository or (iii) after the occurrence of a Servicer Event
of Default, Certificate Owners representing in the aggregate not less than 51%
of the Ownership Interests of the Book-Entry Certificates advise the Securities
Administrator through the Depository, in writing, that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Securities Administrator shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to Certificate Owners
requesting the same. With respect to a Global Certificate, the related
Certificate Owner (other than a Holder of a Regulation S Temporary Global
Certificate) may request that its interest in a Global Certificate be exchanged
for a Definitive Certificate. Upon surrender to the Securities Administrator of
the Book-Entry Certificates by the Book-Entry Custodian or the Depository, as
applicable, or the Global Certificates by the Depository accompanied by
registration instructions from the Depository for registration of transfer, the
Securities Administrator shall cause the Definitive Certificates to be issued.
Such Definitive Certificates will be issued in minimum denominations of $10,000
except that any beneficial ownership that was represented by a Book-Entry
Certificate, or a Global Certificate, as applicable in an amount less than
$10,000 immediately prior to the issuance of a Definitive Certificate shall be
issued in a minimum denomination equal to the amount represented by such
Book-Entry Certificate or a Global Certificate, as applicable. None of the
Depositor, the Servicers, the Master Servicer, the Securities Administrator or
the Trustee shall be liable for any delay in the delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Securities Administrator on behalf of
the Trustee, to the extent applicable with respect to such Definitive
Certificates, and the Securities Administrator on behalf of the Trustee shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(f) Neither the Trustee nor the Securities
Administrator shall have any liability to the Trust Fund and shall be
indemnified by the Trust Fund for, any cost, liability or expense incurred by
them arising from a registration of a Certificate or transfer, pledge sale or
other disposition of a Certificate in reliance upon a certification, Officer's
Certificate, affidavit, ruling or Opinion of Counsel described in this Article
V.
Section 5.2 REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES.
(a) The Securities Administrator shall cause to be
kept at one of the offices or agencies to be appointed by the Securities
Administrator in accordance with the provisions of Section 8.11, a Certificate
Register for the Certificates in which, subject to such reasonable regulations
as it may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided.
(b) No transfer of any Junior Subordinate Certificate
shall be made unless that transfer is made pursuant to an effective registration
statement under the Securities Act, and effective registration or qualification
under applicable state securities laws, or is made in a transaction that does
not require such registration or qualification. In the event that such a
transfer of a Junior Subordinate Certificate is to be made without registration
or qualification (other than in connection with the initial transfer of any such
Certificate by the Depositor), the Securities Administrator shall require
receipt of: (i) if such transfer is purportedly being made in reliance upon Rule
144A under the Securities Act, written certifications from the Certificateholder
desiring to effect the transfer and from such Certificateholder's prospective
transferee, substantially in the form attached hereto as Exhibit B-1; (ii) if
such transfer is purportedly being made in reliance upon Rule 501(a) under the
Securities Act, written certifications from the Certificateholder desiring to
effect the transfer and from such Certificateholder's prospective transferee,
substantially in the form attached hereto as Exhibit B-2; (iii) if such transfer
is purportedly being made in reliance on Regulation S, a written certification
from the prospective transferee, substantially in the form attached hereto as
Exhibit B-3 and (iv) in all other cases, an Opinion of Counsel satisfactory to
the Securities Administrator that such transfer may be made without such
registration or qualification (which Opinion of Counsel shall not be an expense
of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the
Securities Administrator or the Servicers), together with copies of the written
certification(s) of the Certificateholder desiring to effect the transfer and/or
such Certificateholder's prospective transferee upon which such Opinion of
Counsel is based, if any. Neither of the Depositor nor the Securities
Administrator is obligated to register or qualify any such Certificates under
the Securities Act or any other securities laws or to take any action not
otherwise required under this Agreement to permit the transfer of such
Certificates without registration or qualification. Any Certificateholder
desiring to effect the transfer of any such Certificate shall, and does hereby
agree to, indemnify the Trustee, the Depositor, the Master Servicer, the
Securities Administrator and the Servicers against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
A holder of a beneficial interest in a Regulation S Temporary
Global Certificate must provide Euroclear or Clearstream, as the case may be,
with a certificate in the form of Annex A to Exhibit B-4 hereto certifying that
the beneficial owner of the interest in such Global Certificate is not a U.S.
Person (as defined in Regulation S), and Euroclear or Clearstream, as the case
may be, must provide to the Trustee and Securities Administrator a certificate
in the form of Exhibit B-4 hereto prior to (i) the payment of interest or
principal with respect to such holder's beneficial interest in the Regulation S
Temporary Global Certificate and (ii) any exchange of such beneficial interest
for a beneficial interest in a Regulation S Permanent Global Certificate.
(c) No transfer of a Residual Certificate or any
interest therein shall be made to any Plan subject to ERISA or Section 4975 of
the Code, any Person acting, directly or indirectly, on behalf of any such Plan
or any Person acquiring such Certificates with "Plan Assets" of a Plan within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss.
2510.3-101 ("Plan Assets") unless the Securities Administrator is provided with
an Opinion of Counsel on which the Depositor, the Master Servicer, the
Securities Administrator, the Trustee and the Servicers may rely, which
establishes to the satisfaction of the Securities Administrator that the
purchase of such Certificates is permissible under applicable law, will not
constitute or result in any prohibited transaction under ERISA or Section 4975
of the Code and will not subject the Depositor, the Servicers, the Trustee, the
Master Servicer, the Securities Administrator or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the
Servicers, the Trustee, the Master Servicer, the Securities Administrator, the
Trust Fund. An Opinion of Counsel will not be required in connection with the
initial transfer of any such Certificate by the Depositor to an affiliate of the
Depositor (in which case, the Depositor or any affiliate thereof shall have
deemed to have represented that such affiliate is not a Plan or a Person
investing Plan Assets) and the Securities Administrator shall be entitled to
conclusively rely upon a representation (which, upon the request of the
Securities Administrator, shall be a written representation) from the Depositor
of the status of such transferee as an affiliate of the Depositor.
Each Transferee of a Class M or Class B Certificate will be
deemed to have represented by virtue of its purchase or holding of such
Certificate (or interest therein) that either (a) such Transferee is not a Plan
or purchasing such Certificate with Plan Assets, (b) for Certificates other than
Class B-3, Class B-4 or Class B-5 Certificates, it has acquired and is holding
such Certificate in reliance on Prohibited Transaction Exemption ("PTE") 94-84
or FAN 97-03E, as amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE
2000-58, 65 Fed. Reg. 67765 (November 13, 2000) and PTE 2002-41, 67 Fed. Reg.
54487 (August 22, 2002) (the "Exemption"), and that it understands that there
are certain conditions to the availability of the Exemption including that such
Certificate must be rated, at the time of purchase, not lower than "BBB-" (or
its equivalent) by a Rating Agency or (c) the following conditions are
satisfied: (i) such Transferee is an insurance company, (ii) the source of funds
used to purchase or hold such Certificate (or interest therein) is an "insurance
company general account" (as defined in PTCE 95-60, and (iii) the conditions set
forth in Sections I and III of PTCE 95-60 have been satisfied.
If any Certificate or any interest therein is acquired or held
in violation of the conditions described in this Section 5.2(c), the next
preceding permitted beneficial owner will be treated as the beneficial owner of
that Certificate, retroactive to the date of transfer to the purported
beneficial owner. Any purported beneficial owner whose acquisition or holding of
any certificate or interest therein was effected in violation of the conditions
described in this Section 5.2(c) shall indemnify and hold harmless the
Depositor, the Trustee, the Servicers, the Master Servicer, the Securities
Administrator and the Trust Fund from and against any and all liabilities,
claims, costs or expenses incurred by those parties as a result of that
acquisition or holding.
(d) Each Transferee of a Class R Certificate shall be
deemed by the acceptance or acquisition of the related Ownership Interest to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection with
any such sale, and the rights of each Transferee of a Class R Certificate are
expressly subject to the following provisions:
(i) Each such Transferee shall be a
Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status
as a Permitted Transferee.
(ii) No Person shall acquire an Ownership
Interest in a Class R Certificate unless such Ownership
Interest is a PRO RATA undivided interest.
(iii) In connection with any proposed
transfer of any Ownership Interest in a Class R Certificate,
the Securities Administrator shall as a condition to
registration of the transfer, require delivery to it, in form
and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of
Exhibit C hereto from the proposed Transferee to the
effect that such Transferee is a Permitted Transferee
and that it is not acquiring its Ownership Interest
in the Class R Certificate that is the subject of the
proposed transfer as a nominee, trustee or agent for
any Person who is not a Permitted Transferee; and
(B) a covenant of the proposed
Transferee to the effect that the proposed Transferee
agrees to be bound by and to abide by the transfer
restrictions applicable to the Class R Certificates.
(iv) Any attempted or purported transfer of
any Ownership Interest in a Class R Certificate in violation
of the provisions of this Section shall be absolutely null and
void and shall vest no rights in the purported Transferee. If
any purported Transferee shall, in violation of the provisions
of this Section, become a Holder of a Class R Certificate,
then the prior Holder of such Class R Certificate that is a
Permitted Transferee shall, upon discovery that the
registration of transfer of such Class R Certificate was not
in fact permitted by this Section, be restored to all rights
as Holder thereof retroactive to the date of registration of
transfer of such Class R Certificate. The Securities
Administrator shall be under no liability to any Person for
any registration of transfer of a Class R Certificate that is
in fact not permitted by this Section or for making any
distributions due on such Class R Certificate to the Holder
thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the
Securities Administrator received the documents specified in
clause (iii). The Securities Administrator shall be entitled
to recover from any Holder of a Class R Certificate that was
in fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Class R
Certificate. Any such distributions so recovered by the
Securities Administrator shall be distributed and delivered by
the Securities Administrator to the prior Holder of such Class
R Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted
Transferee acquires any Ownership Interest in a Class R
Certificate in violation of the restrictions in this Section,
then the Securities Administrator shall have the right but not
the obligation, without notice to the Holder of such Class R
Certificate or any other Person having an Ownership Interest
therein, to notify the Depositor to arrange for the sale of
such Class R Certificate. The proceeds of such sale, net of
commissions (which may include commissions payable to the
Depositor or its affiliates in connection with such sale),
expenses and taxes due, if any, will be remitted by the
Securities Administrator to the previous Holder of such Class
R Certificate that is a Permitted Transferee, except that in
the event that the Securities Administrator determines that
the Holder of such Class R Certificate may be liable for any
amount due under this Section or any other provisions of this
Agreement, the Securities Administrator may withhold a
corresponding amount from such remittance as security for such
claim. The terms and conditions of any sale under this clause
(v) shall be determined in the sole discretion of the
Securities Administrator and it shall not be liable to any
Person having an Ownership Interest in a Class R Certificate
as a result of its exercise of such discretion.
(vi) If any Person other than a Permitted
Transferee acquires any Ownership Interest in a Class R
Certificate in violation of the restrictions in this Section,
then the Securities Administrator upon receipt of reasonable
compensation will provide to the Internal Revenue Service, and
to the persons specified in Sections 860E(e)(3) and (6) of the
Code, information needed to compute the tax imposed under
Section 860E(e)(5) of the Code on transfers of Class R
interests to Disqualified Organizations.
The foregoing provisions of this Section shall cease to apply
to transfers occurring on or after the date on which there shall have been
delivered to the Securities Administrator, in form and substance satisfactory to
the Securities Administrator, (i) written notification from each Rating Agency
that the removal of the restrictions on transfer set forth in this Section will
not cause such Rating Agency to downgrade its rating of the Certificates and
(ii) an Opinion of Counsel to the effect that such removal will not cause any
REMIC created hereunder to fail to qualify as a REMIC. The Holder of the Class R
Certificate issued hereunder, while not a Disqualified Organization, is the Tax
Matters Person.
(e) Subject to the preceding subsections, upon
surrender for registration of transfer of any Certificate at any office or
agency of the Securities Administrator maintained for such purpose pursuant to
Section 8.11, the Securities Administrator shall execute, authenticate and
deliver, in the name of the designated Transferee or Transferees, one or more
new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any
Certificate may be exchanged for other Certificates of the same Class with
Authorized Denominations and a like aggregate Percentage Interest, upon
surrender of such Certificate to be exchanged at any office or agency of the
Securities Administrator maintained for such purpose pursuant to Section 8.11.
Whenever any Certificates are so surrendered for exchange, the Securities
Administrator shall execute, authenticate and deliver, the Certificates which
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator) be duly endorsed by, or be accompanied
by a written instrument of transfer in the form satisfactory to the Securities
Administrator duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(g) No service charge to the Certificateholders shall
be made for any transfer or exchange of Certificates, but the Securities
Administrator may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(h) All Certificates surrendered for transfer and
exchange shall be canceled and destroyed by the Securities Administrator in
accordance with its customary procedures.
Section 5.3 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the
Securities Administrator, or the Securities Administrator receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate and of the
ownership thereof, and (ii) there is delivered to Securities Administrator such
security or indemnity as may be required by it to save it harmless, then, in the
absence of actual knowledge by the Securities Administrator that such
Certificate has been acquired by a protected purchaser, the Securities
Administrator, shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like denomination and Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Securities
Administrator may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Securities Administrator)
connected therewith. Any replacement Certificate issued pursuant to this Section
shall constitute complete and indefeasible evidence of ownership in the
applicable REMIC created hereunder, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 5.4 PERSONS DEEMED OWNERS.
The Depositor, the Servicers, the Trustee, the Master
Servicer, the Securities Administrator and any agent of any of them may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.1
and for all other purposes whatsoever, and none of the Depositor, the Servicers,
the Trustee, the Master Servicer, the Securities Administrator or any agent of
any of them shall be affected by notice to the contrary.
Section 5.5 CERTAIN AVAILABLE INFORMATION.
On or prior to the date of the first sale of any Junior
Subordinate Certificate to an Independent third party, the Depositor shall
provide to the Securities Administrator ten copies of any private placement
memorandum or other disclosure document used by the Depositor in connection with
the offer and sale of such Certificate. In addition, if any such private
placement memorandum or disclosure document is revised, amended or supplemented
at any time following the delivery thereof to the Securities Administrator, the
Depositor promptly shall inform the Securities Administrator of such event and
shall deliver to the Securities Administrator ten copies of the private
placement memorandum or disclosure document, as revised, amended or
supplemented. The Securities Administrator shall maintain at its office as set
forth in Section 11.5 hereof and shall make available free of charge during
normal business hours for review by any Holder of a Certificate or any Person
identified to the Securities Administrator as a prospective transferee of a
Certificate, originals or copies of the following items: (i) in the case of a
Holder or prospective transferee of a Junior Subordinate Certificate, the
private placement memorandum or other disclosure document relating to such Class
of Certificates, in the form most recently provided to the Securities
Administrator; and (ii) in all cases, (A) this Agreement and any amendments
hereof entered into pursuant to Section 10.1, (B) all monthly statements
required to be delivered to Certificateholders of the Junior Subordinate
Certificates pursuant to Section 4.6 since the Closing Date, and all other
notices, reports, statements and written communications delivered to the
Certificateholders of the relevant Class pursuant to this Agreement since the
Closing Date and (C) any copies of all Officers' Certificates of the Servicers
since the Closing Date delivered to the Master Servicer to evidence such
Person's determination that any Monthly Advance or Servicing Advance was, or if
made, would be a Nonrecoverable Monthly Advance or Nonrecoverable Servicing
Advance. Copies and mailing of any and all of the foregoing items will be
available from the Securities Administrator upon request at the expense of the
Person requesting the same.
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER AND THE CREDIT RISK MANAGER
Section 6.1 LIABILITY OF THE DEPOSITOR AND THE MASTER
SERVICER.
The Depositor and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement upon them in their respective capacities as Depositor and
Master Servicer and undertaken hereunder by the Depositor and the Master
Servicer herein.
Section 6.2 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE
MASTER SERVICER.
Subject to the following paragraph, the Depositor shall keep
in full effect its existence, rights and franchises as a corporation under the
laws of the jurisdiction of its incorporation. Subject to the following
paragraph, the Master Servicer shall keep in full effect its existence, rights
and franchises as a corporation under the laws of the jurisdiction of its
formation. The Depositor and the Master Servicer each shall obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Loans and to
perform its respective duties under this Agreement.
The Depositor or the Master Servicer may be merged or
consolidated with or into any Person, or transfer all or substantially all of
its assets to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the Rating Agencies' ratings of the
Certificates in effect immediately prior to such merger or consolidation will
not be qualified, reduced or withdrawn as a result thereof (as evidenced by a
letter to such effect from the Rating Agencies).
Section 6.3 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE
MASTER SERVICER, THE INTERIM SERVICERS, THE SERVICERS, THE SECURITIES
ADMINISTRATOR AND OTHERS.
None of the Depositor, the Master Servicer, the Securities
Administrator, the Interim Servicers, the Servicers or any of the directors,
officers, employees or agents of the Depositor, the Master Servicer, the
Securities Administrator or the Servicers shall be under any liability to the
Trust Fund or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement or the
Servicing Agreements, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer, the Securities
Administrator, the Servicers, the Interim Servicers or any such person against
any breach of warranties, representations or covenants made herein or in the
Servicing Agreements, or against any specific liability imposed on the Master
Servicer, the Securities Administrator, the Interim Servicers or the Servicers
pursuant hereto or pursuant to the Servicing Agreements, or against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder or under the Servicing Agreements.
The Depositor, the Master Servicer, the Securities Administrator, the Servicers,
the Interim Servicers and any director, officer, employee or agent of the
Depositor, the Master Servicer, the Securities Administrator, the Servicers or
the Interim Servicers may rely in good faith on any document of any kind which,
PRIMA FACIE, is properly executed and submitted by any Person respecting any
matters arising hereunder or under the Servicing Agreements. The Depositor, the
Master Servicer, the Servicers, the Securities Administrator, the Custodian and
any director, officer, employee or agent of the Depositor, the Master Servicer,
the Servicers, the Interim Servicers, the Custodian or the Securities
Administrator shall be indemnified and held harmless by the Trust Fund against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement, the Certificates, any Servicing Agreement or the Cap
Contracts, or any loss, liability or expense incurred by any of such Persons
other than by reason of such Person's willful misfeasance, bad faith or gross
negligence in the performance of its duties hereunder or by reason of reckless
disregard of its obligations and duties hereunder. None of the Depositor, the
Master Servicer, the Securities Administrator, the Custodian, any Servicer or
any Interim Servicer shall be under any obligation to appear in, prosecute or
defend any legal action unless such action is related to its respective duties
under this Agreement, the Custodial Agreement, the applicable Servicing
Agreement or the Cap Contracts and, in its opinion, does not involve it in any
expense or liability; provided, however, that each of the Depositor, the Master
Servicer, the Custodian and the Securities Administrator may in its discretion
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom (except any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder) shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer, the
Custodian, the Servicers, the Interim Servicers and the Securities Administrator
shall be entitled to be reimbursed therefor from the related Distribution
Account as and to the extent provided in Article III, any such right of
reimbursement being prior to the rights of the Certificateholders to receive any
amount in the related Distribution Account.
Section 6.4 LIMITATION ON RESIGNATION OF THE MASTER SERVICER.
The Master Servicer shall not resign from the obligations and
duties hereby imposed on it except upon determination that its duties hereunder
are no longer permissible under applicable law. Any such determination pursuant
to the preceding sentence permitting the resignation of the Master Servicer
shall be evidenced by an Opinion of Counsel to such effect obtained at the
expense of the Master Servicer and delivered to the Trustee and the Rating
Agencies. No resignation of the Master Servicer shall become effective until the
Trustee or a successor Master Servicer shall have assumed the Master Servicer's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.
Section 6.5 ASSIGNMENT OF MASTER SERVICING.
The Master Servicer may sell and assign its rights and
delegate its duties and obligations in its entirety as Master Servicer under
this Agreement; provided, however, that: (i) the purchaser or transferee
accepting such assignment and delegation (a) shall be a Person which shall be
qualified to service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b) shall
have a net worth of not less than $15,000,000 (unless otherwise approved by each
Rating Agency pursuant to clause (ii) below); (c) shall be reasonably
satisfactory to the Trustee (as evidenced in a writing signed by the Trustee);
and (d) shall execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by it as master servicer
under this Agreement, any custodial agreement from and after the effective date
of such agreement; (ii) each Rating Agency shall be given prior written notice
of the identity of the proposed successor to the Master Servicer and each Rating
Agency's rating of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or withdrawn
as a result of such assignment, sale and delegation, as evidenced by a letter to
such effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning and selling the master servicing shall deliver to the
Trustee an officer's certificate and an Opinion of Independent counsel, each
stating that all conditions precedent to such action under this Agreement have
been completed and such action is permitted by and complies with the terms of
this Agreement. No such assignment or delegation shall affect any liability of
the Master Servicer arising prior to the effective date thereof.
Section 6.6 RIGHTS OF THE DEPOSITOR IN RESPECT OF THE MASTER
SERVICER.
The Master Servicer shall afford the Depositor and the
Trustee, upon reasonable notice, during normal business hours, access to all
records maintained by the Master Servicer in respect of the Master Servicer's
rights and obligations hereunder and access to officers of the Master Servicer
responsible for such obligations. Upon request, the Master Servicer shall
furnish to the Depositor and the Trustee the most recent financial statements of
its parent and such other information relating to the Master Servicer's capacity
to perform its obligations under this Agreement as it possesses. To the extent
such information is not otherwise available to the public, the Depositor and the
Trustee shall not disseminate any information obtained pursuant to the preceding
two sentences without the Master Servicer's written consent, except as required
pursuant to this Agreement or to the extent that it is appropriate to do so (i)
in working with legal counsel, auditors, taxing authorities or other
governmental agencies or (ii) pursuant to any law, rule, regulation, order,
judgment, writ, injunction or decree of any court or governmental authority
having jurisdiction over the Depositor, the Trustee or the Trust Fund, and in
any case, the Depositor or the Trustee, as the case may be, shall use its best
efforts to assure the confidentiality of any such disseminated non-public
information. The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer under this Agreement and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer under this Agreement or exercise the rights of the Master Servicer
under this Agreement; provided that the Master Servicer shall not be relieved of
any of its obligations under this Agreement by virtue of such performance by the
Depositor or its designee. The Depositor shall not have any responsibility or
liability for any action or failure to act by the Master Servicer and is not
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
Section 6.7 DUTIES OF THE CREDIT RISK MANAGER.
For and on behalf of the Depositor, pursuant to the Credit
Risk Management Agreements the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Loans, and as to the
collection of any Prepayment Charges with respect to the Loans. Such reports and
recommendations will be based upon information provided to the Credit Risk
Manager pursuant to the related Credit Risk Management Agreement, and the Credit
Risk Manager shall look solely to the related Servicer and/or Master Servicer
for all information and data (including loss and delinquency information and
data) relating to the servicing of the related Loans. Upon any termination of
the Credit Risk Manager or the appointment of a successor Credit Risk Manager,
the Depositor shall give written notice thereof to the Servicers, the Master
Servicer, the Trustee and each Rating Agency. Notwithstanding the foregoing, the
termination of the Credit Risk Manager pursuant to this Section shall not become
effective until the appointment of a successor Credit Risk Manager.
Section 6.8 LIMITATION UPON LIABILITY OF THE CREDIT RISK
MANAGER.
Neither the Credit Risk Manager, nor any of its directors,
officers, employees, or agents shall be under any liability to the Trustee, the
Certificateholders, or the Depositor for any action taken or for refraining from
the taking of any action made in good faith pursuant to this Agreement, in
reliance upon information provided by a Servicer under a Credit Risk Management
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Credit Risk Manager or any such person against liability
that would otherwise be imposed by reason of willful malfeasance or bad faith in
its performance of its duties. The Credit Risk Manager and any director,
officer, employee, or agent of the Credit Risk Manager may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder, and may rely in good faith upon
the accuracy of information furnished by a Servicer pursuant to a Credit Risk
Management Agreement in the performance of its duties thereunder and hereunder.
Section 6.9 REMOVAL OF THE CREDIT RISK MANAGER.
The Credit Risk Manager may be removed as Credit Risk Manager
by Certificateholders evidencing, in aggregate, not less than 66 2/3% of the
aggregate Percentage Interests of all Classes of Certificates, in the exercise
of its or their sole discretion. The Certificateholders shall provide written
notice of the Credit Risk Manager's removal to the Trustee. Upon receipt of such
notice, the Trustee shall provide written notice to the Credit Risk Manager of
its removal, which shall be effective upon receipt of such notice by the Credit
Risk Manager.
ARTICLE VII
DEFAULT
Section 7.1 MASTER SERVICER EVENTS OF DEFAULT.
"Master Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) [Reserved];
(ii) any failure on the part of the Master
Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, or the breach by
the Master Servicer of any representation and warranty
contained in Section 2.5, which continues unremedied for a
period of 30 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Depositor or the
Trustee or to the Master Servicer, the Depositor and the
Trustee by the Holders of the related Certificates evidencing,
in aggregate, not less than 25% of the aggregate Certificate
Principal Balance of the Certificates; or
(iii) a decree or order of a court or agency
or supervisory authority having jurisdiction in the premises
in an involuntary case under any present or future federal or
state bankruptcy, insolvency or similar law or the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceeding, or for the winding-up or liquidation of
its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 90 days; or
(iv) the Master Servicer shall consent to
the appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(v) the Master Servicer shall admit in
writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(vi) any failure of the Master Servicer to
make any Advance on any Distribution Account Deposit Date
required to be made from its own funds pursuant to Section 4.7
which continues unremedied until 3:00 p.m. New York time on
the Business Day immediately following the Distribution
Account Deposit Date.
If a Master Servicer Event of Default described in clauses
(ii) through (v) of this Section shall occur, then, and in each and every such
case, so long as such Master Servicer Event of Default shall not have been
remedied, the Depositor or the Trustee may, and at the written direction of the
Holders of Certificates evidencing, in aggregate, not less than 51% of the
aggregate Certificate Principal Balance of the Certificates, the Trustee shall,
by notice in writing to the Master Servicer (and to the Depositor if given by
the Trustee or to the Trustee if given by the Depositor) with a copy to each
Rating Agency, terminate all of the rights and obligations of the Master
Servicer (and the Securities Administrator if the Master Servicer and the
Securities Administrator are the same entity) in its capacity as Master Servicer
(and in its capacity as Securities Administrator if the Master Servicer and the
Securities Administrator are the same entity) under this Agreement, to the
extent permitted by law, and in and to the Loans and the proceeds thereof.
Except as otherwise provided in Section 7.4, if a Master Servicer Event of
Default described in clause (vi) hereof shall occur, the Trustee shall, by
notice in writing to the Master Servicer and the Depositor, terminate all of the
rights and obligations of the Master Servicer (and the Securities Administrator
if the Master Servicer and the Securities Administrator are the same entity) in
its capacity as Master Servicer under this Agreement (and in its capacity as
Securities Administrator if the Master Servicer and the Securities Administrator
are the same entity) and in and to the Loans and the proceeds thereof. On or
after the receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer (and, if applicable, the Securities
Administrator) under this Agreement, whether with respect to the Certificates
(other than as a Holder of any Certificate) or the Loans or otherwise, shall
pass to and be vested in the Trustee pursuant to and under this Section, and,
without limitation, the Trustee is hereby authorized and empowered, as
attorney-in-fact or otherwise, to execute and deliver, on behalf of and at the
expense of the Master Servicer, (and, if applicable, the Securities
Administrator) any and all documents and other instruments and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Loans and related documents, or otherwise. The
Master Servicer (and, if applicable, the Securities Administrator) agrees
promptly (and in any event no later than ten Business Days subsequent to such
notice) to provide the Trustee with all documents and records requested by it to
enable it to assume the Master Servicer's (and, if applicable, the Securities
Administrator's) functions under this Agreement, and to cooperate with the
Trustee in effecting the termination of the Master Servicer's (and, if
applicable, the Securities Administrator's) responsibilities and rights under
this Agreement (provided, however, that the Master Servicer shall continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the date of such termination, whether in respect of Advances or
otherwise, and shall continue to be entitled to the benefits of Section 6.3,
notwithstanding any such termination, with respect to events occurring prior to
such termination). For purposes of this Section 7.1, the Trustee shall not be
deemed to have knowledge of a Master Servicer Event of Default unless a
Responsible Officer of the Trustee assigned to and working in the Trustee's
Corporate Trust Office has actual knowledge thereof or unless written notice of
any event which is in fact such a Master Servicer Event of Default is received
by the Trustee and such notice references the Certificates, the Trust or this
Agreement. The Trustee shall promptly notify the Rating Agencies of the
occurrence of a Master Servicer Event of Default of which it has knowledge as
provided above.
Section 7.2 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
On and after the time the Master Servicer receives a notice of
termination, the Trustee shall be the successor in all respects to the Master
Servicer (and, if applicable, the Securities Administrator) in its capacity as
Master Servicer (and, if applicable, the Securities Administrator) under this
Agreement and the transactions set forth or provided for herein, and all the
responsibilities, duties and liabilities relating thereto and arising thereafter
shall be assumed by the Trustee (except for any representations or warranties of
the Master Servicer under this Agreement, the responsibilities, duties and
liabilities contained in Section 2.3 and the obligation to deposit amounts in
respect of losses pursuant to Section 3.23(c)) by the terms and provisions
hereof including, without limitation, the Master Servicer's obligations to make
Advances no later than each Distribution Date pursuant to Section 4.7; provided,
however, that if the Trustee is prohibited by law or regulation from obligating
itself to make advances regarding delinquent mortgage loans, then the Trustee
shall not be obligated to make Advances pursuant to Section 4.7; and provided
further, that any failure to perform such duties or responsibilities caused by
the Master Servicer's failure to provide information required by Section 7.1
shall not be considered a default by the Trustee as successor to the Master
Servicer hereunder. As compensation therefor, the Trustee shall be entitled to
the Master Servicing Fee and all funds relating to the Loans, investment
earnings on the Distribution Account and all other remuneration to which the
Master Servicer would have been entitled if it had continued to act hereunder.
Notwithstanding the above and subject to the immediately following paragraph,
the Trustee may, if it shall be unwilling to so act, or shall, if it is unable
to so act or if it is prohibited by law from making advances regarding
delinquent mortgage loans or if the Holders of Certificates evidencing, in
aggregate, not less than 51% of the Certificate Principal Balance of the
Certificates so request in writing promptly appoint or petition a court of
competent jurisdiction to appoint, an established mortgage loan servicing
institution acceptable to each Rating Agency and having a net worth of not less
than $15,000,000, as the successor to the Master Servicer under this Agreement
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer under this Agreement.
No appointment of a successor to the Master Servicer (and, if
applicable, the Securities Administrator) under this Agreement shall be
effective until the assumption by the successor of all of the Master Servicer's
(and, if applicable, the Securities Administrator's) responsibilities, duties
and liabilities hereunder. In connection with such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the Master Servicer (and, if applicable, the Securities Administrator)
as such hereunder. The Depositor, the Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. Pending appointment of a successor to the Master Servicer (and,
if applicable, the Securities Administrator) under this Agreement, the Trustee
shall act in such capacity as hereinabove provided. The transition costs and
expenses incurred by the Trustee in connection with the replacement of the
Master Servicer (and, if applicable, the Securities Administrator) shall be
reimbursed out of the Trust.
Section 7.3 NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any termination of the Master Servicer
pursuant to Section 7.1 or any appointment of a successor to the Master Servicer
pursuant to Section 7.2, the Trustee shall give prompt written notice thereof to
the Certificateholders at their respective addresses appearing in the
Certificate Register.
(b) Not later than the later of 60 days after the
occurrence of any event, which constitutes or which, with notice or lapse of
time or both, would constitute a Master Servicer Event of Default or five days
after a Responsible Officer of the Trustee becomes aware of the occurrence of
such an event, the Trustee shall transmit by mail to all Holders of Certificates
notice of each such occurrence, unless such default or Master Servicer Event of
Default shall have been cured or waived.
Section 7.4 WAIVER OF MASTER SERVICER EVENTS OF DEFAULT.
The Holders evidencing, in aggregate, not less than 66-2/3% of
the aggregate Percentage Interests of all Certificates affected by any default
or Master Servicer Event of Default hereunder may waive such default or Master
Servicer Event of Default; PROVIDED, HOWEVER, that a default or Master Servicer
Event of Default under clause (vi) of Section 7.1 may be waived only by all of
the Holders of the related Regular Interest Certificates. Upon any such waiver
of a default or Master Servicer Event of Default, such default or Master
Servicer Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other default or Master Servicer Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 8.1 DUTIES OF TRUSTEE AND SECURITIES ADMINISTRATOR.
The Trustee, prior to the occurrence of a Master Servicer
Event of Default and after the curing or waiver of all Master Servicer Events of
Default which may have occurred, and the Securities Administrator each undertake
to perform such duties and only such duties as are specifically set forth in
this Agreement as duties of the Trustee and the Securities Administrator,
respectively. During the continuance of a Master Servicer Event of Default, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Any permissive right of the Trustee enumerated in
this Agreement shall not be construed as a duty.
Each of the Trustee and the Securities Administrator, upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to it, which are specifically
required to be furnished pursuant to any provision of this Agreement, shall
examine them to determine whether they conform on their face to the requirements
of this Agreement. If any such instrument is found not to conform on its face to
the requirements of this Agreement, the Trustee or the Securities Administrator,
as the case may be, shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to its
satisfaction, the Securities Administrator shall provide notice to the Trustee
thereof and the Trustee shall provide notice to the Certificateholders.
No provision of this Agreement shall be construed to relieve
the Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own misconduct; PROVIDED,
HOWEVER, that:
(i) Prior to the occurrence of a Master
Servicer Event of Default, and after the curing or waiver of
all such Master Servicer Events of Default which may have
occurred with respect to the Trustee and at all times with
respect to the Securities Administrator, the duties and
obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this
Agreement, neither the Trustee nor the Securities
Administrator shall be liable except for the performance of
such duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee or the Securities
Administrator and, in the absence of bad faith on the part of
the Trustee or the Securities Administrator, respectively, the
Trustee or the Securities Administrator, respectively, may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee or the
Securities Administrator, respectively, that conform to the
requirements of this Agreement;
(ii) Neither the Trustee nor the Securities
Administrator shall be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of
the Trustee or an officer or officers of the Securities
Administrator, respectively, unless it shall be proved that
the Trustee or the Securities Administrator, respectively, was
negligent in ascertaining the pertinent facts; and
(iii) Neither the Trustee nor the Securities
Administrator shall be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Certificates
evidencing, in aggregate, not less than 25% (or such other
percentage set forth in this Agreement) of the aggregate
Certificate Principal Balance of the Certificates, relating to
the time, method and place of conducting any proceeding for
any remedy available to the Trustee or the Securities
Administrator or exercising any trust or power conferred upon
the Trustee or the Securities Administrator under this
Agreement.
Section 8.2 CERTAIN MATTERS AFFECTING TRUSTEE AND SECURITIES
ADMINISTRATOR.
(a) Except as otherwise provided in Section 8.1:
(i) The Trustee and the Securities
Administrator may request and rely upon and shall be protected
in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) The Trustee and the Securities
Administrator may consult with counsel of its selection and
any advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of
Counsel;
(iii) Neither the Trustee nor the Securities
Administrator shall be under any obligation to exercise any of
the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of
the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered
to the Trustee or the Securities Administrator, as the case
may be, reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the
occurrence of a Master Servicer Event of Default (which has
not been cured or waived), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct
of such person's own affairs;
(iv) Neither the Trustee nor the Securities
Administrator shall be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of a Master
Servicer Event of Default hereunder and after the curing or
waiver of all Master Servicer Events of Default which may have
occurred with respect to the Trustee and at all times with
respect to the Securities Administrator, neither the Trustee
nor the Securities Administrator shall be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so
by the Holders of Certificates evidencing, in aggregate, not
less than 25% of the Trust Fund; PROVIDED, HOWEVER, that if
the payment within a reasonable time to the Trustee or the
Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the
Securities Administrator, as applicable, not reasonably
assured to the Trustee or the Securities Administrator by such
Certificateholders, the Trustee or the Securities
Administrator, as applicable, may require reasonable indemnity
satisfactory to it against such expense, or liability from
such Certificateholders as a condition to taking any such
action;
(vi) The Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(vii) The Securities Administrator shall not
be liable for any loss resulting from the investment of funds
held in the Distribution Account at the direction of the
Master Servicer pursuant to Section 3.23(c);
(viii) Neither the Trustee nor the
Securities Administrator shall be liable for any action taken,
suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(ix) The Trustee shall not be deemed to have
notice of any default or Master Servicer Event of Default
unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice
references the Certificates and this Agreement; and
(x) The rights, privileges, protections,
immunities and benefits given to the Trustee, including,
without limitation, its right to be indemnified, are extended
to, and shall be enforceable by, each agent, custodian and
other Person employed to act hereunder.
(b) The Trustee is hereby directed by the Depositor
to execute the Cap Contracts on behalf of the Trust Fund in the form presented
to it by the Depositor and shall have no responsibility for the contents of the
Cap Contracts, including, without limitation, the representations and warranties
contained therein. Any funds payable by the Trustee under the Cap Contracts at
closing shall be paid by the Depositor. Notwithstanding anything to the contrary
contained herein or in the Cap Contracts, the Trustee shall not be required to
make any payments to the counterparty under the Cap Contracts.
(c) All rights of action under this Agreement or
under any of the Certificates, enforceable by the Trustee, may be enforced by it
without the possession of any of the Certificates, or the production thereof at
the trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the provisions of
this Agreement.
Section 8.3 TRUSTEE AND SECURITIES ADMINISTRATOR NOT LIABLE
FOR CERTIFICATES OR LOANS.
The recitals contained herein and in the Certificates (other
than the signature of the Securities Administrator, the authentication of the
Securities Administrator on the Certificates, the acknowledgments of the Trustee
contained in Article II and the representations and warranties of the Trustee in
Section 8.12) shall be taken as the statements of the Depositor and neither the
Trustee nor the Securities Administrator assumes any responsibility for their
correctness. Neither the Trustee nor the Securities Administrator makes any
representations or warranties as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 8.12), the Cap
Contracts or of the Certificates (other than the signature of the Securities
Administrator and authentication of the Securities Administrator on the
Certificates) or of any Loan or related document. The Trustee shall not be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor or the Master Servicer in respect
of the Loans or deposited in or withdrawn from the Distribution Account.
Section 8.4 TRUSTEE, MASTER SERVICER AND SECURITIES
ADMINISTRATOR MAY OWN CERTIFICATES.
Each of the Trustee, the Master Servicer and the Securities
Administrator in its individual capacity or any other capacity may become the
owner or pledgee of Certificates and may transact business with other interested
parties and their Affiliates with the same rights it would have if it were not
Trustee, Master Servicer or the Securities Administrator.
Section 8.5 FEES AND EXPENSES OF TRUSTEE AND SECURITIES
ADMINISTRATOR.
The fees of the Trustee and the Securities Administrator
hereunder and of ▇▇▇▇▇ Fargo under the Custodial Agreement shall be paid in
accordance with a side letter agreement with the Master Servicer and at the sole
expense of the Master Servicer. In addition, the Trustee, the Securities
Administrator, the Custodian and any director, officer, employee or agent of the
Trustee, the Securities Administrator and the Custodian shall be indemnified by
the Trust and held harmless against any loss, liability or expense (including
reasonable attorney's fees and expenses) incurred by the Trustee or the
Securities Administrator in connection with any default administration to be
performed by the Trustee or the Securities Administrator pursuant to this
Agreement or other agreements related hereto and any claim or legal action or
any pending or threatened claim or legal action arising out of or in connection
with the acceptance or administration of its respective obligations and duties
under this Agreement or the Cap Contracts, including other agreements related
hereto, other than any loss, liability or expense (i) for which the Trustee is
indemnified by the Master Servicer, (ii) that constitutes a specific liability
of the Trustee or the Securities Administrator, respectively, pursuant to
Section 10.1(g) or (iii) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or gross negligence by the Trustee, or Securities
Administrator in the performance of its duties hereunder or by reason of
reckless disregard of its obligations and duties hereunder. The Master Servicer
agrees to indemnify the Trustee, from, and hold the Trustee harmless against,
any loss, liability or expense (including reasonable attorney's fees and
expenses) incurred by the Trustee by reason of the Master Servicer's willful
misfeasance, bad faith or gross negligence in the performance of its duties
under this Agreement or by reason of the Master Servicer's reckless disregard of
its obligations and duties under this Agreement. Such indemnity shall survive
the termination or discharge of this Agreement and the resignation or removal of
the Trustee. Any payment hereunder made by the Master Servicer to the Trustee
shall be from the Master Servicer's own funds, without reimbursement from REMIC
I therefor.
Section 8.6 ELIGIBILITY REQUIREMENTS FOR TRUSTEE AND
SECURITIES ADMINISTRATOR.
The Trustee and the Securities Administrator shall at all
times be a corporation or an association (other than the Depositor, the Seller,
the Master Servicer or any Affiliate of the foregoing) organized and doing
business under the laws of any state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 (or a member of a bank holding company whose
capital and surplus is at least $50,000,000) and subject to supervision or
examination by federal or state authority. If such corporation or association
publishes reports of conditions at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of conditions so published. In case at any time the
Trustee or the Securities Administrator, as applicable, shall cease to be
eligible in accordance with the provisions of this Section, the Trustee or the
Securities Administrator, as applicable, shall resign immediately in the manner
and with the effect specified in Section 8.7.
Additionally, the Securities Administrator (i) may not be an
originator, Master Servicer, Servicer, the Depositor or an affiliate of the
Depositor unless the Securities Administrator is in an institutional trust
department, (ii) must be authorized to exercise corporate trust powers under the
laws of its jurisdiction of organization, and (iii) must be rated at least
"A/F1" by Fitch, if Fitch is a Rating Agency, or the equivalent rating by S&P
(or such rating acceptable to Fitch pursuant to a rating confirmation). If no
successor securities administrator shall have been appointed and shall have
accepted appointment within 60 days after ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator, ceases to be the securities administrator pursuant to this
Section 8.06, then the Trustee shall perform the duties of the Securities
Administrator pursuant to this Agreement. The Trustee shall notify the Rating
Agencies of any change of Securities Administrator. Notwithstanding the above,
the Trustee may, if it shall be unwilling to so act, or shall, if it is unable
to so act, promptly appoint or petition a court of competent jurisdiction to
appoint, a Person that satisfies the eligibility criteria set forth herein as
the Trustee under this Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Trustee under this Agreement.
▇▇▇▇▇ Fargo Bank, N.A. or one of its Affiliates shall act as Securities
Administrator for so long as it is Master Servicer under this Agreement.
Section 8.7 RESIGNATION AND REMOVAL OF TRUSTEE AND SECURITIES
ADMINISTRATOR.
The Trustee and the Securities Administrator may at any time
resign (including, in the case of the Securities Administrator, in connection
with the resignation or termination of the Master Servicer) and be discharged
from the trust hereby created by giving written notice thereof to the Depositor,
to the Master Servicer, to the Securities Administrator (or the Trustee, if the
Securities Administrator resigns) and to the Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee or successor securities administrator by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee or
Securities Administrator, as applicable, and to the successor trustee or
successor securities administrator, as applicable. A copy of such instrument
shall be delivered to the Certificateholders, the Trustee, the Securities
Administrator and the Master Servicer by the Depositor. If no successor trustee
or successor securities administrator shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator, as the case may
be, may, at the expense of the Trust Fund, petition any court of competent
jurisdiction for the appointment of a successor trustee, successor securities
administrator, Trustee or Securities Administrator, as applicable.
If at any time the Trustee or the Securities Administrator
shall cease to be eligible in accordance with the provisions of Section 8.6 and
shall fail to resign after written request therefor by the Depositor, or if at
any time the Trustee or the Securities Administrator shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or the Securities Administrator or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or the Securities
Administrator or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor may remove the Trustee or the
Securities Administrator, as applicable and appoint a successor trustee or
successor securities administrator, as applicable, by written instrument, in
duplicate, which instrument shall be delivered to the Trustee or the Securities
Administrator so removed and to the successor trustee or successor securities
administrator. A copy of such instrument shall be delivered to the
Certificateholders, the Trustee, the Securities Administrator and the Master
Servicer by the Depositor.
The Holders of Certificates evidencing, in aggregate, not less
than 51% of the Certificate Principal Balance of the Certificates, may at any
time remove the Trustee or the Securities Administrator and appoint a successor
trustee or successor securities administrator by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Depositor, one complete set to the Trustee or the Securities Administrator so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Certificateholders, the Trustee (in the
case of the removal of the Securities Administrator), the Securities
Administrator (in the case of the removal of the Trustee) and the Master
Servicer by the Depositor. All costs and expenses incurred by the Trustee in
connection with its removal without cause hereunder shall be reimbursed to it by
the Trust Fund.
Any resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor trustee or successor securities
administrator pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee or successor
securities administrator, as applicable, as provided in Section 8.8.
Notwithstanding anything to the contrary contained herein, the
Master Servicer and the Securities Administrator shall at all times be the same
Person.
Section 8.8 SUCCESSOR TRUSTEE OR SECURITIES ADMINISTRATOR.
Any successor trustee or successor securities administrator
appointed as provided in Section 8.7 shall execute, acknowledge and deliver to
the Depositor and its predecessor trustee or predecessor securities
administrator an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee or predecessor securities
administrator shall become effective and such successor trustee or successor
securities administrator without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee or
securities administrator herein. The predecessor trustee or predecessor
securities administrator shall deliver to the successor trustee or successor
securities administrator all Loan Documents and related documents and statements
to the extent held by it hereunder, as well as all moneys, held by it hereunder,
and the Depositor and the predecessor trustee or predecessor securities
administrator shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee or successor securities administrator all
such rights, powers, duties and obligations.
No successor trustee or successor securities administrator
shall accept appointment as provided in this Section unless at the time of such
acceptance such successor trustee or successor securities administrator shall be
eligible under the provisions of Section 8.6 and the appointment of such
successor trustee or successor securities administrator shall not result in a
downgrading of any Class of Certificates by any Rating Agency, as evidenced by a
letter from each Rating Agency.
Upon acceptance of appointment by a successor trustee or
successor securities administrator as provided in this Section, the Depositor
shall mail notice of the succession of such trustee hereunder to all Holders of
the related Certificates at their addresses as shown in the Certificate
Register. If the Depositor fails to mail such notice within 10 days after
acceptance of appointment by the successor trustee or successor securities
administrator, the successor trustee or successor securities administrator shall
cause such notice to be mailed at the expense of the Depositor.
Section 8.9 MERGER OR CONSOLIDATION OF TRUSTEE OR SECURITIES
ADMINISTRATOR.
Any corporation or association into which the Trustee or the
Securities Administrator may be merged or converted or with which it may be
consolidated or any corporation or association resulting from any merger,
conversion or consolidation to which the Trustee or the Securities Administrator
shall be a party, or any corporation or association succeeding to the business
of the Trustee or the Securities Administrator shall be the successor of the
Trustee or the Securities Administrator hereunder, provided such corporation or
association shall be eligible under the provisions of Section 8.6, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of REMIC I or property securing the same may at the time be located, the
Trustee shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of REMIC I, and to vest in such Person or Persons, in such
capacity, and for the benefit of the Holders of the Certificates, such title to
REMIC I, or any part thereof, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Trustee
may consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.6 hereunder and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.8 hereof.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed by the Trustee (whether as
Trustee hereunder or as successor to a defaulting Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to REMIC I or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trust conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee, or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee or co-trustee.
Section 8.11 APPOINTMENT OF OFFICE OR AGENCY.
The Securities Administrator shall appoint an office or agency
in the City of Minneapolis located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, where the Certificates may be surrendered for
registration of transfer or exchange, and presented for final distribution and
where notices and demands to or upon the Securities Administrator in respect of
the Certificates and this Agreement may be served.
Section 8.12 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.
The Trustee hereby represents and warrants to the Master
Servicer, the Securities Administrator and the Depositor as applicable, as of
the Closing Date, that:
(i) It is a national banking association
duly organized, validly existing and in good standing under
the laws of the United States of America.
(ii) The execution and delivery of this
Agreement by it, and the performance and compliance with the
terms of this Agreement by it, will not violate its articles
of incorporation or bylaws or constitute a default (or an
event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party
or which is applicable to it or any of its assets.
(iii) It has the full power and authority to
enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due
authorization, execution and delivery by the other parties
hereto, constitutes a valid, legal and binding obligation of
it, enforceable against it in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) It is not in violation of, and its
execution and delivery of this Agreement and its performance
and compliance with the terms of this Agreement will not
constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority,
which violation, in its good faith and reasonable judgment, is
likely to affect materially and adversely either the ability
of it to perform its obligations under this Agreement or its
financial condition.
(vi) No litigation is pending or, to the
best of its knowledge, threatened against it, which would
prohibit it from entering into this Agreement or, in its good
faith reasonable judgment, is likely to materially and
adversely affect either the ability of it to perform its
obligations under this Agreement or its financial condition.
ARTICLE IX
TERMINATION
Section 9.1 TERMINATION UPON PURCHASE OR LIQUIDATION OF THE
LOANS.
(a) Subject to Section 9.2, the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Securities Administrator and the Trustee (other than the
obligations of the Master Servicer to the Securities Administrator and the
Trustee pursuant to Section 8.5 and of the Master Servicer to pay Compensating
Interest to the Securities Administrator and the Securities Administrator to
make payments in respect of REMIC I Regular Interests or the Classes of
Certificates as hereinafter set forth) shall terminate upon payment to the
Certificateholders and the deposit of all amounts held by or on behalf of the
Trustee and required hereunder to be so paid or deposited on the Distribution
Date coinciding with or following the earlier to occur of (i) the purchase by
the Master Servicer (as defined below) of all Loans and each REO Property
remaining in REMIC I and (ii) the final payment or other liquidation (or any
advance with respect thereto) of the last Loan or REO Property remaining in
REMIC I; PROVIDED, HOWEVER, that in no event shall the trust created hereby
continue beyond the earlier of (a) the expiration of 21 years from the death of
the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador
of the United States to the Court of St. ▇▇▇▇▇, living on the date hereof and
(b) the Last Scheduled Distribution Date. The purchase by the Master Servicer of
all Mortgage Loans and each REO Property remaining in REMIC I shall be at a
price (the "Termination Price") equal to the sum of (i) the greater of (A) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I, plus the
appraised value of each REO Property, if any, included in REMIC I, such
appraisal to be conducted by an appraiser mutually agreed upon by the Master
Servicer and the Trustee in their reasonable discretion and (B) the aggregate
fair market value of all of the assets of REMIC I (as determined by the Master
Servicer and the Trustee, as of the close of business on the third Business Day
next preceding the date upon which notice of any such termination is furnished
to Certificateholders pursuant to the third paragraph of this Section 9.1) plus
(ii) any amounts due the Interim Servicers, the Servicers and the Master
Servicer in respect of unpaid Servicing Fees, Master Servicing Compensation and
outstanding Monthly Advances and Servicing Advances.
(b) The Master Servicer shall have the right to
purchase all of the Loans and each REO Property remaining in REMIC I pursuant to
clause (i) of the preceding paragraph no later than the Determination Date in
the month immediately preceding the Distribution Date on which the Certificates
will be retired; PROVIDED, HOWEVER, that the Master Servicer may elect to
purchase all of the Loans and each REO Property remaining in REMIC I pursuant to
clause (i) above only if the aggregate Scheduled Principal Balance of the Loans
and each REO Property remaining in the Trust Fund at the time of such election
is less than or equal to 10% of the aggregate Scheduled Principal Balance of the
Loans as of the Cut-Off Date.
(c) Notice of the liquidation of the Certificates
shall be given promptly by the Securities Administrator by letter to the
Certificateholders mailed (a) in the event such notice is given in connection
with the purchase of the Loans and each REO Property by the Master Servicer, not
earlier than the 15th day and not later than the 25th day of the month next
preceding the month of the final distribution on the Certificates or (b)
otherwise during the month of such final distribution on or before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and the final payment in respect
of REMIC I Regular Interests or the Certificates will be made upon presentation
and surrender of the related Certificates at the office of the Securities
Administrator therein designated, (ii) the amount of any such final payment,
(iii) that no interest shall accrue in respect of REMIC I Regular Interests or
Certificates from and after the Interest Accrual Period relating to the final
Distribution Date therefor and (iv) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of the Securities
Administrator. In the event such notice is given in connection with the purchase
of all of the Loans and each REO Property remaining in the REMIC I by the Master
Servicer, the Master Servicer shall deliver to the Securities Administrator for
deposit in the Distribution Account not later than the last Business Day of the
month next preceding the month of the final distribution on the Certificates an
amount in immediately available funds equal to the above-described Termination
Price. The Securities Administrator shall remit (a) to the Master Servicer from
such funds deposited in the Distribution Account (i) any amounts which the
Master Servicer notifies it in writing that the Master Servicer would be
permitted to withdraw and retain from the Distribution Account pursuant to
Section 3.24 and (ii) any other amounts otherwise payable by the Securities
Administrator to the Master Servicer from amounts on deposit in the Distribution
Account pursuant to the terms of this Agreement and notified by the Master
Servicer in writing and (b) to the Servicers, any amounts reimbursable to the
Servicers pursuant to the Servicing Agreements, in each case prior to making any
final distributions pursuant to Section 9.1(d) below. Upon certification to the
Trustee and the Securities Administrator by a Servicing Officer of the making of
such final deposit, the Trustee shall promptly release to the Master Servicer
the Mortgage Files for the remaining Loans, and the Trustee shall execute all
assignments, endorsements and other instruments necessary to effectuate such
transfer in each case without recourse, representation or warranty.
(d) Upon presentation of the Certificates by the
Certificateholders on the final Distribution Date, the Securities Administrator
shall distribute to each Certificateholder so presenting and surrendering its
Certificates the amount otherwise distributable on such Distribution Date in
accordance with Section 4.1 in respect of the Certificates so presented and
surrendered. Any funds not distributed to any Holder or Holders of Certificates
being retired on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
in trust and credited to the account of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 9.1 shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Securities Administrator shall mail
a second notice to the remaining non-tendering Certificateholders to surrender
their Certificates for cancellation in order to receive the final distribution
with respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall, directly or through an agent, mail a final notice to the
remaining non-tendering Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining the funds in trust and of
contacting such Certificateholders shall be paid out of the assets remaining in
the trust funds. If within one year after the final notice any such Certificates
shall not have been surrendered for cancellation, the Securities Administrator
shall pay to the Depositor all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Securities Administrator as a result of such Certificateholder's failure
to surrender its Certificate(s) for final payment thereof in accordance with
this Section 9.1. Any such amounts held in trust by the Securities Administrator
shall be held in an Eligible Account and the Securities Administrator may direct
any depository institution maintaining such account to invest the funds in one
or more Eligible Investments. All income and gain realized from the investment
of funds deposited in such accounts held in trust by the Securities
Administrator shall be for the benefit of the Securities Administrator;
PROVIDED, HOWEVER, that the Securities Administrator shall deposit in such
account the amount of any loss of principal incurred in respect of any such
Eligible Investment made with funds in such accounts immediately upon the
realization of such loss.
Immediately following the deposit of funds in trust hereunder
in respect of the Certificates, the Trust Fund shall terminate.
Section 9.2 ADDITIONAL TERMINATION REQUIREMENTS.
(a) In the event that the Master Servicer purchases
all the Loans and each REO Property or the final payment on or other liquidation
of the last Loan or REO Property remaining in REMIC I pursuant to Section 9.1,
the Trust Fund shall be terminated in accordance with the following additional
requirements:
(i) The Securities Administrator shall
specify the first day in the 90-day liquidation period in a
statement attached to each REMIC's final Tax Return pursuant
to Treasury regulation Section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder, as evidenced by an
Opinion of Counsel obtained by and at the expense of the
Master Servicer;
(ii) During such 90-day liquidation period
and, at or prior to the time of making of the final payment on
the Certificates, the Securities Administrator shall sell all
of the assets of REMIC I to the Master Servicer for cash; and
(iii) At the time of the making of the final
payment on the Certificates, the Securities Administrator
shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Residual Certificates all cash
on hand in the Trust Fund (other than cash retained to meet
claims), and the Trust Fund shall terminate at that time.
(b) At the expense of the requesting Master Servicer
(or, if the Trust Fund is being terminated as a result of the occurrence of the
event described in clause (ii) of the first paragraph of Section 9.1, at the
expense of the Trust Fund), the Master Servicer shall prepare or cause to be
prepared the documentation required in connection with the adoption of a plan of
liquidation of each REMIC pursuant to this Section 9.2.
(c) By their acceptance of Certificates, the Holders
thereof hereby agree to authorize the Securities Administrator to specify the
90-day liquidation period for each REMIC, which authorization shall be binding
upon all successor Certificateholders.
ARTICLE X
REMIC PROVISIONS
Section 10.1 REMIC ADMINISTRATION.
(a) The Trustee shall elect to treat each REMIC as a
REMIC under the Code and, if necessary, under applicable state law and as
instructed by the Securities Administrator. Each such election shall be made by
the Securities Administrator on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the Certificates are issued. For
the purposes of the REMIC election in respect of REMIC I, the REMIC I Regular
Interests shall be designated as the Regular Interests in REMIC I and Component
R-1 shall be designated as the Residual Interest in REMIC I. For the purposes of
the REMIC election in respect of REMIC II, the REMIC II Regular Interests shall
be designated as the Regular Interests in REMIC II and Component R-2 shall be
designated as the Residual Interest in REMIC II. The Class I-A-1, Class I-A-2,
Class I-A-3, Class I-A-4, Class I-A-5, Class I-A-6, Class I-A-7, Class II-A-1,
Class II-A-2, Class II-A-3, Class M, Class B-1, Class B-2, Class B-3, Class B-4
and Class B-5 Certificates shall be designated as the Regular Interests in REMIC
III and Component R-3 shall be designated as the Residual Interest in REMIC III.
The Trustee shall not permit the creation of any "interests" in each Trust REMIC
(within the meaning of Section 860G of the Code) other than the REMIC I Regular
Interests, the REMIC II Regular Interests and the interests represented by the
Certificates.
(b) The Closing Date is hereby designated as the
"Startup Day" of each REMIC created hereunder within the meaning of Section
860G(a)(9) of the Code.
(c) The Securities Administrator shall be reimbursed
for any and all expenses relating to any tax audit of the Trust Fund (including,
but not limited to, any professional fees or any administrative or judicial
proceedings with respect to each REMIC that involve the Internal Revenue Service
or state tax authorities), including the expense of obtaining any tax related
Opinion of Counsel except as specified herein. The Securities Administrator, as
agent for each REMIC's tax matters person shall (i) act on behalf of the Trust
Fund in relation to any tax matter or controversy involving any REMIC and (ii)
represent the Trust Fund in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority with respect
thereto. The holder of the largest Percentage Interest of each Class of Residual
Certificates shall be designated, in the manner provided under Treasury
regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-1, as the tax matters person of the related REMIC created
hereunder. By their acceptance thereof, the holder of the largest Percentage
Interest of the Residual Certificates hereby agrees to irrevocably appoint the
Securities Administrator or an Affiliate as its agent to perform all of the
duties of the tax matters person for the Trust Fund.
(d) The Securities Administrator shall prepare and
file and the Trustee shall sign all of the Tax Returns in respect of each REMIC
created hereunder. The expenses of preparing and filing such returns shall be
borne by the Securities Administrator without any right of reimbursement
therefor.
(e) The Securities Administrator shall perform on
behalf of each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, as required by the Code, the REMIC
Provisions or other such compliance guidance, the Securities Administrator shall
provide (i) to any Transferor of a Residual Certificate such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Person who is not a Permitted Transferee upon receipt of
additional reasonable compensation, (ii) to the Certificateholders such
information or reports as are required by the Code or the REMIC Provisions
including reports relating to interest, original issue discount and market
discount or premium (using the Prepayment Assumption as required) and (iii) to
the Internal Revenue Service the name, title, address and telephone number of
the person who shall serve as the representative of each REMIC. The Depositor
shall provide or cause to be provided to the Securities Administrator, within
ten (10) days after the Closing Date, all information or data that the
Securities Administrator reasonably determines to be relevant for tax purposes
as to the valuations and issue prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flow of
the Certificates.
(f) To the extent in the control of the Trustee or
the Securities Administrator, each such Person (i) shall take such action and
shall cause each REMIC created hereunder to take such action as shall be
necessary to create or maintain the status thereof as a REMIC under the REMIC
Provisions, (ii) shall not take any action, cause the Trust Fund to take any
action or fail to take (or fail to cause to be taken) any action that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (A) endanger
the status of each REMIC as a REMIC or (B) result in the imposition of a tax
upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either such
event, an "Adverse REMIC Event") unless such action or inaction is permitted
under this Agreement or the Trustee and the Securities Administrator have
received an Opinion of Counsel, addressed to them (at the expense of the party
seeking to take such action but in no event at the expense of the Trustee or the
Securities Administrator) to the effect that the contemplated action will not,
with respect to any REMIC, endanger such status or result in the imposition of
such a tax, nor (iii) shall the Securities Administrator take or fail to take
any action (whether or not authorized hereunder) as to which the Trustee has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action; provided
that the Securities Administrator may conclusively rely on such Opinion of
Counsel and shall incur no liability for its action or failure to act in
accordance with such Opinion of Counsel. In addition, prior to taking any action
with respect to any REMIC or the respective assets of each, or causing any REMIC
to take any action, which is not contemplated under the terms of this Agreement,
the Securities Administrator shall consult with the Trustee or its designee, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to any REMIC, and the Securities Administrator shall not
take any such action or cause any REMIC to take any such action as to which the
Trustee has advised it in writing that an Adverse REMIC Event could occur. The
Trustee may consult with counsel to make such written advice, and the cost of
same shall be borne by the party seeking to take the action not permitted by
this Agreement, but in no event shall such cost be an expense of the Trustee.
(g) In the event that any tax is imposed on
"prohibited transactions" of any REMIC created hereunder as defined in Section
860F(a)(2) of the Code, on the "net income from foreclosure property" of such
REMIC as defined in Section 860G(c) of the Code, on any contributions to any
such REMIC after the Startup Day therefor pursuant to Section 860G(d) of the
Code, or any other tax is imposed by the Code or any applicable provisions of
state or local tax laws, such tax shall be charged (i) to the Trustee pursuant
to Section 10.3 hereof, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under this Article X, (ii) to the
Securities Administrator pursuant to Section 10.3 hereof, if such tax arises out
of or results from a breach by the Securities Administrator of any of its
obligations under this Article X, (iii) to the Master Servicer pursuant to
Section 10.3 hereof, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or under this
Article X, or (iv) against amounts on deposit in the Distribution Account and
shall be paid by withdrawal therefrom.
(h) The Trustee and the Securities Administrator
shall, for federal income tax purposes, maintain books and records with respect
to each REMIC on a calendar year and on an accrual basis.
(i) Following the Startup Day, the Trustee shall not
accept any contributions of assets to any REMIC other than in connection with
any Substitute Loan delivered in accordance with Section 2.3 unless it shall
have received an Opinion of Counsel addressed to it to the effect that the
inclusion of such assets in the Trust Fund will not cause the related REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding or
subject such REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) Neither the Trustee nor the Securities
Administrator shall knowingly enter into any arrangement by which any REMIC will
receive a fee or other compensation for services nor permit any REMIC to receive
any income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) The Securities Administrator shall apply for an
employer identification number with the Internal Revenue Service via a Form SS-4
or other comparable method for each REMIC. In connection with the foregoing, the
Securities Administrator shall provide the name and address of the person who
can be contacted to obtain information required to be reported to the holders of
Regular Interests in each REMIC as required by IRS Form 8811.
Section 10.2 PROHIBITED TRANSACTIONS AND ACTIVITIES.
None of the Depositor, the Securities Administrator, the
Master Servicer or the Trustee shall sell, dispose of or substitute for any of
the Loans (except in connection with (i) the foreclosure of a Loan, including
but not limited to, the acquisition or sale of a Mortgaged Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of REMIC I (iii) the
termination of REMIC I pursuant to Article IX of this Agreement, (iv) a
substitution pursuant to Article II of this Agreement or (v) a purchase of Loans
pursuant to Article II of this Agreement), nor acquire any assets for any REMIC
(other than REO Property acquired in respect of a defaulted Loan), nor sell or
dispose of any investments in the related Distribution Account for gain, nor
accept any contributions to any REMIC after the Closing Date (other than a
Substitute Loan delivered in accordance with Section 2.3), unless it has
received an Opinion of Counsel, addressed to the Trustee (at the expense of the
party seeking to cause such sale, disposition, substitution, acquisition or
contribution but in no event at the expense of the Trustee) that such sale,
disposition, substitution, acquisition or contribution will not (a) affect
adversely the status of any REMIC as a REMIC or (b) cause any REMIC to be
subject to a tax on "prohibited transactions" or "contributions" pursuant to the
REMIC Provisions.
Section 10.3 INDEMNIFICATION.
(a) The Trustee agrees to be liable for any taxes and
costs incurred by the Trust Fund, the Depositor, the Securities Administrator or
the Master Servicer including, without limitation, any reasonable attorneys fees
imposed on or incurred by the Trust Fund, the Depositor, the Securities
Administrator or the Master Servicer as a result of the Trustee's failure to
perform its covenants set forth in this Article X in accordance with the
standard of care of the Trustee set forth in this Agreement.
(b) The Master Servicer agrees to indemnify the Trust
Fund, the Depositor and the Trustee for any taxes and costs including, without
limitation, any reasonable attorneys' fees imposed on or incurred by the Trust
Fund, the Depositor or the Trustee, as a result of the Master Servicer's failure
to perform its covenants set forth in Article III in accordance with the
standard of care of the Master Servicer set forth in this Agreement.
(c) The Securities Administrator agrees to be liable
for any taxes and costs incurred by the Trust Fund, the Depositor or the Trustee
including, without limitation, any reasonable attorneys fees imposed on or
incurred by the Trust Fund, the Depositor or the Trustee as a result of the
Securities Administrator's failure to perform its covenants set forth in this
Article X in accordance with the standard of care of the Securities
Administrator set forth in this Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 AMENDMENT. This Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Securities Administrator
and the Trustee, without the consent of any of the Certificateholders, (a) to
cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Agreement, (b) to
modify, eliminate or add to any provisions to such extent as shall be necessary
to maintain the qualification of the Trust Fund as two REMICs at all times that
any Certificates are outstanding, provided, that such action shall not, as
evidenced by an Opinion of Counsel addressed and delivered to the Trustee,
adversely affect in any material respect the interests of any Certificateholder.
No amendment shall be deemed to adversely affect in any material respect the
interests of any Certificateholder who shall have consented thereto, and no
Opinion of Counsel shall be required to address the effect of any such amendment
on any such consenting Certificateholder.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
with the consent of the Holders of Certificates evidencing, in aggregate, not
less than 66-2/3% of the Trust Fund for the purpose of adding any provisions or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (a) reduce in any manner the amount of, or
delay the timing of, payments received on Loans which are required to be
distributed in respect of any Certificate without the consent of the Holder of
such Certificate; (b) adversely affect in any material respect the interest of
the Holders of the Senior Certificates (other than the Class R Certificates) in
a manner other than as described in (a) above without the consent of the Holders
of such Senior Certificates (other than the Class R Certificates) aggregating
not less than 66-2/3% of the aggregate Percentage Interest evidenced by all
Senior Certificates (other than the Class R Certificates); (c) adversely affect
in any material respect the interest of the Holders of the Subordinate
Certificates in a manner other than as described in clause (a) above without the
consent of the Holders of Subordinate Certificates aggregating not less than
66-2/3% of the aggregate Percentage Interest evidenced by all Subordinate
Certificates; (d) adversely affect in any material respect the interest of the
Class R Certificateholder without the consent of the Holder of the Class R
Certificates; (e) change in any material respect the rights and obligations of
the Master Servicer or successor Master Servicer under this Agreement without
the prior written consent of such party; or (f) reduce the aforesaid percentage
of the Certificates the Holders of which are required to consent to any such
amendments without the consent of the Holders of all Certificates then
outstanding; provided, that for the purposes of this Agreement, the Holder of
the Class R Certificate shall have no right to vote at all times that any Senior
Certificates (other than the Class R Certificates), or Subordinate Certificates
are outstanding if such amendment relates to the modification, elimination or
addition of any provision necessary to maintain the qualification of the Trust
Fund as three REMICs. Without limiting the generality of the foregoing, any
amendment to this Agreement required in connection with the compliance with or
the clarification of any reporting obligations described in Section 3.18 hereof
shall not require the consent of any Certificateholder or any Opinion of Counsel
or Rating Agency confirmation.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel addressed to it to the effect that
such amendment will not cause any of REMIC I, REMIC II or REMIC III of the Trust
Fund to fail to qualify as a REMIC at any time that any REMIC Regular Interests
or Regular Interest Certificates are outstanding.
As soon as practicable after the execution of any such
amendment, the Trustee shall furnish written notification of the substance of
such amendment to each Certificateholder and Rating Agency.
It shall not be necessary for the consent of the
Certificateholders under this Section 11.1 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
addressed to it stating that the execution of such amendment is authorized or
permitted by this Agreement. The Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Trustee's own rights, duties or
immunities under this Agreement.
Section 11.2 RECORDATION OF AGREEMENT; COUNTERPARTS. To the
extent permitted by applicable law, this Agreement (or an abstract hereof, if
acceptable by the applicable recording office) is subject to recordation in all
appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Depositor at the expense of
the Certificateholders, but only after the Depositor has delivered to the
Trustee an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 11.3 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of the Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
Except as otherwise expressly provided herein no
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right to vote or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association, nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless all of the
Holders of Certificates evidencing, in aggregate, not less than 25% of the Trust
Fund shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee, for
60 days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more holders of Certificates shall have any right in any manner whatever
by virtue or by availing of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.4 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES OTHER THAN 5-1401 OF THE GENERAL OBLIGATIONS LAW),
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified or registered mail, return
receipt requested (a) in the case of the Depositor, to ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Deutsche Alt-A Securities, Inc., Mortgage Loan Trust,
Series 2005-2, (telecopy number:(▇▇▇) ▇▇▇-▇▇▇▇, or such other address or
telecopy number as may hereafter be furnished to the Master Servicer and the
Trustee in writing by the Depositor, (b) in the case of the Master Servicer and
the Securities Administrator, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and for
overnight delivery to ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Deutsche Alt-A Securities, Inc., 2005-2 (telecopy number: (410)
715-2380), or such other address or telecopy number as may hereafter be
furnished to the Trustee and the Depositor in writing by the Master Servicer or
the Securities Administrator, and (c) in the case of the Trustee, at the
Corporate Trust Office or such other address or telecopy number as the Trustee
may hereafter furnish to the Master Servicer and the Depositor in writing by the
Trustee. Any notice required or permitted to be given to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given when mailed, whether or not the Certificateholder receives such
notice. A copy of any notice required to be telecopied hereunder also shall be
mailed to the appropriate party in the manner set forth above.
Section 11.6 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.7 NOTICE TO RATING AGENCIES.
The Trustee shall use its best efforts promptly to provide
notice to the Rating Agencies with respect to each of the following of which it
has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Master Servicer Event of
Default that has not been cured or waived;
3. The resignation or termination of the Master Servicer
or the Trustee;
4. The repurchase or substitution of Loans pursuant to
or as contemplated by Section 2.3;
5. The final payment to the Holders of any Class of
Certificates;
6. Any change in the location of the Distribution
Account; and
7. Any event that would result in the inability of the
Trustee to make advances regarding delinquent Loans
pursuant to Section 7.2.
The Master Servicer shall make available to each Rating Agency
copies of the following:
1. Each annual statement as to compliance described in
Section 3.16; and
2. Each annual independent public accountants' servicing
report described in Section 3.17.
Any such notice pursuant to this Section 11.7 shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by first class mail, postage prepaid, or by express delivery service
to Fitch, Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and to ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such
other addresses as the Rating Agencies may designate in writing to the parties
hereto.
Section 11.8 ARTICLE AND SECTION REFERENCES.
All article and section references used in this Agreement,
unless otherwise provided, are to articles and sections in this Agreement.
Section 11.9 GRANT OF SECURITY INTEREST.
It is the express intent of the parties hereto that the
conveyance of the Loans by the Depositor to the Trustee, on behalf of the Trust
Fund and for the benefit of the Certificateholders, be, and be construed as, a
sale of the Loans by the Depositor and not a pledge of the Loans to secure a
debt or other obligation of the Depositor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Loans are held to
be property of the Depositor, then, (a) it is the express intent of the parties
that such conveyance be deemed a pledge of the Loans by the Depositor to the
Trustee, on behalf of the Trust Fund and for the benefit of the related
Certificateholders, to secure a debt or other obligation of the Depositor and
(b)(1) this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect from
time to time in the State of New York; (2) the conveyance provided for in
Section 2.1 hereof shall be deemed to be a grant by the Depositor to the
Trustee, on behalf of the Trust Fund and for the benefit of the related
Certificateholders, of a security interest in all of the Depositor's right,
title and interest in and to the Loans and all amounts payable to the holders of
the Loans in accordance with the terms thereof and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts, other
than investment earnings, from time to time held or invested in the Distribution
Account, whether in the form of cash, instruments, securities or other property;
(3) the obligations secured by such security agreement shall be deemed to be all
of the Depositor's obligations under this Agreement, including the obligation to
provide to the Certificateholders the benefits of this Agreement relating to the
Loans and the Trust Fund; and (4) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Accordingly, the Depositor hereby grants to the Trustee, on
behalf of the Trust Fund and for the benefit of the Certificateholders, a
security interest in the Loans and all other property described in clause (2) of
the preceding sentence, for the purpose of securing to the Trustee the
performance by the Depositor of the obligations described in clause (3) of the
preceding sentence. Notwithstanding the foregoing, the parties hereto intend the
conveyance pursuant to Section 2.1 to be a true, absolute and unconditional sale
of the Loans and assets constituting the Trust Fund by the Depositor to the
Trustee, on behalf of the Trust Fund and for the benefit of the
Certificateholders.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Securities Administrator and the Trustee have caused their names to be signed
hereto by their respective officers thereunto duly authorized, all as of the day
and year first above written.
DEUTSCHE ALT-A SECURITIES, INC., as Depositor
By:_____________________________________________
Name:
Its:
By:_____________________________________________
Name:
Its:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer and Securities Administrator
By:_____________________________________________
Name:
Its:
HSBC BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee
By:_____________________________________________
Name:
Its:
With Respect to Sections 6.7, 6.8 and 6.9:
THE MURRAYHILL COMPANY
By:____________________________________
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of February 2005, before me, a notary public in
and for said State, personally appeared _____________________ known to me to be
a _____________________ of Deutsche Alt-A Securities, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of February 2005, before me, a notary public in
and for said State, personally appeared _____________________ known to me to be
a _____________________ of Deutsche Alt-A Securities, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the __ day of February 2005, before me, a notary public in
and for said State, personally appeared _________________________ known to me to
be a ___________________ of ▇▇▇▇▇ Fargo Bank, National Association, one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of February 2005, before me, a notary public in
and for said State, personally appeared _______________ known to me to be a
_______________ of HSBC Bank USA, National Association, one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS I-A-[1][3][5] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
SECURITIES ADMINISTRATOR NAMED HEREIN.
DBALT Series 2005-2, Class I-A-[1][3][5] Aggregate Certificate Principal Balance of the
I-A-[1][3][5] Certificates as of the Issue Date: $
Pass-Through Rate: Floating Denomination: $
Date of Pooling and Servicing Agreement and Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Trustee: HSBC Bank USA, National Association
No.__ Issue Date: February 28, 2005
CUSIP:________________
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class I-A [1][3][5] Certificates with respect to a trust fund consisting
primarily of a pool of conventional one- to four-family fixed rate mortgage
loans (the "Mortgage Loans") secured by one- to four- family residences, units
in planned unit developments and individual condominium units (the "Trust Fund")
sold by DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in certain assets of the
Trust Fund generally consisting of the Mortgage Loans and related assets sold by
Deutsche Alt-A Securities, Inc. (the "Depositor"). This Certificate is primarily
backed by the Group I Loans sold by DB Structured Products, Inc. to the
Depositor. ▇▇▇▇▇ Fargo Bank, N.A. will act as master servicer of the Group I
Loans (the "Master Servicer," which term includes any successors thereto under
the Agreement referred to below). The Trust Fund was created pursuant to the
Pooling and Servicing Agreement dated as of the Cut-Off Date specified above
(the "Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Master
Servicer and securities administrator (the "Securities Administrator") and HSBC
Bank USA, National Association as trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered on the Business Day immediately
preceding such Distribution Date (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of Class I-A-[1][3][5] Certificates on
such Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
I-A-[1][3][5] Certificates or otherwise by check mailed by first class mail to
the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Securities
Administrator of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose as provided in the Agreement.
The Pass-Through Rate with respect to the first Distribution
Date is equal to [[for the Class I-A-1 Certificates] 3.00% per annum and with
respect to any Distribution Date thereafter shall be a rate per annum equal to
the lesser of (a) One-Month LIBOR plus 0.40% per annum and (b) the weighted
average of the Net Mortgage Rates of the Group I Loans for the related
Distribution Date.] [[for the Class I-A-3 Certificates] 2.95% per annum and with
respect to any Distribution Date thereafter shall be a rate per annum equal to
the least of (a) One-Month LIBOR plus 0.35% per annum, (b) the weighted average
of the Net Mortgage Rates of the Group I Loans for the related Distribution Date
and (c) 6.25% per annum, with respect to the first twelve Distribution Dates and
8.50% per annum, with respect to any Distribution Date thereafter.] [[for the
Class I-A-5 Certificates] 3.10% per annum, and as to any Distribution Date
thereafter shall be a per annum rate equal to the lesser of (a) One-Month LIBOR
plus 0.50% per annum and (b) the weighted average of the Net Mortgage Rates of
the Group I Loans for the related Distribution Date.]
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificate of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans and payments received
pursuant to the related Cap Contract, all as more specifically set forth herein
and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interests of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assumes
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class I-A-[1][3][5] Certificates referred
to in the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
-----------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right if _________________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS I-A-[2][4][6] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DBALT Series 2005-2, Class I-A-[2][4][6] Initial Notional Amount of the I-A-[2][4][6]
Certificates as of the Issue Date:
Pass-Through Rate: Variable Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
Date of Pooling and Servicing Agreement and Trustee: HSBC Bank USA, National Association
Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Issue Date: February 28, 2005
No.__ CUSIP:________________
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class I-A-[2][4][6] Certificates with respect to a trust fund consisting
primarily of a pool of conventional one- to four-family fixed rate mortgage
loans (the "Mortgage Loans") secured by one- to four- family residences, units
in planned unit developments and individual condominium units (the "Trust Fund")
sold by DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in certain assets of the
Trust Fund generally consisting of the Mortgage Loans and related assets sold by
Deutsche Alt-A Securities, Inc. (the "Depositor"). This Certificate is primarily
backed by the Group I Loans sold by DB Structured Products, Inc. to the
Depositor. ▇▇▇▇▇ Fargo Bank, N.A. will act as master servicer of the Mortgage
Loans (the "Master Servicer," which term includes any successors thereto under
the Agreement referred to below). The Trust Fund was created pursuant to the
Pooling and Servicing Agreement dated as of the Cut-Off Date specified above
(the "Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Master
Servicer and securities administrator (the "Securities Administrator") and HSBC
Bank USA, National Association as trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered on the Business Day immediately
preceding such Distribution Date (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of Class I-A-[2][4][6] Certificates on
such Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date, or otherwise by check mailed by
first class mail to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Securities Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose as provided in the Agreement.
The Pass-Through Rate with respect to the first Distribution
Date shall be equal to [[for the Class I-A-2 Certificates] [2.9447% per annum,
and with respect to any Distribution Date thereafter shall be a per annum rate
equal to the excess, if any, of the weighted average of the Net Mortgage Rates
of the Group I Loans for the related Distribution Date over One-Month LIBOR plus
0.40% per annum.] [[for the Class I-A-4 Certificates] [2.9947% per annum, and
with respect to any Distribution Date thereafter shall be a per annum rate equal
to the excess, if any, of the weighted average of the Net Mortgage Rates of the
Group I Loans for the related Distribution Date over the lesser of (i) One-Month
LIBOR plus 0.35% per annum and (ii) 6.25% per annum, with respect to the first
twelve Distribution Dates and 8.50% per annum, with respect to any Distribution
Date thereafter.] [[for the Class I-A-6 Certificates] [2.8447% per annum, and
with respect to any Distribution Date thereafter shall be a per annum rate equal
to the excess, if any, of the weighted average of the Net Mortgage Rates of the
Group I Loans for the related Distribution Date over One-Month LIBOR plus 0.50%
per annum].
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificate of the Series
specified on the face hereof (herein called the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans as more specifically
set forth herein and in the Agreement. As provided in the Agreement, withdrawals
from the Collection Account and the Distribution Account may be made from time
to time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of advances made, or certain expenses incurred,
with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interests of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assumes
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class I-A-[2][4][6] Certificates referred
to in the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
-----------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right if _________________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS I-A-7 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
SECURITIES ADMINISTRATOR NAMED HEREIN.
DBALT Series 2005-2, Class I-A-7 Aggregate Certificate Principal Balance of the
I-A-7 Certificates as of the Issue Date: $
Pass-Through Rate: Variable Denomination: $
Date of Pooling and Servicing Agreement and Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Trustee: HSBC Bank USA, National Association
No.__ Issue Date: February 28, 2005
CUSIP:________________
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class I-A-7 Certificates with respect to a trust fund consisting primarily of a
pool of conventional one- to four-family fixed rate mortgage loans (the
"Mortgage Loans") secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the "Trust Fund") sold by
DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in certain assets of the
Trust Fund generally consisting of the Mortgage Loans and related assets sold by
Deutsche Alt-A Securities, Inc. (the "Depositor"). This Certificate is primarily
backed by the Group I Loans sold by DB Structured Products, Inc. to the
Depositor. ▇▇▇▇▇ Fargo Bank, N.A. will act as master servicer of the Group I
Loans (the "Master Servicer," which term includes any successors thereto under
the Agreement referred to below). The Trust Fund was created pursuant to the
Pooling and Servicing Agreement dated as of the Cut-Off Date specified above
(the "Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Master
Servicer and securities administrator (the "Securities Administrator") and HSBC
Bank USA, National Association as trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of Class I-A-7 Certificates on such Distribution Date pursuant to
the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
I-A-7 Certificates or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Securities
Administrator for that purpose as provided in the Agreement.
The Pass-Through Rate with respect to the first Distribution
Date is equal to 5.9447% per annum and with respect to any Distribution Date
thereafter shall be a rate per annum equal to the weighted average of the Net
Mortgage Rates of the Group I Loans for the related Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificate of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interests of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assumes
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class I-A-7 Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
-----------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right if _________________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS II-A-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
SECURITIES ADMINISTRATOR NAMED HEREIN.
DBALT Series 2005-2, Class II-A-1 Aggregate Certificate Principal Balance of the
II-A-1 Certificates as of the Issue Date: $
Pass-Through Rate: Floating Denomination: $
Date of Pooling and Servicing Agreement and Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Trustee: HSBC Bank USA, National Association
No.__ Issue Date: February 28, 2005
CUSIP:________________
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class II-A-1 Certificates with respect to a trust fund consisting primarily of a
pool of conventional one- to four-family fixed rate mortgage loans (the
"Mortgage Loans") secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the "Trust Fund") sold by
DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in certain assets of the
Trust Fund generally consisting of the Group II Loans and related assets sold by
Deutsche Alt-A Securities, Inc. (the "Depositor"). This Certificate is primarily
backed by the Group II Mortgage Loans sold by DB Structured Products, Inc. to
the Depositor. ▇▇▇▇▇ Fargo Bank, N.A. will act as master servicer of the Group
II Loans (the "Master Servicer," which term includes any successors thereto
under the Agreement referred to below). The Trust Fund was created pursuant to
the Pooling and Servicing Agreement dated as of the Cut-Off Date specified above
(the "Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Master
Servicer and securities administrator (the "Securities Administrator") and HSBC
Bank USA, National Association as trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to the
Holders of Class II-A-1 Certificates on such Distribution Date pursuant to the
Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
II-A-1 Certificates or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Securities
Administrator for that purpose as provided in the Agreement.
The Pass-Through Rate with respect to the first Distribution
Date is equal to 2.90% per annum and with respect to any Distribution date
thereafter shall be a rate per annum equal to the lesser of (a) One-Month LIBOR
plus 0.30% per annum and (b) the weighted average of the Net Mortgage Rates of
the Group II Loans for the related Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificate of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans and payments received
pursuant to the related Cap Contract, all as more specifically set forth herein
and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interests of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assumes
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class II-A-1 Certificates referred to in
the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
-----------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right if _________________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-5
FORM OF CLASS II-A-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DBALT Series 2005-2, Class II-A-2 Initial Notional Amount of the II-A-2 Certificates
as of the Issue Date:
Pass-Through Rate: Variable Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
Date of Pooling and Servicing Agreement and Trustee: HSBC Bank USA, National Association
Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Issue Date: February 28, 2005
No.__ CUSIP:________________
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class II-A-2 Certificates with respect to a trust fund consisting primarily of a
pool of conventional one- to four-family fixed rate mortgage loans (the
"Mortgage Loans") secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the "Trust Fund") sold by
DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in certain assets of the
Trust Fund generally consisting of the Mortgage Loans and related assets sold by
Deutsche Alt-A Securities, Inc. (the "Depositor"). This Certificate is primarily
backed by the Group II Loans sold by DB Structured Products, Inc. to the
Depositor. ▇▇▇▇▇ Fargo Bank, N.A. will act as master servicer of the Mortgage
Loans (the "Master Servicer," which term includes any successors thereto under
the Agreement referred to below). The Trust Fund was created pursuant to the
Pooling and Servicing Agreement dated as of the Cut-Off Date specified above
(the "Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Master
Servicer and securities administrator (the "Securities Administrator") and HSBC
Bank USA, National Association as trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered on the Business Day immediately
preceding such Distribution Date (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of Class I-A-2 Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date, or otherwise by check mailed by
first class mail to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Securities Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose as provided in the Agreement.
The Pass-Through Rate with respect to the first Distribution
Date shall be equal to 2.4592% per annum, and with respect to any Distribution
Date thereafter shall be a per annum rate equal to the excess, if any, of the
weighted average of the Net Mortgage Rates of the Group II Loans for the related
Distribution Date over One-Month LIBOR plus 0.30% per annum.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificate of the Series
specified on the face hereof (herein called the "Certificates"). The
Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans as more specifically
set forth herein and in the Agreement. As provided in the Agreement, withdrawals
from the Collection Account and the Distribution Account may be made from time
to time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of advances made, or certain expenses incurred,
with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interests of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assumes
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class II-A-2 Certificates referred to in
the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
-----------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right if _________________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS II-A-3 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
SECURITIES ADMINISTRATOR NAMED HEREIN.
DBALT Series 2005-2, Class II-A-3 Aggregate Certificate Principal Balance of the
II-A-3 Certificates as of the Issue Date: $
Pass-Through Rate: Variable Denomination: $
Date of Pooling and Servicing Agreement and Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Trustee: HSBC Bank USA, National
No.__ Issue Date: February 28, 2005
CUSIP:________________
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class II-A-3 Certificates with respect to a trust fund consisting primarily of a
pool of conventional one- to four-family fixed rate mortgage loans (the
"Mortgage Loans") secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the "Trust Fund") sold by
DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in certain assets of the
Trust Fund generally consisting of the Mortgage Loans and related assets sold by
Deutsche Alt-A Securities, Inc. (the "Depositor"). This Certificate is primarily
backed by the Group II Loans sold by DB Structured Products, Inc. to the
Depositor. ▇▇▇▇▇ Fargo Bank, N.A. will act as master servicer of the Group I
Loans (the "Master Servicer," which term includes any successors thereto under
the Agreement referred to below). The Trust Fund was created pursuant to the
Pooling and Servicing Agreement dated as of the Cut-Off Date specified above
(the "Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Master
Servicer and securities administrator (the "Securities Administrator") and HSBC
Bank USA, National Association as trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein shall have the meaning ascribed to
them in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of Class II-A-3 Certificates on such Distribution Date pursuant
to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
I-A-3 Certificates or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Securities
Administrator for that purpose as provided in the Agreement.
The Pass-Through Rate with respect to the first Distribution
Date is equal to 5.3532% per annum and with respect to any Distribution Date
thereafter shall be a rate per annum equal to the weighted average of the Net
Mortgage Rates of the Group II Loans for the related Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificate of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interests of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assumes
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class II-A-3 Certificates referred to in
the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
---------------------------------
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
-----------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right if _________________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS M CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATE TO THE GROUP I SENIOR CERTIFICATES AND
THE GROUP II SENIOR CERTIFICATES, TO THE EXTENT DESCRIBED IN THE
AGREEMENT REFERRED TO HEREIN.
ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE
REPRESENTATIONS SET FORTH IN SECTION 5.2(C) OF THE AGREEMENT REFERRED
TO HEREIN.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
SECURITIES ADMINISTRATOR NAMED HEREIN.
DBALT Series 2005-2, Class M Aggregate Certificate Principal Balance of the
Class M Certificates as of the Issue Date:
$_______________
Pass-Through Rate: Variable Denomination: $______________
Date of Pooling and Servicing Agreement Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
and Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Trustee: HSBC Bank USA, National Association
No.___ Issue Date: February 28, 2005
CUSIP:_________________
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class M Certificates with respect to a trust fund consisting primarily of a pool
of conventional one- to four-family fixed rate mortgage loans (the "Mortgage
Loans") secured by one- to four- family residences, units in planned unit
developments and individual condominium units (the "Trust Fund") sold by
DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in certain assets of the
Trust Fund generally consisting of the Mortgage Loans and related assets sold by
Deutsche Alt-A Securities, Inc. (the "Depositor"). The Mortgage Loans were sold
by DB Structured Products, Inc. to the Depositor. ▇▇▇▇▇ Fargo Bank, N.A. will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as
of the Cut-Off Date specified above (the "Agreement"), among the Depositor,
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and securities administrator (the
"Securities Administrator") and HSBC Bank USA, National Association as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms used
herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to the
Holders of Class M Certificates on such Distribution Date pursuant to the
Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
M Certificates, or otherwise by check mailed by first class mail to the address
of the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Securities Administrator of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Securities Administrator
for that purpose as provided in the Agreement.
The Pass-Through Rate applicable with respect to the first
Distribution Date shall be 5.8888% per annum, and with respect to any
Distribution Date thereafter shall equal a rate per annum equal to the weighted
average of the Net Mortgage Rates of the Group I Mortgage Loans and the Group II
Mortgage Loans for the related Distribution Date (weighted on the basis of the
results of subtracting from the aggregate principal balance of each loan group
the current aggregate Certificate Principal Balance of the related Senior
Certificates, other than the Class I-A-2, Class I-A-4, Class I-A-6 and Class
II-A-2 Certificates).
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificate of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans as more specifically
set forth herein and in the Agreement. As provided in the Agreement, withdrawals
from the Collection Account and the Distribution Account may be made from time
to time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of advances made, or certain expenses incurred,
with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interests of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
Any transferee of this Certificate shall be deemed to make the
representations set forth in Section 5.2(c) of the Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assume
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:___________________________________
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
-----------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right if _________________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8
FORM OF CLASS B-[1][2] CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE GROUP I
SENIOR CERTIFICATES, THE GROUP II SENIOR CERTIFICATES, THE CLASS M
CERTIFICATES [AND THE CLASS B-1 CERTIFICATES], TO THE EXTENT DESCRIBED
IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES A CERTIFICATION PURSUANT TO SECTION 5.2(C) OF THE
AGREEMENT.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
SECURITIES ADMINISTRATOR NAMED HEREIN.
DBALT Series 2005-2, Class B-[1][2] Aggregate Certificate Principal Balance of the
Class B-[1][2] Certificates as of the Issue Date: $
Pass-Through Rate: Variable Denomination: $
Date of Pooling and Servicing Agreement Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
and Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Trustee: HSBC Bank USA, National Association
No. ______ Issue Date: February 28, 2005
CUSIP:
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class B-[1][2] Certificates with respect to a trust fund consisting primarily of
a pool of conventional one- to four-family fixed rate mortgage loans (the
"Mortgage Loans") secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the "Trust Fund") sold by
DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Cede & Co.] is the registered owner of
the Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in certain assets of the
Trust Fund generally consisting of the Mortgage Loans and related assets sold by
Deutsche Alt-A Securities, Inc. (the "Depositor"). The Mortgage Loans were sold
by DB Structured Products, Inc. to the Depositor. ▇▇▇▇▇ Fargo Bank, N.A. will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as
of the Cut-Off Date specified above (the "Agreement"), among the Depositor,
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and securities administrator (the
"Securities Administrator") and HSBC Bank USA, National Association as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms used
herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs (the "Record Date"), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-[1][2] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
B-[1][2] Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Securities
Administrator for that purpose as provided in the Agreement.
The Pass-Through Rate applicable with respect to the first
Distribution Date shall be 5.8888% per annum, and with respect to any
Distribution Date thereafter shall equal a rate per annum equal to the weighted
average of the Net Mortgage Rates of the Group I Mortgage Loans and the Group II
Mortgage Loans for the related Distribution Date (weighted on the basis of the
results of subtracting from the aggregate principal balance of each loan group
the current aggregate Certificate Principal Balance of the related Senior
Certificates, other than the Class I-A-2, Class I-A-4, Class I-A-6 and Class
II-A-2 Certificates).
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interest of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
No transfer of this Certificate shall be made to any person
unless the Transferee provides a certification pursuant to Section 5.2(c) of the
Agreement.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assume
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-[1][2] Certificates referred to in
the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-9
FORM OF CLASS B-[3][4][5] CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE GROUP I
SENIOR CERTIFICATES, THE GROUP II SENIOR CERTIFICATES, THE CLASS M
CERTIFICATES, THE CLASS B-1 CERTIFICATES [,/AND] CLASS B-2 CERTIFICATES
[[,/AND] CLASS B-3 CERTIFICATES [,/AND] CLASS B-4 CERTIFICATES], TO THE
EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
SECURITIES ADMINISTRATOR NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND (1) OUTSIDE OF THE UNITED STATES WITHIN THE
MEANING OF AND IN COMPLIANCE WITH REGULATION S UNDER THE ACT
("REGULATION S"), OR (2) WITHIN THE UNITED STATES TO (A) "QUALIFIED
INSTITUTIONAL BUYERS" WITHIN THE MEANING OF AND IN COMPLIANCE WITH RULE
144A UNDER THE ACT ("RULE 144A") OR (B) TO INSTITUTIONAL INVESTORS THAT
ARE "ACCREDITED INVESTORS" WITHIN THE MEANING OF RULE 501(A)(1), (2),
(3) OR (7) OF "REGULATION D" UNDER THE ACT.
[THIS CERTIFICATE IS A REGULATION S TEMPORARY GLOBAL CERTIFICATE FOR
PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). PRIOR TO THE DATE THAT IS 40
DAYS AFTER THE LATER OF (I) THE COMMENCEMENT OF THE OFFERING OF THE
OFFERED CERTIFICATES AND (II) THE CLOSING DATE, THIS CERTIFICATE MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED
STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[NO BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE
SHALL BE ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREIN
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE
TERMS OF THE AGREEMENT (AS DEFINED HEREIN).]
[THE HOLDER OF THIS REGULATION S PERMANENT GLOBAL CERTIFICATE BY ITS
ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
CERTIFICATE WITHIN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) PRIOR TO THE DATE WHICH IS THE
LATER OF (I) 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND (II) THE
DATE ON WHICH THE REQUISITE CERTIFICATIONS ARE DUE TO AND PROVIDED TO
THE TRUSTEE AND SECURITIES ADMINISTRATOR PURSUANT TO THE AGREEMENT (AS
DEFINED BELOW), EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.]
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES A CERTIFICATION PURSUANT TO SECTION 5.2(C) OF THE
AGREEMENT.
DBALT Series 2005-2, Class B-[3][4][5] Aggregate Certificate Principal Balance of the
Class B-[3][4][5] Certificates as of the Issue
Date: $
Pass-Through Rate: Variable Denomination: $
Date of Pooling and Servicing Agreement Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
and Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Trustee: HSBC Bank USA, National Association
No. ______ Issue Date: February 28, 2005
CUSIP:
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class B-[3][4][5] Certificates with respect to a trust fund consisting primarily
of a pool of conventional one- to four-family fixed rate mortgage loans (the
"Mortgage Loans") secured by one- to four- family residences, units in planned
unit developments and individual condominium units (the "Trust Fund") sold by
DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Deutsche Bank Securities Inc.] is the
registered owner of the Percentage Interest evidenced hereby in the beneficial
ownership interest of Certificates of the same Class as this Certificate in
certain assets of the Trust Fund generally consisting of the Mortgage Loans and
related assets sold by Deutsche Alt-A Securities, Inc. (the "Depositor"). The
Mortgage Loans were sold by DB Structured Products, Inc. to the Depositor. ▇▇▇▇▇
Fargo Bank, N.A. will act as master servicer of the Mortgage Loans (the "Master
Servicer," which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-Off Date specified above (the
"Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer
and securities administrator (the "Securities Administrator") and HSBC Bank USA,
National Association as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs (the "Record Date"), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class B-[3][4][5] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
B-[3][4][5] Certificates, or otherwise by check mailed by first class mail to
the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Securities
Administrator of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose as provided in the Agreement.
The Pass-Through Rate applicable with respect to the first
Distribution Date shall be 5.8888% per annum, and with respect to any
Distribution Date thereafter shall equal a rate per annum equal to the weighted
average of the Net Mortgage Rates of the Group I Mortgage Loans and the Group II
Mortgage Loans for the related Distribution Date (weighted on the basis of the
results of subtracting from the aggregate principal balance of each loan group
the current aggregate Certificate Principal Balance of the related Senior
Certificates, other than the Class I-A-2, Class I-A-4, Class I-A-6 and Class
II-A-2 Certificates).
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interest of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon Rule
144A or Regulation S under the 1933 Act, written certifications from the Holder
of the Certificate desiring to effect the transfer, and from such Holder's
prospective transferee, substantially in the forms attached to the Agreement as
Exhibits B-1 and B-3, respectively, (ii) if such transfer is purportedly being
made in reliance upon Rule 501(a) under the 1933 Act, written certifications
from the Holder of the Certificate desiring to effect the transfer and from such
Holder's prospective transferee, substantially in the form attached to the
Agreement as Exhibit B-2 and (iii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee, the Master Servicer or the Securities
Administrator in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. None of the Depositor, the Trustee or the Securities
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Depositor, the Master Servicer and the Securities Administrator
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of this Certificate shall be made to any person
unless the Transferee provides a certification pursuant to Section 5.2(c) of the
Agreement.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assume
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:__________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-[3][4][5] Certificates referred to
in the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:__________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT A-10
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02(C) OF THE
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE
SECURITIES ADMINISTRATOR THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED
STATES OR ANY POSSESSION THEREOF, ANY STATE OR POLITICAL SUBDIVISION
THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (2) ANY ORGANIZATION
(OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE,
(3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3)
SHALL HEREINAFTER BE REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR
(4) AN AGENT OF A DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH
TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, AND (II)
SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN
AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED
TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH AND THE
PROVISIONS OF SECTION 5.02(C) OF THE AGREEMENT REFERRED TO HEREIN. ANY
PERSON THAT IS A DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING
BENEFICIAL OWNERSHIP OF THIS CERTIFICATE.
DBALT Series 2005-2, Class R Aggregate Percentage Interest of the Class R
Certificates as of the Issue Date: 100.00%
Pass-Through Rate: Variable
Date of Pooling and Servicing Agreement Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
and Cut-off Date: February 1, 2005
First Distribution Date: March 25, 2005 Trustee: HSBC Bank USA, National Association
No __ Issue Date: February 28, 2005
DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-2
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the distributions allocable to the
Class R Certificates with respect to a trust fund consisting primarily of a pool
of conventional one- to four-family fixed rate mortgage loans (the "Mortgage
Loans") secured by one- to four- family residences, units in planned unit
developments and individual condominium units (the "Trust Fund") sold by
DEUTSCHE ALT-A SECURITIES, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [Deutsche Bank Securities Inc.] is the
registered owner of the Percentage Interest evidenced hereby in the beneficial
ownership interest of Certificates of the same Class as this Certificate in
certain assets of the Trust Fund generally consisting of the Loans and related
assets sold by Deutsche Alt-A Securities, Inc. (the "Depositor"). The Loans were
sold by DB Structured Products, Inc. to the Depositor. ▇▇▇▇▇ Fargo Bank, N.A.
will act as master servicer of the Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as
of the Cut-Off Date specified above (the "Agreement"), among the Depositor,
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and securities administrator (the
"Securities Administrator") and HSBC Bank USA, National Association as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms used
herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following such 25th day (a "Distribution Date"),
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs (the "Record Date"), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class R Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
R Certificates, or otherwise by check mailed by first class mail to the address
of the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Securities Administrator of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Securities Administrator
for that purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificate of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, as more specifically
set forth herein and in the Agreement. As provided in the Agreement, withdrawals
from the Collection Account and the Distribution Account may be made from time
to time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of advances made, or certain expenses incurred,
with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Securities
Administrator with the consent of the Holders of Certificates evidencing, in the
aggregate, not less than 66-2/3% Percentage Interest of all Certificates. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Securities Administrator
as provided in the Agreement, duly endorsed by, or accompanied by an assignment
in the form below or other written instrument of transfer in form satisfactory
to the Securities Administrator duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
Each Holder of this Certificate will be deemed to have agreed
to be bound by the restrictions set forth in the Agreement to the effect that
(i) each person holding or acquiring any Ownership Interest in this Certificate
must be a United States Person and a Permitted Transferee, (ii) the transfer of
any Ownership Interest in this Certificate will be conditioned upon the delivery
to the Securities Administrator of, among other things, an affidavit to the
effect that it is a United States Person and Permitted Transferee, (iii) any
attempted or purported transfer of any Ownership Interest in this Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee, and (iv) if any person other than a United
States Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have the
right, in its sole discretion and without notice to the Holder of this
Certificate, to sell this Certificate to a purchaser selected by the Depositor,
which purchaser may be the Depositor, or any affiliate of the Depositor, on such
terms and conditions as the Depositor may choose.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Securities Administrator (i) an affidavit to the effect that such transferee is
any Person other than a Disqualified Organization or the agent (including a
broker, nominee or middleman) of a Disqualified Organization, and (ii) a
certificate that acknowledges that (A) the Class R Certificates have been
designated as representing the beneficial ownership of the residual interests in
each REMIC, (B) it will include in its income a PRO RATA share of the net income
of the Trust Fund and that such income may be an "excess inclusion," as defined
in the Code, that, with certain exceptions, cannot be offset by other losses or
benefits from any tax exemption, and (C) it expects to have the financial means
to satisfy all of its tax obligations including those relating to holding the
Class R Certificates. Notwithstanding the registration in the Certificate
Register of any transfer, sale or other disposition of this Certificate to a
Disqualified Organization or an agent (including a broker, nominee or middleman)
of a Disqualified Organization, such registration shall be deemed to be of no
legal force or effect whatsoever and such Person shall not be deemed to be a
Certificateholder for any purpose, including, but not limited to, the receipt of
distributions in respect of this Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02(c) of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause any portion
of the Trust Fund to cease to qualify as a REMIC or cause the imposition of a
tax upon any REMIC.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Master Servicer, the Trustee, the
Securities Administrator and any agent of the Depositor, the Master Servicer,
the Trustee or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Trustee or the Securities Administrator
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by the Securities Administrator and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement of all the
Mortgage Loans and all property acquired in respect of such Mortgage Loans. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Securities Administrator assume
any responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Securities Administrator, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:___________________________________
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
-----------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right if _________________
survivorship and not as tenants (State)
in common
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to____% evidenced by the within Asset-Backed Pass-
Through Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:_______________________________________________________________________
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________________________________________
________________________________ for the account of ___________________________,
account number______________ or, if mailed by check, to ________________________
_______________________________________________________________________________.
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
_______________________________________________________________________________>
This information is provided by ______________________________________,
the assignee named above, or ____________________________________, as its agent.
EXHIBIT B-1
FORM OF TRANSFEROR REPRESENTATION LETTER
[Date]
▇▇▇▇▇ Fargo Bank, N.A.
Sixth and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust DBALT-2005-2
Re: Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Series
2005-2 Asset Backed Pass-Through Certificates Class B-3, Class
B-4 and Class B-5 Certificates
------------------------------
Ladies and Gentlemen:
In connection with the transfer by ______________________ (the
"Transferor") to ___________________ (the "Transferee") of the captioned
mortgage pass-through certificates (the "Certificates"), the Transferor hereby
certifies as follows:
Neither the Transferor nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, (e) has taken any other action, that (in the case of each of
subclauses (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933, as amended (the "1933 Act"), or
would render the disposition of any Certificate a violation of Section 5 of the
1933 Act or any state securities law or would require registration or
qualification pursuant thereto. The Transferor will not act, nor has it
authorized or will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to any Certificate. The Transferor will not
sell or otherwise transfer any of the Certificates, except in compliance with
the provisions of that certain Pooling and Servicing Agreement, dated as of
February 1, 2005, among Deutsche Alt-A Securities, Inc. as Depositor, ▇▇▇▇▇
Fargo Bank, N.A. as Master Servicer and Securities Administrator and HSBC Bank
USA, National Association as trustee (the "Pooling and Servicing Agreement"),
pursuant to which Pooling and Servicing Agreement the Certificates were issued.
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Very truly yours,
[Transferor]
By: _________________________________
Name:
Title:
FORM OF TRANSFEREE REPRESENTATION LETTER
[Date]
▇▇▇▇▇ Fargo Bank, N.A.
Sixth and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust DBALT 2005-2
Re: Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Series
2005-2 Asset Backed Pass-Through Certificates Class B-3, Class
B-4 and Class B-5 Certificates
--------------------------------------------------------------
Ladies and Gentlemen:
In connection with the purchase from
______________________________ (the "Transferor") on the date hereof of the
captioned trust certificates (the "Certificates"), (the "Transferee") hereby
certifies as follows:
1. The Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933 (the "1933 Act") and has
completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. The Transferee is aware
that the sale to it is being made in reliance on Rule 144A.
The Transferee is acquiring the Certificates for its own
account or for the account of a qualified institutional buyer,
and understands that such Certificate may be resold, pledged
or transferred only (i) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer
to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the 1933 Act.
2. The Transferee has been furnished with all
information regarding (a) the Certificates and distributions
thereon, (b) the nature, performance and servicing of the
Mortgage Loans, (c) the Pooling and Servicing Agreement
referred to below, and (d) any credit enhancement mechanism
associated with the Certificates, that it has requested.
3. The Transferee: (a) is not an employee benefit or
other plan subject to the prohibited transaction provisions of
the Employee Retirement Income Security Act of 1974, as
amended ("ERISA), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code") (each, a "Plan"), or any
other person (including an investment manager, a named
fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan within the meaning of the Department
of Labor ("DOL") regulation at 29 C.F.R. ss.2510.3-101 or (b)
(i) it is an insurance company, (ii) the source of funds used
to acquire or hold the certificate or interest therein is an
"insurance company general account," as such term is defined
in Prohibited Transaction Class Exemption ("PTCE") 95-60, and
(iii) the conditions in Sections I and III of PTCE 95-60 have
been satisfied.]
In addition, the Transferee hereby certifies, represents and
warrants to, and covenants with, the Depositor, the Trustee, the Securities
Administrator and the Master Servicer that the Transferee will not transfer such
Certificates to any Plan or person unless such Plan or person meets the
requirements set forth in paragraph 3 above.
All capitalized terms used but not otherwise defined herein
have the respective meanings assigned thereto in the Pooling and Servicing
Agreement, dated as of February 1, 2005, among Deutsche Alt-A Securities, Inc.
as Depositor, ▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer and Securities
Administrator and HSBC Bank USA, National Association as Trustee, pursuant to
which the Certificates were issued.
[TRANSFEREE]
By:__________________________
Name:
Title:
ANNEX 1 TO EXHIBIT B-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator, with respect to the asset backed pass-through certificates (the
"Certificates") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because (i) the Transferee
owned and/or invested on a discretionary basis $________________1 in securities
(except for the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ BANK. The Transferee (a) is a national bank or banking
institution organized under the laws of any State, territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, A COPY OF WHICH IS
ATTACHED HERETO.
------------------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, A COPY OF WHICH IS
ATTACHED HERETO.
___ BROKER-DEALER. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ INVESTMENT ADVISOR The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) securities issued or guaranteed by the U.S. or
any instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii) securities
owned but subject to a repurchase agreement and (viii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee and did not
include any of the securities referred to in the preceding paragraph. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", the
Transferee agrees that, in connection with any purchase of securities sold to
the Transferee for the account of a third party (including any separate account)
in reliance on Rule 144A, the Transferee will only purchase for the account of a
third party that at the time is a "qualified institutional buyer" within the
meaning of Rule 144A. In addition, the Transferee agrees that the Transferee
will not purchase securities for a third party unless the Transferee has
obtained a current representation letter from such third party or taken other
appropriate steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of "qualified institutional buyer" set forth
in Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
Dated:
___________________________________
Print Name of Transferee
By:________________________________
Name:
Title:
ANNEX 2 TO EXHIBIT B-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator, with respect to the asset backed pass-through certificates (the
"Certificates") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the entity purchasing the
Certificates (the "Transferee") or, if the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because the Transferee is part of a Family of
Investment Companies (as defined below), is such an officer of the investment
adviser (the "Adviser").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as defined in Rule 144A because
(i) the Transferee is an investment company registered under the Investment
Company Act of 1940, and (ii) as marked below, the Transferee alone, or the
Transferee's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used.
___ The Transferee owned $________________________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
___ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $_______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A. In addition, the Transferee will
only purchase for the Transferee's own account.
6. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Dated:
_____________________________________
Print Name of Transferee or Advisor
By:__________________________________
Name:
Title:
IF AN ADVISER:
_____________________________________
Print Name of Transferee
FORM OF TRANSFEREE REPRESENTATION LETTER
The undersigned hereby certifies on behalf of the purchaser
named below (the "Purchaser") as follows:
1. I am an executive officer of the Purchaser.
2. The Purchaser is a "qualified institutional buyer", as
defined in Rule 144A, ("Rule 144A") under the Securities Act of 1933,
as amended.
3. As of the date specified below (which is not earlier than
the last day of the Purchaser's most recent fiscal year), the amount of
"securities", computed for purposes of Rule 144A, owned and invested on
a discretionary basis by the Purchaser was in excess of $100,000,000.
Name of Purchaser _____________________________________________________________
By: (Signature) _______________________________________________________________
Name of Signatory _____________________________________________________________
Title _________________________________________________________________________
Date of this certificate ______________________________________________________
Date of information provided in paragraph 3 ___________________________________
EXHIBIT B-2
FORM OF TRANSFEROR REPRESENTATION LETTER
____________, 20__
▇▇▇▇▇ Fargo Bank, N.A.
Sixth and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust DBALT 2005-2
Re: Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Series
2005-2 Asset Backed Pass-Through Certificates Class B-3, Class
B-4 and Class B-5 Certificates
--------------------------------------------------------------
Ladies and Gentlemen:
In connection with the transfer by ________________ (the
"Transferor") to __________________________ (the "Transferee") of the captioned
mortgage pass-through certificates (the "Certificates"), the Transferor hereby
certifies as follows:
Neither the Seller nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933 (the "Act'), that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities law, or
that would require registration or qualification pursuant thereto. The Seller
will not act, in any manner set forth in the foregoing sentence with respect to
any Certificate. The Seller has not and will not sell or otherwise transfer any
of the Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
Very truly yours,
______________________________________
(Transferor)
By:___________________________________
Name:
Title:
FORM OF TRANSFEREE LETTER
_______________, 20__
▇▇▇▇▇ Fargo Bank, N.A.
Sixth and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust DBALT 2005-2
Re: Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Series
2005-2 Asset Backed Pass-Through Certificates Class B-3, Class
B-4 and Class B-5 Certificates
--------------------------------------------------------------
Ladies and Gentlemen:
In connection with the transfer by ______________________ (the
"Transferor") to __________________________ (the "Transferee") of the captioned
mortgage pass-through certificates (the "Certificates"), the Transferee hereby
certifies as follows:
1. The Transferee understands that (a) the Certificates have
not been and will not be registered or qualified under the Securities
Act of 1933, as amended (the "Act") or any state securities law, (b)
the Depositor is not required to so register or qualify the
Certificates, (c) the Certificates may be resold only if registered and
qualified pursuant to the provisions of the Act or any state securities
law, or if an exemption from such registration and qualification is
available, (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates and (e) the
Certificates will bear a legend to the foregoing effect.
2. The Transferee is acquiring the Certificates for its own
account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
3. The Transferee is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such matters
related to securities similar to the Certificates, such that it is
capable of evaluating the merits and risks of investment in the
Certificates, (b) able to bear the economic risks of such an investment
and (c) an "accredited investor" within the meaning of Rule 501(a)
promulgated pursuant to the Act.
4. The Transferee has been furnished with, and has had an
opportunity to review (a) a copy of the Pooling and Servicing Agreement
and (b) such other information concerning the Certificates, the
Mortgage Loans and the Depositor as has been requested by the
Transferee from the Depositor or the Transferor and is relevant to the
Transferee's decision to purchase the Certificates. The Transferee has
had any questions arising from such review answered by the Depositor or
the Transferor to the satisfaction of the Transferee.
5. The Transferee has not and will not nor has it authorized
or will it authorize any person to (a) offer, pledge, sell, dispose of
or otherwise transfer any Certificate, any interest in any Certificate
or any other similar security to any person in any manner, (b) solicit
any offer to buy or to accept a pledge, disposition of other transfer
of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approach
or negotiate with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any
manner, (d) make any general solicitation by means of general
advertising or in any other manner or (e) take any other action, that
(as to any of (a) through (e) above) would constitute a distribution of
any Certificate under the Act, that would render the disposition of any
Certificate a violation of Section 5 of the 1933 Act or any state
securities law, or that would require registration or qualification
pursuant thereto. The Transferee will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of
the Pooling and Servicing Agreement.
6. The Transferee: (a) is not an employee benefit or other
plan subject to the prohibited transaction provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code") (each, a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly
or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any Plan within the meaning of the Department of Labor
("DOL") regulation at 29 C.F.R. ss.12510.3-101 or (b) (i) it is an
insurance company, (ii) the source of funds used to acquire or hold the
certificate or interest therein is an "insurance company general
account," as such term is defined in Prohibited Transaction Class
Exemption ("PTCE") 95-60, and (iii) the conditions in Sections I and
III of PTCE 95-60 have been satisfied.]
In addition, the Transferee hereby certifies, represents and
warrants to, and covenants with, the Depositor, the Trustee, the Securities
Administrator and the Master Servicer that the Transferee will not transfer such
Certificates to any Plan or person unless such Plan or person meets the
requirements set forth in paragraph 6 above.
Very truly yours,
By:________________________________
Name:
Title:
EXHIBIT B-3
FORM OF REGULATION S TRANSFER CERTIFICATE
[Date]
▇▇▇▇▇ Fargo Bank, N.A.
Sixth and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust DBALT 2005-2
Re: Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Series
2005-2 Asset Backed Pass-Through Certificates Class B-3, Class
B-4, Class B-5
--------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing
Agreement (the "Agreement"), dated as of February 1, 2005, among Deutsche Alt-A
Securities, Inc. (the "Depositor"), ▇▇▇▇▇ Fargo Bank, N.A., as master and
securities administrator (the "Master Servicer") and HSBC Bank USA, National
Association, as trustee (the "Trustee"). Capitalized terms used herein but not
defined herein shall have the meanings assigned thereto in the Agreement.
This letter relates to U.S. $[__________] Certificate
Principal Balance of Class B-[3][4][5] Certificates (the "Certificates") which
are held in the name of [name of transferor] (the "Transferor") to effect the
transfer of the Certificates to a person who wishes to take delivery thereof in
the form of an equivalent beneficial interest [name of transferee] (the
"Transferee").
In connection with such request, the Transferor hereby
certifies that such transfer has been effected in accordance with the transfer
restrictions set forth in the Agreement and the private placement memorandum
dated February 25, 2005 relating to the Certificates and that the following
additional requirements (if applicable) were satisfied:
(a) the offer of the Certificates was not made to a person in
the United States;
(b) at the time the buy order was originated, the Transferee
was outside the United States or the Transferor and any person acting on its
behalf reasonably believed that the Transferee was outside the United States;
(c) no directed selling efforts were made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(d) the transfer or exchange is not part of a plan or scheme
to evade the registration requirements of the Securities Act;
(e) the Transferee is not a U.S. Person, as defined in
Regulation S under the Securities Act;
(f) the transfer was made in accordance with the applicable
provisions of Rule 903(b)(2) or (3) or Rule 904(b)(1), as the case may be; and
(g) the Transferee understands that the Certificates have not
been and will not be registered under the Securities Act, that any offers, sales
or deliveries of the Certificates purchased by the Transferee in the United
States or to U.S. persons prior to the date that is 40 days after the later of
(i) the commencement of the offering of the Certificates and (ii) the Closing
Date, may constitute a violation of United States law, and that (x)
distributions of principal and interest and (y) the exchange of beneficial
interests in a Temporary Regulation S Global Certificate for beneficial
interests in the related Permanent Regulation S Global Certificate, in each
case, will be made in respect of such Certificates only following the delivery
by the Holder of a certification of non-U.S. beneficial ownership, at the times
and in the manner set forth in the Agreement.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
[Name of Transferor]
By:__________________________________
Name:
Title:
EXHIBIT B-4
FORM OF CLEARSTREAM CERTIFICATE
[Date]
HSBC Bank USA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Deutsche Alt-A Securities Trust 2005-2
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Deutsche Alt-A Securities, Inc., 2005-2
Re: Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Series
2005-2 Mortgage Pass-through Certificates, (the "Trust") Class
[B-3, B-4, B-5] Certificates (The "Certificates")
-------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing
Agreement (the "Agreement"), dated as of February 1, 2005, among Deutsche
Mortgage Securities, Inc. (the "Depositor"), ▇▇▇▇▇ Fargo Bank, N.A., as master
servicer and securities administrator (the "Master Servicer") and HSBC Bank USA,
as trustee (the "Trustee"). Capitalized terms used herein but not defined herein
shall have the meanings assigned thereto in the Agreement.
This is to certify that, based solely on certificates we have
received in writing, by tested telex or by electronic transmissions from member
organizations appearing in our records as persons being entitled to a portion of
the Certificates set forth below (our "Member Organizations"), substantially to
the effect set forth in Annex A hereto, U.S. $________ certificate balance of
the above-captioned Certificates held by us or on our behalf are beneficially
owned by non-U.S.] person(s). As used in this paragraph, the term "U.S. person"
has the meaning given to it by Regulation S under the United States Securities
Act of 1933, as amended (the "Securities Act").
We further certify (i) that we are not making available
herewith for exchange any portion of the Temporary Regulation S Global
Certificates excepted in such certificates and (ii) that as of the date hereof
we have not received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organizations with respect to
any interest in the Certificates identified above are no longer true and cannot
be relied upon as of the date hereof. We understand that this certification is
required in connection with certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with this certificate is or would be relevant, we
irrevocably authorized you to produce this certificate to any interested party
in such proceedings.
Yours faithfully,
[[Insert Name of Depositary for
Euroclear], as operator of the
Euroclear system]
or
[CLEARSTREAM, SOCIETE ANONYME]
By:___________________________________
ANNEX A TO EXHIBIT B-4
----------------------
FORM OF MEMBER ORGANIZATION CERTIFICATE
[(Insert Name of Depositary for
Euroclear), as operator of the
Euroclear system or Clearstream, societe anonyme]
Re: Deutsche Alt-A Securities, Inc. Mortgage Loan Trust, Series
2005-2 Mortgage Pass-through Certificates, (the "Trust") Class
[B-3, B-4, B-5] Certificates (The "Certificates")
-------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing
Agreement (the "Agreement"), dated as of February 1, 2005, among Deutsche
Mortgage Securities, Inc. (the "Depositor"), ▇▇▇▇▇ Fargo Bank , N.A., as master
servicer and securities administrator (the "Master Servicer") and HSBC Bank USA,
as trustee (the "Trustee"). Capitalized terms used herein but not defined herein
shall have the meanings assigned thereto in the Agreement.
This is to certify that, as of the date hereof and except as
set forth below, the Certificates held by you for our account [except $
________________ of such beneficial interest in such Certificates in respect of
which we are not able to certify and as to which we understand the exercise of
any rights to payments thereon or the exchange for Permanent Regulation S Global
Certificates cannot be made until we do so certify,] are beneficially owned by
non-U.S. persons. As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Certificates held by you for our account in accordance with your documented
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this certificate
applies as of such date.
Dated: ____________, 200__(1)
Faithfully,
[Name of Person giving the certificate]
------------------
(1) To be dated no earlier than 15 days prior to the event to which the
certification relates.
EXHIBIT C
FORM OF TRANSFER AFFIDAVIT
Affidavit pursuant to Section
860E(e)(4) of the Internal Revenue
Code of 1986 as amended and for other
purposes
STATE OF )
)ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he/she is [Title of Officer] of [Name of Investor]
(the "Investor"), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of _____] [the United States], on behalf
of which he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization"
as defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as
amended (the "Code"), and will not be a disqualified organization as of [Closing
Date] [date of purchase]; (ii) it is not acquiring the Deutsche Alt-A
Securities, Inc. Mortgage Loan Trust, Series 2005-2 Mortgage Pass-Through
Certificates, Class R Certificates (the "Residual Certificates") for the account
of a disqualified organization; (iii) it consents to any amendment of the
Pooling and Servicing Agreement that shall be deemed necessary by Deutsche Alt-A
Securities, Inc. (upon advice of counsel) to constitute a reasonable arrangement
to ensure that the Residual Certificates will not be owned directly or
indirectly by a disqualified organization; and (iv) it will not transfer such
Residual Certificates unless (a) it has received from the transferee an
affidavit in substantially the same form as this affidavit containing these same
four representations and (b) as of the time of the transfer, it does not have
actual knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or
resident of the United States, (ii) a corporation or partnership (including an
entity treated as a corporation or partnership for federal income tax purposes)
created or organized in, or under the laws of, the United States or any state
thereof or the District of Columbia (except, in the case of a partnership, to
the extent provided in regulations), provided that no partnership or other
entity treated as a partnership for United States federal income tax purposes
shall be treated as a United States Person unless all persons that own an
interest in such partnership either directly or through any entity that is not a
corporation for United States federal income tax purposes are United States
Persons, (iii) an estate whose income is subject to United States federal income
tax regardless of its source, or (iv) a trust other than a "foreign trust," as
defined in Section 7701 (a)(31) of the Code.
4. That the Investor's taxpayer identification number is
________________.
5. That no purpose of the acquisition of the Residual
Certificates is to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the
Residual Certificates, the Investor may incur tax liabilities in excess of any
cash flows generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with
holding the Residual Certificates as they become due.
8. The Investor has provided the Securities Administrator with
an opinion of counsel on which the Trustee, the Depositor, the Master Servicer
and the Securities Administrator may rely, acceptable to and in form and
substance satisfactory to the Trustee to the effect that the purchase of
Certificates is permissible under applicable law, will not constitute or result
in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code
and will not subject the Trust Fund, the Trustee, the Depositor, the Master
Servicer or the Securities Administrator to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Investor has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors, by
its [Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By:__________________________________
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt
of distributions]
Address of Investor
for receipt of tax information:
Personally appeared before me the above-named [Name of
Officer], known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Investor, and acknowledged to
me that he/she executed the same as his/her free act and deed and the free act
and deed of the Investor.
Subscribed and sworn before me this ___ day of _________,
20___.
NOTARY PUBLIC
STATE OF )
)ss:
COUNTY OF )
My commission expires the ___ day of ___________________, 20___.
SCHEDULE 1
LOAN SCHEDULE
SCHEDULE 2
PREPAYMENT CHARGE SCHEDULE
FILED BY PAPER
SCHEDULE 3
SERVICING ADVANCES INCURRED PRIOR TO CUT-OFF DATE
None.