EXHIBIT 4.1
===========================================
DEUTSCHE FINANCIAL CAPITAL SECURITIZATION LLC,
OAKWOOD ACCEPTANCE CORPORATION
AND
[ ]
TRUSTEE
----------
SERIES 19__-__ POOLING AND SERVICING AGREEMENT
DATED AS OF ________ ___, 19___
----------
DEUTSCHE FINANCIAL CAPITAL SECURITIZATION LLC,
SENIOR/SUBORDINATED
PASS-THROUGH CERTIFICATES, SERIES 19___-___
===========================================
S - 1
FORM OF POOLING & SERVICING AGREEMENT
THIS SERIES 19___-___ POOLING AND SERVICING AGREEMENT, dated as of
______________ 1, 19___, is made with respect to the formation of DFCS Trust
19___-___ (the "Trust") among DEUTSCHE FINANCIAL CAPITAL SECURITIZATION LLC, a
North Carolina limited liability company (the "Company"), OAKWOOD ACCEPTANCE
CORPORATION, a North Carolina corporation ("OAC" and, in its capacity as
servicer, the "Servicer"), and [_________________________________], a national
banking association, as trustee (the "Trustee"), under this Agreement and the
Standard Terms to Pooling and Servicing Agreement, March 1997 Edition (the
"Standard Terms"), all the provisions of which are incorporated herein as
modified hereby and shall be a part of this Agreement as if set forth herein in
full (this Agreement with the Standard Terms so incorporated, the "Pooling and
Servicing Agreement"). Capitalized terms used and not otherwise defined herein
shall have the respective meanings given them in the Standard Terms.
PRELIMINARY STATEMENT
The Company has duly authorized the formation of the Trust to issue a
Series of Certificates with an aggregate initial principal amount of
$[___________], to be known as the Senior/Subordinated Pass-Through
Certificates, Series 19___-___ (the "Certificates"). The Certificates consist of
___ Classes that in the aggregate evidence the entire beneficial ownership
interest in the Trust.
In accordance with Section 10.01 of the Standard Terms, the Trustee
will make an election to treat all of the assets of the Trust as [two] real
estate mortgage investment conduits (each, a "REMIC" and, individually, the
"Pooling REMIC" and the "Issuing REMIC") for federal income tax purposes. The
Pooling REMIC will consist of the Distribution Account and the Assets listed on
the Asset Schedule attached as Schedule I (as defined below) hereto. The Issuing
REMIC will consist of the [________] Subaccounts designated as provided herein,
the Class [_____] Liquidity Account and the Class [_______] Liquidity Account.
The "startup day" of each REMIC for purposes of the REMIC Provisions is the
Closing Date.
GRANTING CLAUSES
To provide for the distribution of the principal of and interest on the
Certificates in accordance with their terms, all of the sums distributable under
the Pooling and Servicing Agreement with respect to the Certificates and the
performance of the covenants contained in this Pooling and Servicing Agreement,
the Company hereby bargains, sells, conveys, assigns and transfers to the
Trustee, in trust and as provided in this Pooling and Servicing Agreement,
without recourse and for the exclusive benefit of the Holders of the
Certificates, all of the Company's right, title and interest in and to, and any
and all benefits accruing to the Company from, (a) the Contracts listed in
Schedule IA hereto and the Mortgage Loans (together with the Contracts, the
"Assets") listed in Schedule IB hereto (Schedule IA and Schedule IB shall be
collectively referred to herein as "Schedule I"), together with the related
Asset Documents, and all payments thereon and proceeds of the conversion,
voluntary or involuntary, of the foregoing,
S - 2
FORM OF POOLING & SERVICING AGREEMENT
including, without limitation, all rights to receive all principal and interest
payments due on the Assets after the Cut-off Date, including such scheduled
payments received by the Company or Seller on or prior to the Cut-off Date, and
Principal Prepayments, Net Insurance Proceeds, Net Liquidation Proceeds,
Repurchase Prices and other unscheduled collections received on the Assets on
and after the Cut-off Date; (b) the security interests in the Manufactured
Homes, Mortgaged Properties and Real Properties granted by the Obligors pursuant
to the related Assets; (c) all funds, other than investment earnings, relating
to the Assets on deposit in the Certificate Account or the Distribution Account
for the Certificates and all proceeds thereof, whether in the form of cash,
instruments, securities or other properties; (d) the Class _________ Liquidity
Account, the Class _______ Liquidity Account and all amounts on deposit in each;
(e) any and all rights, privileges and benefits accruing to the Company under
the Sales Agreement with respect to the Assets (provided that the Company shall
retain its rights to indemnification from the Seller under such Sales Agreement,
but also hereby conveys its rights to such indemnification to the Trustee as its
assignee), including the rights and remedies with respect to the enforcement of
any and all representations, warranties and covenants under such Sales
Agreement; and (f) proceeds of all the foregoing (including, but not by way of
limitation, all proceeds of any Standard Hazard Insurance Policy or FHA
Insurance, or any other insurance policy relating to any of the Assets, cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, rights to payment of any and every kind, and
other forms of obligations and receivables that at any time constitute all or
part or are included in the proceeds of any of the foregoing) to make
distributions on the Certificates as specified herein (the items referred to in
clauses (a) through (f) above shall be collectively referred to herein as the
"Trust Estate").
The Trustee acknowledges the foregoing, accepts the trusts hereunder in
accordance with the provisions hereof and the Standard Terms and agrees to
perform the duties herein or therein required to the best of its ability to the
end that the interests of the Holders of the Certificates may be adequately and
effectively protected.
SECTION 1. STANDARD TERMS.
The Company, the Servicer and the Trustee acknowledge that the Standard
Terms prescribe certain obligations of the Company, the Servicer and the Trustee
with respect to the Certificates. The Company, the Servicer and the Trustee
agree to observe and perform such prescribed duties, responsibilities and
obligations, and acknowledge that, except to the extent inconsistent with the
provisions of this Pooling and Servicing Agreement, the Standard Terms are and
shall be a part of this Pooling and Servicing Agreement to the same extent as if
set forth herein in full.
SECTION 2DEFINED TERMS.
With respect to the Certificates and in addition to or in replacement
for the definitions set forth in Section 1.01 of the Standard Terms, the
following definitions shall be assigned to the defined terms set forth below:
S - 3
FORM OF POOLING & SERVICING AGREEMENT
"Accrual Date": The Accrual Date (i) with respect to the Class [LIBOR]
Certificates shall be the Closing Date and (ii) with respect to all other
Classes of Certificates shall be __________ 1, 19___.
"Adjusted Certificate Principal Balance": With respect to each Class of
Offered Subordinated Certificates on any date of determination, its Certificate
Principal Balance immediately following the most recently preceding Distribution
Date reduced by all Writedown Amounts allocated to such Class on such
Distribution Date.
"Adjusted Subaccount Principal Balance": With respect to each of the
Corresponding Subaccounts relating to the Offered Subordinated Certificates, on
any date of determination, its Subaccount Principal Balance immediately
following the most recently preceding Distribution Date reduced by all Writedown
Amounts allocated to such Subaccount on such Distribution Date.
"Average Sixty-Day Delinquency Ratio": With respect to any Distribution
Date, the arithmetic average of the Sixty-Day Delinquency Ratios for such
Distribution Date and the two preceding Distribution Dates. The "Sixty-Day
Delinquency Ratio" for a Distribution Date is the percentage derived from the
fraction, the numerator of which is the aggregate Scheduled Principal Balance
(as of the end of the preceding Prepayment Period) of all Assets (including
Assets in respect of which the related Manufactured Home, Real Property or
Mortgage Property has been repossessed or foreclosed upon but not yet disposed
of) as to which a Monthly Payment thereon is delinquent 60 days or more as of
the end of the related Collection Period, and the denominator of which is the
Pool Scheduled Principal Balance for such Distribution Date.
"Average Thirty-Day Delinquency Ratio": With respect to any
Distribution Date, the arithmetic average of the Thirty-Day Delinquency Ratios
for such Distribution Date and the two preceding Distribution Dates. The
"Thirty-Day Delinquency Ratio" for a Distribution Date is the percentage derived
from the fraction, the numerator of which is the aggregate Scheduled Principal
Balance (as of the end of the preceding Prepayment Period) of all Assets
(including Assets in respect of which the related Manufactured Home, Real
Property or Mortgage Property has been repossessed or foreclosed upon but not
yet disposed of) as to which a Monthly Payment thereon is delinquent 30 days or
more as of the end of the related Collection Period, and the denominator of
which is the Pool Scheduled Principal Balance for such Distribution Date.
"Book-Entry Certificates": The Class A and Class B Certificates.
"Carryover Interest Amount": With respect to each Class of
Certificates, except the Class X Certificates and the Residual Certificates, and
each Distribution Date, all amounts that were distributable on such Class as
Interest Distribution Amounts on previous Distribution Dates that remain unpaid,
together with interest on each overdue Interest Distribution Amount that
comprises the Carryover Interest Amount at the Pass-Through Rate in effect for
such Class from time to time from the last day of the Interest Accrual Period in
which such overdue Interest Distribution Amount accrued through the last day of
the related Interest Accrual Period, to the extent not previously distributed.
With respect to each Subaccount on each Distribution Date,
S - 4
FORM OF POOLING & SERVICING AGREEMENT
all amounts that were allocable to such Subaccount as Priority Interest Amounts
on previous Distribution Dates that remain unpaid, together with interest on
each overdue Priority Interest Amount that comprises the Carryover Interest
Amount at the applicable Pass-Through Rate in effect for the Corresponding
Certificates with respect to such Subaccount from time to time from the last day
of the Interest Accrual Period in which such overdue Priority Interest Amount
accrued through the last day of the related Interest Accrual Period, to the
extent not previously distributed.
"Carryover Non-Priority Interest Amount": For any Subaccount, on any
Distribution Date, all amounts that were distributable on such Subaccount as
Non-Priority Interest Amounts on previous Distribution Dates that remain unpaid.
"Carryover Writedown Interest Amount": With respect to each
Distribution Date and each related Class or Subaccount, Writedown Interest
Amounts remaining unpaid from previous Distribution Dates.
"Class A Certificates": The Class A-__ Certificates, Class A-__
Certificates, Class A-__ Certificates, Class A-__ Certificates, Class A-__
Certificates and Class A-__ Certificates.
"Class A Percentage": With respect to each Distribution Date, generally
the percentage derived from the fraction (which shall not be greater than 1),
the numerator of which is the aggregate Certificate Principal Balance of the
Class A Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate Certificate Principal Balance of all the
Certificates immediately prior to such Distribution Date; PROVIDED, HOWEVER,
that if (z) the percentage derived from the fraction (which shall not be greater
than 1), the numerator of which is the Class B Principal Balance immediately
prior to such Distribution Date and the denominator of which is the sum of the
Class A Principal Balance and the Class B Principal Balance, each immediately
prior to such Distribution Date, is greater than (y) the percentage derived from
the fraction (which shall not be greater than 1), the numerator of which is the
Class B Principal Balance immediately prior to such Distribution Date less the
Class B-2 Floor Amount for such Distribution Date, and the denominator of which
is the Principal Distribution Amount for such Distribution Date, then the Class
A Percentage for such Distribution Date shall equal the lesser of (x) the
percentage derived from the fraction (which shall not be greater than 1), the
numerator of which is the Class A Principal Balance immediately prior to such
Distribution Date and the denominator of which is the Principal Distribution
Amount for such Distribution Date, and (w) 100% less the percentage derived from
the fraction (which shall not be greater than 1), the numerator of which is the
Class B Principal Balance immediately prior to such Distribution Date less the
Class B-2 Floor Amount for such Distribution Date, and the denominator of which
is the Principal Distribution Amount for such Distribution Date. The "Class A
Principal Balance" and "Class B Principal Balance" will be based on the
Certificate Principal Balance of the Certificates.
"Class A-___ Liquidity Account": The fund established pursuant to
Section 6(a) hereof and to be applied specifically to the Class A-___
Certificates. The Class A-___ Liquidity Account shall be deemed to be a "Reserve
Fund" as such term is defined in the Standard Terms.
S - 5
FORM OF POOLING & SERVICING AGREEMENT
"Class A-__ Liquidity Account Draw Amount": On any Distribution Date,
the lesser of (i) the amount on deposit in the Class A-___ Liquidity Account,
and (ii) the aggregate amount of any Interest Distribution Amounts, Carryover
Interest Amounts, Writedown Amounts and Carryover Writedown Interest Amounts due
on the Class A-___ Certificates that are not distributed out of the Available
Distribution for such Distribution Date.
"Class A-___ Liquidity Account Required Amount": On any Distribution
Date, three months of interest at the Class A-___ Pass-Through Rate on the Class
A-___ Certificate Principal Balance after giving effect to principal
distributions on such Distribution Date.
"Class A Subaccounts": Any or all, as appropriate, of the Class A-___,
Class A-___, Class A-___, Class A-___, Class A-___ or Class A-___ Subaccounts.
"Class B Certificates": The Class B-___ Certificates and Class B-___
Certificates.
"Class B-__ Liquidity Account": The fund established pursuant to
Section 6(b) hereof and to be applied specifically to the Class B-__
Certificates. The Class B-__ Liquidity Account shall be deemed to be a "Reserve
Fund" as such term is defined in the Standard Terms.
"Class B-__ Liquidity Account Draw Amount": On any Distribution Date,
the lesser of (i) the amount on deposit in the Class B-__ Liquidity Account, and
(ii) the aggregate amount of any Interest Distribution Amounts, Carryover
Interest Amounts, Writedown Interest Amounts and Carryover Writedown Interest
Amounts due on the Class B-__ Certificates that are not distributed out of the
Available Distribution for such Distribution Date.
"Class B-__ Liquidity Account Required Amount": On any Distribution
Date, three months of interest at the Class B-__ Pass-Through Rate on the Class
B-__ Certificate Principal Balance after giving effect to principal
distributions on such Distribution Date.
"Class B-__ Floor Amount": With respect to any Distribution Date,
either (a) 1.50% of the aggregate principal balance of the Assets as of the
Cut-off Date, if the Class A-__ Certificate Principal Balance has not been
reduced to zero immediately prior to such Distribution Date, and (b) zero, if
the Class A-__ Certificate Principal Balance has been reduced to zero
immediately prior to such Distribution Date.
"Class B Cross-over Date": The later to occur of (a) the Distribution
Date occurring in _________ 20__ or (b) the first Distribution Date on which the
Class B Percentage equals or exceeds 1.75 times the initial Class B Percentage.
"Class B Percentage": With respect to each Distribution Date, the
difference between 100% and the Class A Percentage for such Distribution Date.
"Class B Principal Distribution Tests": With respect to each
Distribution Date: (a) the Average Sixty-Day Delinquency Ratio as of such
Distribution Date does not exceed 5%; (b) the Average Thirty-Day Delinquency
Ratio as of such Distribution Date does not exceed 7%; (c)
S - 6
FORM OF POOLING & SERVICING AGREEMENT
the Cumulative Realized Losses as of such Distribution Date do not exceed an
amount equal to the percentage set forth below of the initial aggregate
Certificate Principal Balance of all the Certificates:
Distribution Dates Percentage
_________ 20__ through ________ 20__ 7%
_________ 20__ through ________ 20__ 8%
_________ 20__ through and after 9%
; and (d) the Current Realized Loss Ratio as of such Distribution Date does not
exceed 2.75%.
"Class B Subaccounts": Any or all, as appropriate, of the Class B-___
or Class B-___ Subaccounts.
"Class R Certificates": The Class R Certificates, which comprise both
the Pooling REMIC Residual Interest and the Issuing REMIC Residual Interest.
"Class R-1 Certificates": Following the division of the Class R
Certificates into two separately transferable, certificated and fully registered
certificates in accordance with Section 10(b) hereof, the Class R-1
Certificates, which will represent the Issuing REMIC Residual Interest.
"Class R-2 Certificates": Following the division of the Class R
Certificates into two separately transferable, certificated and fully registered
certificates in accordance with Section 10(b) hereof, the Class R-2
Certificates, which will represent the Pooling REMIC Residual Interest.
"Class X Carryover Strip Amount": With respect to the Class X
Certificates on each Distribution Date, all amounts that were distributable on
such Class as Class X Strip Amounts on previous Distribution Dates that remain
unpaid.
"Class X Certificates": The Class X Certificates created pursuant to
Section 3 hereof.
"Class X Strip Amount": With respect to any Distribution Date, 30 days
interest on the aggregate Certificate Principal Balance of the Class A
Certificates and the Class B Certificates at a rate equal to the difference, if
any, between the Weighted Average Net Asset Rate and the weighted average of the
Pass-Through Rates on the Class A Certificates and the Class B Certificates.
"Closing Date": _____________ ___, 19___.
"Corporate Trust Office": The address set forth hereinbelow under
"Trustee".
S - 7
FORM OF POOLING & SERVICING AGREEMENT
"Corresponding Certificates": For any Subaccount, the Class of
Certificates bearing the same letter and numerical designation as that borne by
such Subaccount.
"Corresponding Subaccount" For any Class of Certificates, the
Subaccount bearing the same letter and numerical designation as that borne by
such Class.
"Cumulative Realized Losses": With respect to any Distribution Date,
the aggregate Realized Losses incurred on the Assets during the period from the
Cut-off Date through the end of the related Prepayment Period.
"Current Realized Loss Ratio": With respect to any Distribution Date,
the annualized percentage derived from the fraction, the numerator of which is
the sum of the aggregate Realized Losses for the three preceding Prepayment
Periods and the denominator of which is the arithmetic average of the Pool
Scheduled Principal Balances for such Distribution Date and the preceding two
Distribution Dates.
"Cut-off Date": _______________ 1, 19___.
"ERISA Restricted Certificates": The Class A-___, Class B-___, Class
B-___, Class X and Class R Certificates.
"Floating Rate Determination Date": For any Interest Accrual Period for
the Class [LIBOR] Certificates, the second London Banking Day prior to the
commencement of such Interest Accrual Period.
"Guarantor": Oakwood Homes.
"Institutional Holder": An insurance company whose long-term debt is
rated at least A - by a Rating Agency, or an equivalent rating from any other
nationally recognized statistical rating organization.
"Interest Distribution Amount": On each Distribution Date, an amount
equal to interest accrued at the applicable Pass-Through Rate for the related
Interest Accrual Period on (i) in the case of the Senior Certificates or the
Senior Subaccounts, the Certificate Principal Balance of such Class or the
Subaccount Principal Balance of such Subaccount, respectively, immediately prior
to that Distribution Date and (ii) in the case of the Offered Subordinated
Certificates or the Corresponding Subaccounts, on the Adjusted Certificate
Principal Balance of such Class or the Subaccount Principal Balance of such
Subaccount, respectively, immediately prior to that Distribution Date.
"Issuing REMIC": The Trust REMIC consisting of the Subaccounts, the
Class A-__ Liquidity Account and the Class B-___ Liquidity Account.
"Issuing REMIC Residual Interest": The residual interest (as defined in
Code section 860G(a)(2)) in the Issuing REMIC.
S - 8
FORM OF POOLING & SERVICING AGREEMENT
"Limited Guarantee": The Limited Guarantee by the Guarantor dated as of
___________ 1, 19___, for the benefit of the Trustee, of Limited Guarantee
Payment Amounts.
"Limited Guarantee Payment Amount": With respect to any Distribution
Date, the amount after giving effect to the allocation of the Available
Distribution for such date, equal to the amount of shortfalls otherwise
distributable on such Distribution Date not in excess of the sum of (a) any
unpaid Interest Distribution Amount, Carryover Interest Amount, Writedown
Interest Distribution Amount and Carryover Writedown Interest Distribution
Amount distributable on such Distribution Date pursuant to clauses (iv) and
(xiii) of Section 5(b) hereof and (b) any unpaid principal amounts payable on
such Distribution Date pursuant to clauses (xiv) and (xv) under Section 5(b)
hereof.
"London Banking Day": Any day on which commercial banks and foreign
exchange markets settle payments in London and New York City.
"Non-Priority Interest Amount": For any Subaccount, on any Distribution
Date, an amount equal to the positive difference, if any, between (i) the
related Interest Distribution Amount for such Subaccount and (ii) the related
Priority Interest Amount for such Subaccount.
"Notional Principal Balance": The Notional Principal Balance of the
Class X Certificates on any date shall equal the sum of all of the Subaccount
Principal Balances on such date.
"Oakwood Homes": Oakwood Homes Corporation, a North Carolina
corporation.
"Offered Subordinated Certificates": The Class A-___ and Class B
Certificates.
"Pass-Through Rate": With respect to each Class of Certificates (except
the Class X Certificates and the Residual Certificates) on any Distribution
Date, the per annum rate for such Class set forth in the table in Section 3
hereof. With respect to any Subaccount on any Distribution Date, the then
applicable Weighted Average Net Asset Rate.
"Pooling REMIC": The Trust REMIC consisting of the Assets and the
Distribution Account.
"Pooling REMIC Residual Interest": The residual interest (as defined in
Code section 860G(a)(2)) in the Pooling REMIC.
"Principal Distribution Shortfall Carryover Amount": With respect to
each Distribution Date and each Class of Certificates, an amount equal to all
Principal Distribution Amounts distributable on such Class from previous
Distribution Dates that have not yet been distributed on such Class of
Certificates. With respect to each Distribution Date and each Corresponding
Subaccount, an amount equal to all Principal Distribution Amounts distributable
on the Corresponding Certificates from previous Distribution Dates that have not
yet been distributed on such Corresponding Certificates.
S - 9
FORM OF POOLING & SERVICING AGREEMENT
"Priority Interest Amount": For any Subaccount, on any Distribution
Date, an amount equal to interest accrued at the applicable Pass-Through Rate
for the related Interest Accrual Period on the Corresponding Certificates.
"Private Certificates": The Class X Certificates and Residual
Certificates.
"Qualified Bidders": Firms and institutions that are engaged in the
business of buying and selling manufactured housing paper.
"Rating Agency": Each of [Rating Agency], [Address], and [Rating
Agency], [Address].
"Regular Certificates": The Class A Certificates, Class B Certificates
and Class X Certificates.
"Residual Certificates": The Class R Certificates or, following the
division of the Class R Certificates into two separately transferable,
certificated and fully registered certificates in accordance with Section 10(b)
hereof, the Class R-1 Certificates and Class R-2 Certificates.
"Rule 144A Certificates": The Class X and Residual Certificates.
"Senior Certificates": The Class A-__, Class A-__, Class A-__, Class
A-__ and Class A-__ Certificates.
"Senior Subaccounts": The Class A-__, Class A-__, Class A-__, Class
A-__ and Class A-__ Subaccounts.
"Servicing Fee Rate": 1.00% per annum.
"Subaccount": Each of the following eight subaccounts established
solely for purposes of the REMIC Provisions by the Trustee, which have the
Pass-Through Rates and initial Subaccount Principal Balances set forth below:
S - 10
FORM OF POOLING & SERVICING AGREEMENT
INITIAL
PASS-THROUGH SUBACCOUNT
SUBACCOUNT RATE PRINCIPAL BALANCE
---------- ---- -----------------
A-__ (1) $__________
A-__ (1) $__________
A-__ (1) $__________
A-__ (1) $__________
A-__ (1) $__________
A-__ (1) $__________
B-__ (1) $__________
B-__ (1) $_________
(1) The Pass-Through Rate on each Subaccount for any
Distribution Date shall be equal to the Weighted Average Net Asset
Rate.
The final scheduled Distribution Date for each Subaccount is the
____________ 20___ Distribution Date. For purposes of Treasury Regulation
ss.1.860G-1(a)(4), the latest possible maturity date for each of the Subaccounts
shall be the _________ 20____ Distribution Date.
"Subaccount Principal Balance": With respect to each Subaccount, on any
date of determination, the amount identified as the "Initial Subaccount
Principal Balance" of such Subaccount in the definition of "Subaccount" above,
minus all amounts allocated to such Subaccount in reduction of its Subaccount
Principal Balance pursuant to Sections 5(a) and 7 hereof.
"Subordinated Certificates": The Class A-___, Class B-___, Class B-___,
Class X and Residual Certificates.
"Trustee": [ ], not in its individual capacity but solely as Trustee
under this Pooling and Servicing Agreement, or any successor trustee appointed
as herein provided. Notices to the Trustee shall be sent to Corporate Trust
Department, [Address], Attn: DFCS Trust 19___-___ (the "Corporate Trust
Office"), or its successor in interest.
"Trust REMIC": Each of the Pooling REMIC and the Issuing REMIC.
"Underwriters": ______________________________ (whose address is
_____________________________________), and ____________________ (whose address
is ------------------------------------).
"Weighted Average Net Asset Rate": With respect to any Distribution
Date, the weighted average of the Asset Rates applicable to the Monthly Payments
that were due during the related Collection Period on Assets that were
Outstanding at the beginning of the related Prepayment Period, less the
Servicing Fee Rate.
S - 11
FORM OF POOLING & SERVICING AGREEMENT
"Writedown Amount": With respect to each Distribution Date, the amount,
if any, by which (i) the aggregate Certificate Principal Balance of all the
Certificates, after all distributions have been made on the Certificates on such
Distribution Date pursuant to Section 5(b) hereof, exceeds (ii) the Pool
Scheduled Principal Balance of the Assets for the next Distribution Date.
"Writedown Interest Amount": With respect to each Distribution Date and
each Class of Subordinated Certificates, interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on any related
Writedown Amount. With respect to each Distribution Date and each Corresponding
Subaccount, interest accrued during the related Interest Accrual Period on any
related Writedown Amount at the Pass-Through Rate applicable to the
Corresponding Certificates.
SECTION 3. CERTIFICATES.
The aggregate initial principal amount of Certificates that may be
executed and delivered under this Pooling and Servicing Agreement is limited to
$___________, except for Certificates executed and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Certificates pursuant
to Sections 5.04 or 5.07 of the Standard Terms. The Certificates shall be issued
in ten Classes having the designations, initial Certificate Principal Balances,
Pass-Through Rates and Final Scheduled Distribution Dates set forth or described
below:
INITIAL FINAL
CERTIFICATE SCHEDULED
PRINCIPAL PASS THROUGH DISTRIBUTION
DESIGNATION BALANCE RATE DATE(7)
A-__ $__________ (1) ________ 15, 20__
A-__ $__________ _____% ________ 15, 20__
A-__ $__________ _____% ________ 15, 20__
A-__ $__________ _____% ________ 15, 20__
A-__ $__________ _____% ________ 15, 20__
A-__ $__________ (2) ________ 15, 20__
B-__ $__________ (3) ________ 15, 20__
B-__ $__________ (4) ________ 15, 20__
X (5) (5) ________ 15, 20__
R (6) (6) ________ 15, 20__
(1) The Pass-Through Rate on the Class A-__ Certificates for
any Distribution Date shall be the per annum rate equal to the lesser
of One-Month LIBOR, as determined (except for the initial Distribution
Date) on the applicable Floating Rate Determination Date, plus ______%
or the Weighted Average Net Asset Rate. For the initial Distribution
Date, the Pass-Through Rate for the Class A-__ Certificates will be
______% per annum, and the initial Interest Accrual Period for the
Class A-__ Certificates commences on the Closing Date and ends on
_________ 14, 19___.
S - 12
FORM OF POOLING & SERVICING AGREEMENT
(2) The Pass-Through Rate on the Class A-___ Certificates for
any Distribution Date shall be equal to the lesser of (i) ______% per
annum or (ii) the Weighted Average Net Asset Rate.
(3) The Pass-Through Rate on the Class B-__ Certificates for
any Distribution Date shall be equal to the lesser of (i) _____% per
annum or (ii) the Weighted Average Net Asset Rate.
(4) The Pass-Through Rate on the Class B-___ Certificates for
any Distribution Date shall be equal to the lesser of (i) _______% per
annum or (ii) the Weighted Average Net Asset Rate.
(5) The Class X Certificates shall have no Certificate
Principal Balance and no Pass-Through Rate. The Class X Certificates
will represent the right to receive, on each Distribution Date, the
applicable Class X Strip Amount and any Class X Carryover Strip Amount.
(6) The Class R Certificates shall have no Certificate
Principal Balance and no Pass-Through Rate, and shall represent the
residual interest in both the Pooling REMIC and the Issuing REMIC.
Following the division of the Class R Certificates into two separately
transferable, certificated and fully registered certificates in
accordance with Section 10(b) hereof, the Class R-1 and Class R-2
Certificates shall have no Certificate Principal Balances and no
Pass-Through Rates and shall represent the residual interest in the
Issuing REMIC and the Pooling REMIC, respectively.
(7) For purposes of Treasury Regulation ss.1.860G-1(a)(4), the
latest possible maturity date of each Class of Certificates shall be
the Final Scheduled Distribution Date.
SECTION 4. DENOMINATIONS.
The Book-Entry Certificates will be registered as one or more certificates
in the name of the Clearing Agency or its nominee. Beneficial interests in the
Book-Entry Certificates will be held by the Beneficial Owners through the
book-entry facilities of the Clearing Agency, in minimum denominations of
$25,000 and integral multiples of $1 in excess thereof.
The Class X Certificates and the Residual Certificates will be issued
in certificated, fully registered form. The Class X Certificates and the
Residual Certificates will be issued in minimum Percentage Interests equal to
10%.
SECTION 5. DISTRIBUTIONS.
(a) On each Distribution Date, the Trustee (or the Paying Agent on
behalf of the Trustee) shall allocate the Available Distribution to the various
Subaccounts, and, where applicable, OAC, to the extent of the amount thereof
remaining after application pursuant to clauses (1) through (4) of Section 4.03
of the Standard Terms, in the following manner and in the following order of
priority:
(i) First, concurrently, to each Senior Subaccount, (A) first,
its Priority Interest Amount for such Distribution Date, with the
Available Distribution being allocated among the Senior Subaccounts PRO
RATA based on their respective Priority Interest Amount, and (B)
second, the related Carryover Interest Amount for such Distribution
Date, if any, allocated first to pay all interest accrued and unpaid on
overdue Priority Interest Amounts and then to pay such overdue Priority
Interest Amounts, in each
S - 13
FORM OF POOLING & SERVICING AGREEMENT
case with the Available Distribution being allocated among the Senior
Subaccounts PRO RATA based on their respective Carryover Interest
Amounts;
(ii) Second, to the Class A-___ Subaccount, (A) first, the
related Priority Interest Amount for such Distribution Date, and (B)
second, any related Carryover Interest Amount for such Distribution
Date, allocated first to pay all interest accrued and unpaid on overdue
Priority Interest Amounts and then to pay such overdue Priority
Interest Amounts;
(iii) Third, to the Class B-__ Subaccount, (A) first, the
related Priority Interest Amount for such Distribution Date, and (B)
second, any related Carryover Interest Amount for such Distribution
Date, allocated first to pay all interest accrued and unpaid on overdue
Priority Interest Amounts and then to pay such overdue Priority
Interest Amounts;
(iv) Fourth, to the Class B-___ Subaccount, (A) first, the
related Priority Interest Amount for such Distribution Date, and (B)
second, any related Carryover Interest Amount for such Distribution
Date, allocated first to pay all interest accrued and unpaid on overdue
Priority Interest Amounts and then to pay such overdue Priority
Interest Amounts;
(v) Fifth, concurrently, to each Senior Subaccount, the
related Principal Distribution Shortfall Carryover Amount for the
Senior Subaccounts, if any, for such Distribution Date, allocated among
the Senior Subaccounts pro rata based on their respective Subaccount
Principal Balances;
(vi) Sixth, to the Senior Subaccounts, (A) if the Class B
Cross-over Date has not yet occurred or if the Class B Principal
Distribution Tests are not met for such Distribution Date, the
Principal Distribution Amount, or (B) if the Class B Cross-over Date
has occurred and the Class B Principal Distribution Tests are met for
such Distribution Date, the Class A Percentage of the Principal
Distribution Amount, in either case allocated in the following
sequential order:
(1) First, to the Class A-___ Subaccount in reduction
of the Subaccount Principal Balance of such Subaccount, until
it has been reduced to zero;
(2) Second, to the Class A-___ Subaccount in
reduction of the Subaccount Principal Balance of such
Subaccount, until it has been reduced to zero;
(3) Third, to the Class A-___ Subaccount in reduction
of the Subaccount Principal Balance of such Subaccount, until
it has been reduced to zero;
(4) Fourth, to the Class A-___ Subaccount in
reduction of the Subaccount Principal Balance of such
Subaccount, until it has been reduced to zero; and
S - 14
FORM OF POOLING & SERVICING AGREEMENT
(5) Fifth, to the Class A-___ Subaccount in reduction
of the Subaccount Principal Balance of such Subaccount, until
it has been reduced to zero;
PROVIDED, HOWEVER, that on any Distribution Date on which the
Pool Scheduled Principal Balance is less than the aggregate
Subaccount Principal Balance of the Senior Subaccounts
immediately prior to such Distribution Date, the Principal
Distribution Amount or applicable percentage thereof will be
allocated among the Senior Subaccounts PRO RATA based upon
their respective Subaccount Principal Balances;
(vii) Seventh, to the Class A-___ Subaccount, (A) first, any
related Writedown Interest Amount for such Distribution Date, and (B)
second, any related Carryover Writedown Interest Amount for such
Distribution Date;
(viii) Eighth, to the Class A-___ Subaccount, the related
Principal Distribution Shortfall Carryover Amount for the Class A-___
Subaccount, if any, for such Distribution Date;
(ix) Ninth, to the Class A-___ Subaccount, (A) if the Class B
Cross-over Date has not yet occurred or if the Class B Distribution
Tests are not met for such Distribution Date, the Principal
Distribution Amount, or (B) if the Class B Cross-over Date has occurred
and the Class B Distribution Tests are met for such Distribution Date
the Class A Percentage of the Principal Distribution Amount (in the
case of (A) or (B), less the portion thereof, if any, distributable
pursuant to clause (vi) above on such Distribution Date);
(x) Tenth, to the Class B-___ Subaccount, (A) first, any
related Writedown Interest Amount for such Distribution Date, and (B)
second, any related Carryover Writedown Interest Amount for such
Distribution Date;
(xi) Eleventh, to the Class B-___ Subaccount, the related
Principal Distribution Shortfall Carryover Amount for the Class B-___
Subaccount, if any, for such Distribution Date;
(xii) Twelfth, to the Class B-___ Subaccount, (A) if the Class
B Cross-over Date has occurred and the Class B Principal Distribution
Tests are met for such Distribution Date, the Class B Percentage of the
Principal Distribution Amount; or (B) if the Class A Principal Balance
has been or is reduced to zero on or before such Distribution Date, the
entire Principal Distribution Amount (in the case of (A) or (B), less
the portion thereof, if any, distributable pursuant to clauses (vi) or
(ix) above);
(xiii) Thirteenth, to the Class B-___ Subaccount, (A) first,
any related Writedown Interest Amount for such Distribution Date, and
(B) second, any related Carryover Writedown Interest Amount for such
Distribution Date;
S - 15
FORM OF POOLING & SERVICING AGREEMENT
(xiv) Fourteenth, to the Class B-___ Subaccount, the related
Principal Distribution Shortfall Carryover Amount for the Class B-___
Subaccount, if any, for such Distribution Date;
(xv) Fifteenth, to the Class B-___ Subaccount, (A) if the
Class B Cross-over Date has occurred, the Class B Principal
Distribution Tests are met for such Distribution Date and the Class
B-___ Subaccount Principal Balance has been or is reduced to zero on or
before such Distribution Date, the Class B Percentage of the Principal
Distribution Amount or (B) if the Class A Principal Balance has been or
is reduced to zero on or before such Distribution Date and the Class
B-___ Subaccount Principal Balance has been or is reduced to zero on or
before such Distribution Date, the entire Principal Distribution Amount
(in the case of (A) or (B), less the portion thereof, if any,
distributable pursuant to clauses (vi), (ix) or (xii) above); PROVIDED,
HOWEVER, if the Class A-___ Subaccount Principal Balance has not been
reduced to zero on or prior to such Distribution Date, then amounts
distributable pursuant to this clause (xv) shall be allocated solely to
the Class A- ___ Subaccount to the extent that allocation of such
amounts to the Class B-___ Subaccount would reduce the Class B-___
Subaccount Principal Balance below the Class B-___ Floor Amount;
(xvi) Sixteenth, to each Subaccount, (i) first, its Carryover
Non-Priority Interest Amount for such Distribution Date and (ii)
second, its Non-Priority Interest Amount for such Distribution Date, in
each case with the Available Distribution being allocated among the
Subaccounts pro rata based upon their respective Subaccount Principal
Balances; provided, however, that the aggregate amount allocated
pursuant to this clause (xvi) shall not exceed the amounts deposited to
the Class A-___ Liquidity Account and the Class B-___ Liquidity Account
pursuant to clause (xvi) of Section 5(b) hereof;
(xvii) Seventeenth, if OAC is the Servicer, to the Servicer in
the following sequential order: (A) the Servicing Fee with respect to
such Distribution Date; and (B) any Servicing Fees from previous
Distribution Dates remaining unpaid;
(xviii) Eighteenth, to each Subaccount, (i) first, to the
extent not allocated pursuant to clause (xvi) of this Section 5(a), its
Carryover Non-Priority Interest Amount for such Distribution Date and
(ii) second, to the extent not allocated pursuant to clause (xvi) of
this Section 5(a), its Non-Priority Interest Amount for such
Distribution Date, in each case with the Available Distribution being
allocated among the Subaccounts pro rata based upon their respective
Subaccount Balances; and
(xix) Nineteenth, any remainder to Holders of the Pooling
REMIC Residual Interest.
(b) On each Distribution Date, after all Subaccount allocations have
been made as described in Section 5(a) above and Section 6 below, the Trustee
(or the Paying Agent on behalf of the Trustee) shall withdraw all amounts
allocated to the various Subaccounts, and shall distribute such amounts in the
following manner and in the following order of priority:
S - 16
FORM OF POOLING & SERVICING AGREEMENT
(i) First, concurrently, to each Class of Senior Certificates,
(A) first, its Interest Distribution Amount for such Distribution Date,
with the Available Distribution being allocated among such Classes PRO
RATA based on their respective Interest Distribution Amounts, and (B)
second, the related Carryover Interest Amount, if any, for such
Distribution Date allocated first to pay all interest accrued and
unpaid on overdue Interest Distribution Amounts and then to pay such
overdue Interest Distribution Amounts, in each case with the Available
Distribution being allocated among the Classes of Senior Certificates
PRO RATA based on their respective Carryover Interest Amounts;
(ii) Second, to the Class A-___ Certificates, (A) first, the
related Interest Distribution Amount for such Distribution Date, and
(B) second, any related Carryover Interest Amount for such Distribution
Date, allocated first to pay all interest accrued and unpaid on overdue
Interest Distribution Amounts and then to pay such overdue Interest
Distribution Amounts;
(iii) Third, to the Class B-___ Certificates, (A) first, the
related Interest Distribution Amount for such Distribution Date, and
(B) second, any related Carryover Interest Amount for such Distribution
Date, allocated first to pay all interest accrued and unpaid on overdue
Interest Distribution Amounts and then to pay such overdue Interest
Distribution Amounts;
(iv) Fourth, to the Class B-___ Certificates, (A) first, the
related Interest Distribution Amount for such Distribution Date and (B)
second, any related Carryover Interest Amount for such Distribution
Date, allocated first to pay all interest accrued and unpaid on overdue
Interest Distribution Amounts and then to pay such overdue Interest
Distribution Amounts;
(v) Fifth, concurrently, to each Class of Senior Certificates,
the related Principal Distribution Shortfall Carryover Amount for the
Senior Certificates, if any, for such Distribution Date, allocated
among the Senior Certificates pro rata based on their respective
Certificate Principal Balances;
(vi) Sixth, to the Senior Certificates, (A) if the Class B
Cross-over Date has not yet occurred or if the Class B Principal
Distribution Tests are not met for such Distribution Date, the
Principal Distribution Amount, or (B) if the Class B Cross-over Date
has occurred and the Class B Principal Distribution Tests are met for
such Distribution Date, the Class A Percentage of the Principal
Distribution Amount, in either case allocated in the following
sequential order:
(1) First, to the Class A-___ Certificates in
reduction of the Certificate Principal Balance of such Class,
until it has been reduced to zero;
(2) Second, to the Class A-___ Certificates in
reduction of the Certificate Principal Balance of such Class,
until it has been reduced to zero;
S - 17
FORM OF POOLING & SERVICING AGREEMENT
(3) Third, to the Class A-___ Certificates in
reduction of the Certificate Principal Balance of such Class,
until it has been reduced to zero;
(4) Fourth, to the Class A-___ Certificates in
reduction of the Certificate Principal Balance of such Class,
until it has been reduced to zero; and
(5) Fifth, to the Class A-___ Certificates in
reduction of the Certificate Principal Balance of such Class,
until it has been reduced to zero;
PROVIDED, HOWEVER, that on any Distribution Date on which the
Pool Scheduled Principal Balance is less than the aggregate
Certificate Principal Balance of the Senior Certificates,
immediately prior to such Distribution Date, the Principal
Distribution Amount or applicable percentage thereof will be
allocated among the Senior Certificates PRO RATA based upon
their respective Certificate Principal Balances;
(vii) Seventh, to the Class A-___ Certificates, (A) first, any
related Writedown Interest Amount for such Distribution Date, and (B)
second, any related Carryover Writedown Interest Amount for such
Distribution Date;
(viii) Eighth, to the Class A-___ Certificates, the related
Principal Distribution Shortfall Carryover Amount for the Class A-___
Certificates, if any, for such Distribution Date;
(ix) Ninth, to the Class A-___ Certificates, (A) if the Class
B Cross-over Date has not yet occurred or if the Class B Distribution
Tests are not met for such Distribution Date, the Principal
Distribution Amount, or (B) if the Class B Cross-over Date has occurred
and the Class B Distribution Tests are met for such Distribution Date,
the Class A Percentage of the Principal Distribution Amount (in the
case of (A) or (B), less the portion thereof, if any, distributable
pursuant to clause (vi) on such Distribution Date);
(x) Tenth, to the Class B-___ Certificates, (A) first, any
related Writedown Interest Amount for such Distribution Date, and (B)
second, any related Carryover Writedown Interest Amount for such
Distribution Date;
(xi) Eleventh, to the Class B-___ Certificates, the related
Principal Distribution Shortfall Carryover Amount for the Class B-___
Certificates, if any, for such Distribution Date;
(xii) Twelfth, to the Class B-___ Certificates, (A) if the
Class B Cross-over Date has occurred and the Class B Principal
Distribution Tests are met for such Distribution Date, the Class B
Percentage of the Principal Distribution Amount; or (B) if the Class A
Principal Balance has been or is reduced to zero on or before such
Distribution Date, the entire Principal Distribution Amount (in the
case of (A) or (B), less
S - 18
FORM OF POOLING & SERVICING AGREEMENT
the portion thereof, if any, distributable pursuant to clauses (vi) or
(ix) above on such Distribution Date);
(xiii) Thirteenth, to the Class B-___ Certificates, (A) first,
any related Writedown Interest Amount for such Distribution Date, and
(B) second, any related Carryover Writedown Interest Amount for such
Distribution Date;
(xiv) Fourteenth, to the Class B-___ Certificates, the related
Principal Distribution Shortfall Carryover Amount for the Class B-___
Certificates, if any, for such Distribution Date;
(xv) Fifteenth, to the Class B-___ Certificates, (A) if the
Class B Cross-over Date has occurred, the Class B Principal
Distribution Tests are met for such Distribution Date and the Class
B-___ Principal Balance has been or is reduced to zero on or before
such Distribution Date, the Class B Percentage of the Principal
Distribution Amount or (B) if the Class A Principal Balance has been or
is reduced to zero on or before such Distribution Date and the Class
B-___ Principal Balance has been or is reduced to zero on or before
such Distribution Date, the entire Principal Distribution Amount (in
the case of (A) or (B), less the portion thereof, if any, distributable
pursuant to clauses (vi), (ix) or (xii) above); PROVIDED, HOWEVER, if
the Class A-___ Certificate Principal Balance has not been reduced to
zero on or prior to such Distribution Date, then amounts distributable
pursuant to this clause (xv) shall be allocated solely to the Class
A-___ Certificates to the extent that allocation of such amounts to the
Class B-___ Certificates would reduce the Class B-___ Certificate
Principal Balance below the Class B-___ Floor Amount;
(xvi) Sixteenth, to the Class A-___ Liquidity Account and the
Class B-__ Liquidity Account in the following sequential order:
(1) to the Class A-___ Liquidity Account until the
amount on deposit therein equals the Class A-___ Liquidity
Account Required Amount; and
(2) to the Class B-___ Liquidity Account until the
amount on deposit therein equals the Class B-___ Liquidity
Account Required Amount;
(xvii) Seventeenth, to the Guarantor, to the extent of any
unreimbursed Limited Guarantee Payment Amounts;
(xviii) Eighteenth, to the Class X Certificates in the
following sequential order:
(A) the current Class X Strip Amount; and
(B) any Class X Carryover Strip Amount; and
(xix) Finally, any remainder to the holders of the Issuing
REMIC Residual Interest.
S - 19
FORM OF POOLING & SERVICING AGREEMENT
(c) All distributions or allocations made with respect to each Class on
each Distribution Date shall be allocated PRO RATA among the outstanding
Certificates of such Class based on their respective Percentage Interests. So
long as the Book-Entry Certificates are registered in the name of a Clearing
Agency or its nominee, the Trustee shall make all distributions or allocations
on such Certificates by wire transfers of immediately available funds to the
Clearing Agency or its nominee. In the case of Certificates issued in
fully-registered, certificated form, payment shall be made either (i) by check
mailed to the address of each Certificateholder as it appears in the Certificate
Register on the Record Date immediately prior to such Distribution Date or (ii)
by wire transfer of immediately available funds to the account of a Holder at a
bank or other entity having appropriate facilities therefor, if such Holder
shall have so notified the Trustee in writing at least five Business Days prior
to the Record Date immediately prior to such Distribution Date and such Holder
is (A) with respect to any Class A or Class B Certificates issued after the
Closing Date in certificated, fully-registered form, the registered owner of
Class A or Class B Certificates with an aggregate initial Certificate Principal
Balance of at least $1,000,000, and (B) with respect to the Residual
Certificates or Class X Certificates, the registered owner of the Residual
Certificates or Class X Certificates evidencing an aggregate Percentage Interest
of at least 50%. The Trustee may charge any Holder its standard wire transfer
fee for any payment made by wire transfer. Final distribution on the
Certificates will be made only upon surrender of the Certificates at the offices
of the Trustee set forth in the notice of such final distribution sent by the
Trustee to all Certificateholders pursuant to Section 9.01 of the Standard
Terms.
(d) (1) Any amounts remaining in the Distribution Account on any
Distribution Date after all allocations and distributions required to be made by
this Pooling and Servicing Agreement have been made, and any amounts remaining
in the Pooling REMIC after payment in full of all of the Regular Interests
therein and any administrative expenses associated with the Trust, will be
distributed to the Holders of the Pooling REMIC Residual Interest.
(2) Any amounts remaining in the Subaccounts on any Distribution Date
after all distributions required to be made by this Pooling and Servicing
Agreement have been made, and any amounts remaining in the Issuing REMIC after
payment in full of the Regular Interests therein and any administrative expenses
associated with the Trust, will be distributed to the Holders of the Issuing
REMIC Residual Interest.
SECTION 6. CLASS A-___ LIQUIDITY ACCOUNT, CLASS B-___ LIQUIDITY ACCOUNT AND
LIMITED GUARANTEE.
(a)(1) A Class A-___ Liquidity Account is hereby established as part of
the Trust Estate. The Class A-___ Liquidity Account shall be an asset of the
Issuing REMIC. The Trustee shall hold the Class A-___ Liquidity Account and
maintain its status at all times as an Eligible Account. The account for the
Class A-___ Liquidity Account shall be in the name of the Trustee, or shall be
designated in a manner that reflects that all funds in such account are held in
trust for the benefit of the Trustee. The Trustee shall invest all amounts on
deposit in the
S - 20
FORM OF POOLING & SERVICING AGREEMENT
Class A-___ Liquidity Account in Eligible Investments as directed in writing by
the holders of a majority in interest (by Percentage Interest) of the Issuing
REMIC Residual Interest. All net income and gain if any, from such investments
shall become funds available in the Class A-___ Liquidity Account. All loss, if
any, from such investments shall become a charge to the Class A-___ Liquidity
Account.
(2) On each Distribution Date, after the amounts allocated to the
various Subaccounts have been allocated in accordance with Section 5(b) hereof,
the Trustee shall, in accordance with the related Remittance Report, withdraw
from the Class A-___ Liquidity Account the amount of the Class A-___ Liquidity
Account Draw Amount, if any, for such Distribution Date. Such Class A-___
Liquidity Account Draw Amount, if any, will be applied on the Class A-___
Certificates in accordance with clauses (ii) and (vii) under Section 5(b) hereof
(in that order).
(3) If, after the disbursement of the related Class A-___ Liquidity
Account Draw Amount, if any, in accordance with Section 6(a)(2) above on any
Distribution Date other than the final Distribution Date, the amount on deposit
in the Class A-___ Liquidity Account exceeds the Class A-___ Liquidity Account
Required Amount, the amount of such excess shall be withdrawn and distributed
first to the Class B-___ Liquidity Account, until the amount on deposit therein
equals the Class B-___ Liquidity Account Required Amount, second, to Oakwood
Homes to the extent of any unreimbursed Limited Guarantee Payment Amounts,
third, to the holders of the Class X Certificates in reduction of any unpaid
Class X Strip Amounts (such amounts to be distributed first in reduction of the
Class X Strip Amount for such Distribution Date, to the extent not previously
distributed, and next in reduction of any Class X Carryover Strip Amount for
such Distribution Date, to the extent not previously distributed), and then to
the holders of the Issuing REMIC Residual Interest.
(4) On the final Distribution Date, after the disbursement of the Class
A-___ Liquidity Account Draw Amount, if any, in accordance with Section 6(a)(2)
above, the amount, if any, on deposit in the Class A-___ Liquidity Account will
be withdrawn by the Trustee and distributed in the following order of priority:
(i) first, in reduction of any remaining Certificate Principal Balance of the
Class A-___ Certificates to zero; (ii) next, in reduction of any remaining
Certificate Principal Balance of the Class B-___ Certificates to zero; (iii)
next, to the Class B- ___ Certificates in reduction of any remaining Certificate
Principal Balance of the Class B-___ Certificates to zero; (iv) next, to Oakwood
Homes to the extent of any unreimbursed Limited Guarantee Payment Amounts; (v)
next, to the holders of the Class X Certificates in reduction of any unpaid
Class X Strip Amounts (such amounts to be distributed first in reduction of the
Class X Strip Amount for such Distribution Date, to the extent not previously
distributed, and next in reduction of any Class X Carryover Strip Amount for
such Distribution Date, to the extent not previously distributed); and (vi)
finally, to the holders of the Issuing REMIC Residual Interest, whereupon the
Class A-___ Liquidity Account shall be terminated.
(b)(1) The Class B-___ Liquidity Account is hereby established as part
of the Trust Estate. The Class B-___ Liquidity Account shall be an asset of the
Issuing REMIC. The Trustee shall hold the Class B-___ Liquidity Account and
maintain its status at all times as an
S - 21
FORM OF POOLING & SERVICING AGREEMENT
Eligible Account. The account for the Class B-___ Liquidity Account shall be in
the name of the Trustee, or shall be designated in a manner that reflects that
all funds in such accounts are held in trust for the benefit of the Trustee. The
Trustee shall invest all amounts on deposit in the Class B-___ Liquidity Account
in Eligible Investments as directed in writing by the holders of a majority in
interest (by Percentage Interest) of the Issuing REMIC Residual Interest. All
net income and gain, if any, from such investments shall become funds available
in the Class B-___ Liquidity Account. All loss, if any, from such investments
shall become a charge to the Class B-___ Liquidity Account.
(2) On each Distribution Date, after the amounts allocated to the
various Subaccounts have been allocated in accordance with Section 5(b) hereof,
the Trustee shall, in accordance with the related Remittance Report, withdraw
from the Class B-___ Liquidity Account the amount of the Class B-___ Liquidity
Account Draw Amount, if any, for such Distribution Date. Such Class B-___
Liquidity Account Draw Amount, if any, will be applied on the Class B-___
Certificates in accordance with clauses (iii) and (x) under Section 5(b) hereof
(and in that order).
(3) If, after the disbursement of the related Class B-___ Liquidity
Account Draw Amount in accordance with Sections 6(b)(2) above on any
Distribution Date other than the final Distribution Date, the amount on deposit
in the Class B-___ Liquidity Account exceeds the Class B-___ Liquidity Account
Required Amount, the amount of such excess shall be withdrawn and distributed
first, to Oakwood Homes to the extent of any unreimbursed Limited Guarantee
Payment Amounts, next to the holders of the Class X Certificates in reduction of
any unpaid Class X Strip Amounts (such amounts to be distributed first in
reduction of the Class X Strip Amount for such Distribution Date, to the extent
not previously distributed, and next in reduction of any Class X Carryover Strip
Amount for such Distribution Date, to the extent not previously distributed),
and then to the holders of the Issuing REMIC Residual Interest.
(4) On the final Distribution Date, after the disbursement of the Class
B-___ Liquidity Account Draw Amount in accordance with Sections 6(b)(2) above,
the amount, if any, on deposit in the Class B-___ Liquidity Account will be
withdrawn by the Trustee and distributed in the following order of priority: (i)
first, in reduction of any remaining Certificate Principal Balance of the Class
B-___ Certificates to zero; (ii) next, in reduction of any remaining Certificate
Principal Balance of the Class B-___ Certificates to zero, (iii) next, to
Oakwood Homes to the extent of any unreimbursed Limited Guarantee Payment
Amounts, (iv) next, to the holders of the Class X Certificates in reduction of
any unpaid Class X Strip Amounts (such amounts to be distributed first in
reduction of the Class X Strip Amount for such Distribution Date, to the extent
not previously distributed, and next in reduction of any Class X Carryover Strip
Amount for such Distribution Date, to the extent not previously distributed);
and (v) finally, to the holders of the Issuing REMIC Residual Interest,
whereupon the Class B-___ Liquidity Account shall be terminated.
(c) The Trustee is the beneficiary of the Limited Guarantee. No later
than 1:00 p.m. New York City time on each Remittance Date, after taking into
account the amounts allocated to the various Subaccounts in accordance with
Section 5(b) hereof, the Trustee shall, in accordance with the related
Remittance Report and in accordance with the terms of the Limited
S - 22
FORM OF POOLING & SERVICING AGREEMENT
Guarantee, notify the Guarantor of any Limited Guarantee Payment Amount payable
under the Limited Guarantee on the related Distribution Date. In addition, the
Servicer shall notify the Guarantor as soon as practical (but no later than the
related Remittance Date) after determining that a Limited Guarantee Payment
Amount shall be payable under the Limited Guarantee on the related Distribution
Date. Under the Limited Guarantee, upon receipt of notice as described above,
the Guarantor shall be required to deliver the Limited Guarantee Payment Amount,
if any, on or prior to the Remittance Date for the related Distribution Date.
Such Limited Guarantee Payment Amount received by the Trustee shall be paid to
the Holders of the Class B-___ Certificates on such Distribution Date (or such
later date, if such amounts are received subsequent to such Distribution Date).
In no event shall the Limited Guarantee Payment Amount be distributed on any
Class of Certificates other than the Class B-___ Certificates and any such
amounts received by the Trustee which are not distributable to the Class B-___
Certificates shall be returned by the Trustee to the Guarantor. The Trustee
shall promptly notify the Rating Agencies in the event a Limited Guarantee
Payment Amount, if any, is not received in a timely manner with respect to a
Distribution Date. Any Limited Guarantee Payment Amounts made by the Guarantor
to the Trustee shall be made in cash and shall be considered to be payments made
to the Issuing REMIC in the nature of a guarantee within the meaning of Code
Section 860G(d)(2)(B).
SECTION 7. ALLOCATION OF WRITEDOWN AMOUNTS.
On each Distribution Date, after all required distributions have been
made on the Certificates pursuant to Sections 5 and 6 above, the Writedown
Amount, if any, shall be allocated on such Distribution Date in the following
manner and in the following order of priority:
(a) First, to the Class B-___ Certificates and to the Class
B-___ Subaccount, to be applied in reduction of the Adjusted
Certificate Principal Balance of such Class and the Adjusted Subaccount
Principal Balance of such Subaccount, respectively, until the Adjusted
Certificate Principal Balance has been reduced to zero;
(b) Second, to the Class B-___ Certificates and to the Class
B-___ Subaccount, to be applied in reduction of the Adjusted
Certificate Principal Balance of such Class and the Adjusted Subaccount
Principal Balance of such Subaccount, respectively, until the Adjusted
Certificate Principal Balance has been reduced to zero; and
(c) Finally, to the Class A-___ Certificates and to the Class
A-___ Subaccount, to be applied in reduction of the Adjusted
Certificate Principal Balance of such Class and the Adjusted Subaccount
Principal Balance of such Subaccount, respectively, until the Adjusted
Certificate Principal Balance has been reduced to zero.
S - 23
FORM OF POOLING & SERVICING AGREEMENT
SECTION 8. REMITTANCE REPORTS.
(a) The Remittance Report for each Distribution Date shall identify the
following items, in addition to the items specified in Section 4.01 of the
Standard Terms:
(1) the Interest Distribution Amount for each Class of the
Certificates for such Distribution Date (which shall equal the Priority
Interest Amount for the Corresponding Subaccount) and the Carryover
Interest Amount, as well as any Writedown Interest Amount and any
Carryover Writedown Interest Amount, for each Class of the Certificates
for such Distribution Date, and the amount of interest of each such
category to be distributed on each such Class based upon the Available
Distribution for such Distribution Date;
(2) the amount to be distributed on such Distribution Date on
each Class of the Certificates to be applied to reduce the Certificate
Principal Balance of such Class (which will be equal to the amount to
be allocated on such Distribution Date on the Corresponding Subaccount
to be applied to reduce the Subaccount Principal Balance of such
Subaccount), separately identifying any portion of such amount
attributable to any prepayments, and the amount to be distributed to
reduce the Principal Distribution Shortfall Carryover Amount on each
such Class based upon the Available Distribution for such Distribution
Date;
(3) the aggregate amount, if any, to be distributed on the
Residual Certificates;
(4) the amount of any Writedown Amounts to be allocated to
reduce the Certificate Principal Balance of any Class of Subordinated
Certificates (which will be equal to the amount of any Writedown Amount
to be allocated to the Corresponding Subaccount) on such Distribution
Date;
(5) (a) the Class A-___ Liquidity Account Required Amount and
the Class B- ___ Liquidity Account Required Amount both immediately
before and after the Distribution Date, (b) the amount of any Class
A-___ Liquidity Account Draw Amount and any Class B-___ Liquidity
Account Draw Amount for such Distribution Date, (c) the amount to be
deposited into the Class A-___ Liquidity Account and the Class B-___
Liquidity Account pursuant to clause (xvi) under Section 5(b) above,
and (d) the amount on deposit in the Class A-___ Liquidity Account and
the Class B-___ Liquidity Account both immediately before and
immediately after the Distribution Date;
(6) the amount of the Limited Guarantee Payment Amount, if
any, for such Distribution Date and the aggregate amount of any unpaid
Limited Guarantee Payment Amounts for any previous Distribution Dates;
(7) the Certificate Principal Balance of each Class of the
Certificates (which will be equal to the Subaccount Principal Balance
of the Corresponding Subaccount) and the Adjusted Certificate Principal
Balance of each Class of the Offered Subordinated
S - 24
FORM OF POOLING & SERVICING AGREEMENT
Certificates (which will be equal to the Adjusted Subaccount Principal
Balance of the Corresponding Subaccount) after giving effect to the
distributions to be made (and any Writedown Amounts to be allocated) on
such Distribution Date;
(8) the aggregate Interest Distribution Amount remaining
unpaid, if any, and the aggregate Carryover Interest Amount remaining
unpaid, if any, for each Class of Certificates (which will be equal to
the Priority Interest Amount and Carryover Interest Amount remaining
unpaid on the Corresponding Subaccount), after giving effect to all
distributions to be made on such Distribution Date;
(9) the aggregate Writedown Interest Amount remaining unpaid,
if any, and the aggregate Carryover Writedown Interest Amount remaining
unpaid, if any, for each Class of Certificates (which will be equal to
such amounts remaining unpaid on the Corresponding Subaccount), after
giving effect to all distributions to be made on such Distribution
Date; and
(10) the aggregate Principal Distribution Shortfall Carryover
Amount remaining unpaid, if any, for each Class of Certificates, after
giving effect to the distributions to be made on such Distribution
Date.
In the case of information furnished pursuant to clauses (1), (2) and
(3) above, the amounts shall be expressed, with respect to any Class A or Class
B Certificate, as a dollar amount per $1,000 denomination.
(b) In addition to mailing a copy of the related Remittance Report to
each Certificateholder on each Distribution Date in accordance with Section 4.01
of the Standard Terms, on each Distribution Date, the Trustee shall mail a copy
of the related Remittance Report to each Underwriter (to the attention of the
person, if any, reported to the Trustee by the applicable Underwriter), to the
Seller and to THE BLOOMBERG (to the address and to the person, if any specified
to the Trustee by ______________________________________). The Trustee shall not
be obligated to mail any Remittance Report to THE BLOOMBERG unless and until
_____________ _______________________ shall have notified the Trustee in writing
of the name and address to which such reports are to be mailed, which notice,
once delivered, will be effective for all Distribution Dates after the date such
notice is received by the Trustee unless and until superseded by a subsequent
notice.
SECTION 9. LIMITED RIGHT OF SERVICER TO RETAIN SERVICING FEES FROM COLLECTIONS.
The Servicer may retain its Servicing Fee and any other servicing
compensation provided for herein and in the Standard Terms from gross interest
collections on the Assets prior to depositing such collections into the
Certificate Account; PROVIDED, HOWEVER, that OAC as Servicer may only so retain
its Servicing Fee in respect of a Distribution Date from gross interest
collections on the Assets to the extent that the amounts on deposit in the
Certificate Account and attributable to the Available Distribution for such
Distribution Date exceed the sum
S - 25
FORM OF POOLING & SERVICING AGREEMENT
of all amounts to be allocated and distributed on such Distribution Date
pursuant to clauses (i) through (xvi) under Section 5(b) hereof.
SECTION 10. REMIC Administration.
(a) For purposes of the REMIC Provisions, all of the Certificates
(except the Residual Certificates) will be designated as the "regular interests"
in the Issuing REMIC, the ________ Subaccounts will be designated as the
"regular interests" in the Pooling REMIC, the Class R Certificates will be
designated as the "residual interest" in each of the Issuing REMIC and the
Pooling REMIC and, following the division of the Class R Certificates into two
separately transferable, certificated and fully registered certificates in
accordance with Section 10(b) below, the Class R-1 Certificates will be
designated as the "residual interest" in the Issuing REMIC and the Class R-2
Certificates will be designated as the "residual interest" in the Pooling REMIC.
(b) Upon the request of any registered Holder of a Class R Certificate,
the Trustee shall issue to such Holder two separately transferable, certificated
and fully registered Certificates (a Class R-1 Certificate and a Class R-2
Certificate), in substantially the forms of Exhibit R-1 and Exhibit R-2 attached
hereto. In the event that the Class R Certificates are exchanged for separately
transferrable Class R-1 and Class R-2 Certificates: (1) the Class R-1
Certificates will be designated as the residual interest in the Issuing REMIC,
(2) the Class R-2 Certificates will be designated as the residual interest in
the Pooling REMIC, (3) the Holders of a majority of the Percentage Interest in
the Class R-1 Certificates together with the Holders of a majority of the
Percentage Interest in the Class R-2 Certificates will have the option to make a
Terminating Purchase given to the Holders of a majority of the Percentage
Interest in the Residual Certificates pursuant to Section 9.01 of the Standard
Terms, and (4) the restrictions on the transfer of a Residual Certificate
provided in the Standard Terms will apply to both the Class R-1 and the Class
R-2 Certificates.
SECTION 11. AUCTION CALL.
(a) If neither the Servicer nor the Residual Majority exercises its
optional termination right as described in Section 9.01 of the Standard Terms
within 90 days after it first becomes entitled to do so, the Trustee shall use
commercially reasonable efforts to solicit bids for the purchase of all Assets,
REO Properties and Repo Properties remaining in the Trust from no fewer than two
prospective purchasers that it believes to be Qualified Bidders. If OAC is then
the Servicer of the Assets, the solicitation of bids shall be conditioned upon
the continuation of OAC as the servicer of the Assets on terms and conditions
substantially similar to those in the Pooling and Servicing Agreement, except
that it shall not be required to pay compensating interest or make Advances.
(b) If the Trustee receives bids from at least two Qualified Bidders
and the net proceeds of the highest bid are equal to or greater than the
Termination Price, the Trustee shall promptly advise the Servicer of the highest
bid and the terms of purchase, and the Servicer shall have three Business Days,
at its option, to match the terms of such bid. The Trustee shall thereafter sell
the Assets, REO Properties and Repo Properties either (i) to the Servicer, if it
S - 26
FORM OF POOLING & SERVICING AGREEMENT
shall so elect, or (ii) to the highest bidder, and in either case the Trustee
shall distribute the net proceeds of such sale in redemption of the Certificates
in compliance with Article IX of the Standard Terms and Section 5 hereof. Any
such sale must also comply with the requirements applicable to a Terminating
Purchase set forth in Section 9.02 of the Standard Terms.
(c) Any costs incurred by the Trustee in connection with such sale
(including without limitation any legal opinions or consents required by Section
9.02 of the Standard Terms) shall be deducted from the bid price of the Assets,
REO Properties and Repo Properties in determining the net proceeds therefrom.
(d) If the Trustee does not obtain bids from at least two Qualified
Bidders, or does not receive a bid such that the net proceeds therefrom would at
least equal the Termination Price, it shall not sell the Assets, REO Properties
and Repo Properties, and shall thereafter have no obligation to attempt to sell
same.
(e) The Servicer shall cooperate with and provide necessary information
to the Trustee in connection with any auction sale as described herein.
SECTION 12. VOTING RIGHTS.
The Voting Rights applicable to the Certificates shall be allocated
0.5% to the Class R Certificates, 0.5% to the Class X Certificates and 99% to
the other Certificates in proportion with their respective Certificate Principal
Balance.
SECTION 13. GOVERNING LAW.
The Pooling and Servicing Agreement shall be construed in accordance
with and governed by the laws of the State of North Carolina applicable to
agreements made and to be performed therein. The parties hereto agree to submit
to the personal jurisdiction of all federal and state courts sitting in the
State of North Carolina and hereby irrevocably waive any objection to such
jurisdiction. In addition, the parties hereto hereby irrevocably waive any
objection that they may have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any federal or state
court sitting in the State of North Carolina, and further irrevocably waive any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
SECTION 14. FORMS OF CERTIFICATES.
Each of the Schedules and Exhibits attached hereto or referenced herein
are incorporated herein by reference as contemplated by the Standard Terms. Each
Class of Certificates shall be in substantially the related form attached
hereto, as set forth in the Index to Schedules and Exhibits attached hereto.
S - 27
FORM OF POOLING & SERVICING AGREEMENT
SECTION 15. COUNTERPARTS.
This Pooling and Servicing Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
SECTION 16. ENTIRE AGREEMENT.
This Pooling and Servicing Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof, and fully
supersedes any prior or contemporaneous agreements relating to such subject
matter.
S - 28
FORM OF POOLING & SERVICING AGREEMENT
IN WITNESS WHEREOF, the Company, the Servicer and the Trustee have
caused this Pooling and Servicing Agreement to be duly executed by their
respective officers thereunto duly authorized and their respective signatures
duly attested all as of the day and year first above written.
DEUTSCHE FINANCIAL CAPITAL
SECURITIZATION LLC
BY: DEUTSCHE FINANCIAL CAPITAL I
CORP., as manager
By:
Name: Douglas R. Muir
Title: Treasurer, Assistant Secretary and Vice
President
OAKWOOD ACCEPTANCE CORPORATION
By:
Name: Douglas R. Muir
Title: Vice President
[ ],
AS TRUSTEE
By:
Name:
Title:
S - 29
FORM OF POOLING & SERVICING AGREEMENT
STATE OF NORTH CAROLINA )
) s.
COUNTY OF GUILFORD )
The foregoing instrument was acknowledged before me in the County of
Guilford this ____ day of _____________, 19_____ by Douglas R. Muir, Treasurer,
Assistant Secretary and Vice President of Deutsche Financial Capital I
Corp., a North Carolina corporation, on behalf of the
corporation, in its capacity as Manager of Deutsche Financial Capital
Securitization LLC.
-----------------------------------
Notary Public
My Commission expires: ___________, ____
STATE OF NORTH CAROLINA )
) s.
COUNTY OF GUILFORD )
The foregoing instrument was acknowledged before me in the County of
Guilford this ____ day of ____________, 19____ by Douglas R. Muir, Vice
President of Oakwood Acceptance Corporation, a North Carolina corporation, on
behalf of the corporation.
-----------------------------------
Notary Public
My Commission expires: ___________, ____
S - 30
FORM OF POOLING & SERVICING AGREEMENT
STATE OF ____________________ )
) s.
CITY OF ____________ )
The foregoing instrument was acknowledged before me in the City of
____________, this ____ day of ________, 19__, by , of
______________________________, a national banking association, on behalf of the
association.
-----------------------------------
Notary Public
My Commission expires: _____________, ____
S - 31
FORM OF POOLING & SERVICING AGREEMENT
INDEX TO SCHEDULES AND EXHIBITS
SCHEDULE IA Contract Schedule
SCHEDULE IB Mortgage Loan Schedule
EXHIBIT A-1 Form of Class A-___ Certificate
EXHIBIT A-2 Form of Class A-___ Certificate
EXHIBIT A-3 Form of Class A-___ Certificate
EXHIBIT A-4 Form of Class A-___ Certificate
EXHIBIT A-5 Form of Class A-___ Certificate
EXHIBIT A-6 Form of Class A-___ Certificate
EXHIBIT B-1 Form of Class B-___ Certificate
EXHIBIT B-2 Form of Class B-___ Certificate
EXHIBIT X Form of Class X Certificate
EXHIBIT R Form of Class R Certificate
S - 32
FORM OF POOLING & SERVICING AGREEMENT