IMPAC SECURED ASSETS CORP., Depositor, IMPAC FUNDING CORPORATION Master Servicer, and [NAME OF TRUSTEE] Trustee POOLING AND SERVICING AGREEMENT DATED AS OF __________ 1, 200_ ASSET-BACKED CERTIFICATES SERIES 200_-_
Exhibit
4.1
Depositor,
IMPAC
FUNDING CORPORATION
Master
Servicer,
and
[NAME
OF
TRUSTEE]
Trustee
DATED
AS
OF __________ 1, 200_
________________________
ASSET-BACKED
CERTIFICATES
SERIES
200_-_
Exhibit
4.1
TABLE
OF
CONTENTS
Page
|
ARTICLE
I
DEFINITIONS
|
||
|
Section
1.01.
|
Defined
Terms
|
10
|
|
Section
1.02.
|
Determination
of LIBOR
|
61
|
|
Section
1.03.
|
Allocation
of Certain Interest Shortfalls
|
62
|
|
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS
|
||
|
Section
2.01.
|
Conveyance
of Mortgage Loans
|
63
|
|
Section
2.02.
|
Acceptance
of the Trust Fund by the Trustee
|
66
|
|
Section
2.03.
|
Representations,
Warranties and Covenants of the Master Servicer and the
Depositor
|
68
|
|
Section
2.04.
|
Representations
and Warranties of the Sponsor
|
70
|
|
Section
2.05.
|
Issuance
of Certificates; Conveyance of REMIC 1 Regular Interests and REMIC
2
Regular Interests and Acceptance of REMIC 2 REMIC 3 by the
Trustee
|
71
|
|
Section
2.06.
|
[reserved].
|
72
|
|
Section
2.07.
|
Purposes
and Powers of the Trust
|
72
|
|
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE TRUST FUND
|
||
|
Section
3.01.
|
Master
Servicer to Act as Master Servicer
|
74
|
|
Section
3.02.
|
Sub-Servicing
Agreements Between Master Servicer and Sub-Servicers
|
76
|
|
Section
3.03.
|
Successor
Sub-Servicers
|
77
|
|
Section
3.04.
|
Liability
of the Master Servicer
|
77
|
|
Section
3.05.
|
No
Contractual Relationship Between Sub-Servicers and Trustee or
Certificateholders
|
78
|
|
Section
3.06.
|
Assumption
or Termination of Sub-Servicing Agreements by Trustee
|
78
|
|
Section
3.07.
|
Collection
of Certain Mortgage Loan Payments
|
79
|
|
Section
3.08.
|
Sub-Servicing
Accounts
|
80
|
|
Section
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts
|
80
|
|
Section
3.10.
|
Custodial
Account
|
81
|
|
Section
3.11.
|
Permitted
Withdrawals From the Custodial Account
|
82
|
|
Section
3.12.
|
Permitted
Investments
|
83
|
|
Section
3.13.
|
Maintenance
of Primary Hazard Insurance
|
84
|
|
Section
3.14.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements
|
86
|
|
Section
3.15.
|
Realization
Upon Defaulted Mortgage Loans
|
87
|
|
Section
3.16.
|
Trustee
to Cooperate; Release of Mortgage Files
|
88
|
|
Section
3.17.
|
Servicing
Compensation
|
89
|
|
Section
3.18.
|
Maintenance
of Certain Servicing Policies
|
90
|
|
Section
3.19.
|
Annual
Statement as to Compliance
|
91
|
|
Section
3.20.
|
Assessments
of Compliance and Attestation Reports.
|
91
|
|
Section
3.21.
|
Access
to Certain Documentation.
|
93
|
|
Section
3.22.
|
Title,
Conservation and Disposition of REO Property.
|
94
|
|
Section
3.23.
|
Additional
Obligations of the Master Servicer.
|
96
|
|
Section
3.24.
|
Additional
Obligations of the Depositor.
|
96
|
|
Section
3.25.
|
Exchange
Act Reporting.
|
96
|
|
Section
3.26.
|
Intention
of the Parties and Interpretation
|
99
|
|
Section
3.27.
|
Realization
Upon Commercial or Mixed-Use Loans.
|
99
|
|
Section
3.28.
|
Title
and Management of REO Properties Related to Commercial or Mixed-Use
Loans.
|
101
|
|
Section
3.29.
|
Sale
of Specially Serviced Mortgage Loans and Related REO
Properties.
|
103
|
|
Section
3.30.
|
Transfer
of Servicing Between Master Servicer and Special Servicer; Record
Keeping.
|
105
|
|
Section
3.31.
|
Inspections.
|
106
|
|
Section
3.32.
|
Available
Information and Notices.
|
106
|
|
ARTICLE
IV
PAYMENTS
TO CERTIFICATEHOLDERS
|
||
|
Section
4.01.
|
Distributions.
|
107
|
|
Section
4.02.
|
Statements
to Certificateholders.
|
113
|
|
Section
4.03.
|
Remittance
Reports; Advances by the Master Servicer.
|
114
|
|
Section
4.04.
|
Distributions
on the REMIC Regular Interests.
|
118
|
|
Section
4.05.
|
Allocation
of Realized Losses.
|
120
|
|
Section
4.06.
|
Information
Reports to Be Filed by the Master Servicer.
|
122
|
|
Section
4.07.
|
Compliance
with Withholding Requirements.
|
122
|
|
Section
4.08.
|
Net
WAC Shortfall Reserve Fund.
|
122
|
|
Section
4.09.
|
Supplemental
Interest Trust.
|
123
|
|
Section
4.10.
|
The
Certificate Guaranty Insurance Policy.
|
125
|
|
ARTICLE
V
THE
CERTIFICATES
|
||
|
Section
5.01.
|
The
Certificates.
|
126
|
|
Section
5.02.
|
Registration
of Transfer and Exchange of Certificates.
|
129
|
|
Section
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
134
|
|
Section
5.04.
|
Persons
Deemed Owners.
|
134
|
|
Section
5.05.
|
Rule
144A Information.
|
135
|
|
ARTICLE
VI
THE
DEPOSITOR AND THE MASTER SERVICER
|
||
|
Section
6.01.
|
Liability
of the Depositor and the Master Servicer.
|
135
|
|
Section
6.02.
|
Merger,
Consolidation or Conversion of the Depositor or the Master
Servicer.
|
135
|
|
Section
6.03.
|
Limitation
on Liability of the Depositor, the Master Servicer and
Others.
|
136
|
|
Section
6.04.
|
Limitation
on Resignation of the Master Servicer.
|
137
|
|
Section
6.05.
|
Sale
and Assignment of Master Servicing.
|
137
|
2
|
ARTICLE
VII
DEFAULT
|
||
|
Section
7.01.
|
Events
of Default.
|
138
|
|
Section
7.02.
|
Trustee
to Act; Appointment of Successor.
|
140
|
|
Section
7.03.
|
Notification
to Certificateholders.
|
141
|
|
Section
7.04.
|
Waiver
of Events of Default.
|
141
|
|
Section
7.05.
|
List
of Certificateholders.
|
141
|
|
ARTICLE
VIII
|
||
|
CONCERNING
THE TRUSTEE
|
||
|
Section
8.01.
|
Duties
of Trustee.
|
142
|
|
Section
8.02.
|
Certain
Matters Affecting the Trustee.
|
143
|
|
Section
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
146
|
|
Section
8.04.
|
Trustee
May Own Certificates.
|
146
|
|
Section
8.05.
|
Trustee’s
Fees.
|
146
|
|
Section
8.06.
|
Eligibility
Requirements for Trustee.
|
147
|
|
Section
8.07.
|
Resignation
and Removal of the Trustee.
|
147
|
|
Section
8.08.
|
Successor
Trustee.
|
148
|
|
Section
8.09.
|
Merger
or Consolidation of Trustee.
|
149
|
|
Section
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
149
|
|
ARTICLE
IX
TERMINATION
|
||
|
Section
9.01.
|
Termination
Upon Repurchase or Liquidation of All Mortgage Loans or upon Purchase
of
Certificates.
|
151
|
|
Section
9.02.
|
Termination
of REMIC 2.
|
153
|
|
Section
9.03.
|
Additional
Termination Requirements.
|
153
|
|
ARTICLE
X
REMIC
PROVISIONS
|
||
|
Section
10.01.
|
REMIC
Administration.
|
154
|
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
157
|
|
Section
10.03.
|
Master
Servicer and Trustee Indemnification.
|
158
|
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
||
|
Section
11.01.
|
Amendment.
|
159
|
|
Section
11.02.
|
Recordation
of Agreement; Counterparts.
|
161
|
|
Section
11.03.
|
Limitation
on Rights of Certificateholders.
|
161
|
|
Section
11.04.
|
Governing
Law.
|
162
|
|
Section
11.05.
|
Notices.
|
162
|
|
Section
11.06.
|
Severability
of Provisions.
|
162
|
|
Section
11.07.
|
Successors
and Assigns.
|
163
|
|
Section
11.08.
|
Article
and Section Headings.
|
163
|
|
Section
11.09.
|
Notice
to Rating Agencies.
|
163
|
|
Section
11.10.
|
Rights
of the Certificate Insurer.
|
164
|
|
Section
11.11.
|
Third
Party Rights.
|
164
|
3
Signatures
Acknowledgments
|
Exhibit
A
|
Form
of Class A Certificate
|
|
Exhibit
B-1
|
Form
of Class M Certificate
|
|
Exhibit
B-2
|
Form
of Class C Certificate
|
|
Exhibit
B-3
|
Form
of Class P Certificate
|
|
Exhibit
B-4
|
Form
of Class R Certificate
|
|
Exhibit
C
|
Form
of Custodian Initial Certification
|
|
Exhibit
D
|
Form
of Custodian Final Certification
|
|
Exhibit
E
|
Form
of Remittance Report
|
|
Exhibit
F-1
|
Request
for Release
|
|
Exhibit
F-2
|
Request
for Release for Mortgage Loans Paid in Full
|
|
Exhibit
G-1
|
Form
of Investor Representation Letter
|
|
Exhibit
G-2
|
Form
of Transferor Representation Letter
|
|
Exhibit
G-3
|
Form
of Rule 144A Investment Representation
|
|
Exhibit
G-4
|
Transferor
Certificate for Transfers of Residual Certificates
|
|
Exhibit
G-5
|
Transfer
Affidavit and Agreement for Transfers of Residual
Certificates
|
|
Exhibit
H
|
Mortgage
Loan Schedule
|
|
Exhibit
I
|
Sponsor
Representations and Warranties
|
|
Exhibit
J
|
Form
of Notice Under Section 3.24
|
|
Exhibit
K
|
Impac
Funding Corporation Servicing Guide
|
|
Exhibit
L-1
|
Form
10-K Certification
|
|
Exhibit
L-2
|
Form
10-K Back-up Certification (Master Servicer)
|
|
Exhibit
L-3
|
Form
10-K Back-up Certification (Trustee)
|
|
Exhibit
L-4
|
Form
of Back-up Certification to Form 10-K Certificate
|
|
Exhibit
M
|
Form
of Swap Agreement
|
|
Exhibit
N
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
O
|
Form
10-D, Form 8-K And Form 10-K Reporting
Responsibility
|
4
This
Pooling and Servicing Agreement (this “Agreement”), dated and effective as of
__________ 1, 200_, is entered into among Impac Secured Assets Corp., as
depositor (the “Depositor”), [NAME OF MASTER SERVICER] [IMPAC
FUNDING CORPORATION],
as
master servicer (the “Master Servicer”), and [NAME OF TRUSTEE], as trustee (the
“Trustee”).
PRELIMINARY
STATEMENT
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of nineteen Classes of
certificates, designated as (i) the Class A Certificates, (ii) the Class M
Certificates, (iii) the Class B Certificates, (iv) the Class P Certificates,
(v)
the Class C Certificates and (vi) the Class R Certificates.
REMIC
1
As
provided in this Agreement, the Trustee will make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets 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 1.” The Class R-1 Interest will represent
the sole Class of “residual interests” in REMIC 1 for purposes of the REMIC
Provisions (as defined in this Agreement) under federal income tax law. The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
1 Pass-Through Rate, the initial Uncertificated Principal Balance, and solely
for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii),
the
“latest possible maturity date” for each of the REMIC 1 Regular Interests. None
of the REMIC 1 Regular Interests will be certificated.
|
Designation
|
Uncertificated
REMIC 1
Pass-Through
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||
|
A-I
|
Variable(2)
|
$
|
||||||
|
I-1-A
|
Variable(2)
|
$
|
||||||
|
I-1-B
|
Variable(2)
|
$
|
||||||
|
I-2-A
|
Variable(2)
|
$
|
||||||
|
I-2-B
|
Variable(2)
|
$
|
||||||
|
I-3-A
|
Variable(2)
|
$
|
||||||
|
I-3-B
|
Variable(2)
|
$
|
||||||
|
I-4-A
|
Variable(2)
|
$
|
||||||
|
I-4-B
|
Variable(2)
|
$
|
||||||
|
I-5-A
|
Variable(2)
|
$
|
||||||
|
I-5-B
|
Variable(2)
|
$
|
||||||
|
I-6-A
|
Variable(2)
|
$
|
||||||
|
I-6-B
|
Variable(2)
|
$
|
||||||
|
I-7-A
|
Variable(2)
|
$
|
||||||
|
I-7-B
|
Variable(2)
|
$
|
||||||
|
I-8-A
|
Variable(2)
|
$
|
||||||
|
I-8-B
|
Variable(2)
|
$
|
||||||
|
I-9-A
|
Variable(2)
|
$
|
||||||
|
I-9-B
|
Variable(2)
|
$
|
||||||
|
I-10-A
|
Variable(2)
|
$
|
||||||
5
|
I-10-B
|
Variable(2)
|
$
|
||||||
|
I-11-A
|
Variable(2)
|
$
|
||||||
|
I-11-B
|
Variable(2)
|
$
|
||||||
|
I-12-A
|
Variable(2)
|
$
|
||||||
|
I-12-B
|
Variable(2)
|
$
|
||||||
|
I-13-A
|
Variable(2)
|
$
|
||||||
|
I-13-B
|
Variable(2)
|
$
|
||||||
|
I-14-A
|
Variable(2)
|
$
|
||||||
|
I-14-B
|
Variable(2)
|
$
|
||||||
|
I-15-A
|
Variable(2)
|
$
|
||||||
|
I-15-B
|
Variable(2)
|
$
|
||||||
|
I-16-A
|
Variable(2)
|
$
|
||||||
|
I-16-B
|
Variable(2)
|
$
|
||||||
|
I-17-A
|
Variable(2)
|
$
|
||||||
|
I-17-B
|
Variable(2)
|
$
|
||||||
|
I-18-A
|
Variable(2)
|
$
|
||||||
|
I-18-B
|
Variable(2)
|
$
|
||||||
|
I-19-A
|
Variable(2)
|
$
|
||||||
|
I-19-B
|
Variable(2)
|
$
|
||||||
|
I-20-A
|
Variable(2)
|
$
|
||||||
|
I-20-B
|
Variable(2)
|
$
|
||||||
|
I-21-A
|
Variable(2)
|
$
|
||||||
|
I-21-B
|
Variable(2)
|
$
|
||||||
|
I-22-A
|
Variable(2)
|
$
|
||||||
|
I-22-B
|
Variable(2)
|
$
|
||||||
|
I-23-A
|
Variable(2)
|
$
|
||||||
|
I-23-B
|
Variable(2)
|
$
|
||||||
|
I-24-A
|
Variable(2)
|
$
|
||||||
|
I-24-B
|
Variable(2)
|
$
|
||||||
|
I-25-A
|
Variable(2)
|
$
|
||||||
|
I-25-B
|
Variable(2)
|
$
|
||||||
|
I-26-A
|
Variable(2)
|
$
|
||||||
|
I-26-B
|
Variable(2)
|
$
|
||||||
|
I-27-A
|
Variable(2)
|
$
|
||||||
|
I-27-B
|
Variable(2)
|
$
|
||||||
|
I-28-A
|
Variable(2)
|
$
|
||||||
|
I-28-B
|
Variable(2)
|
$
|
||||||
|
I-29-A
|
Variable(2)
|
$
|
||||||
|
I-29-B
|
Variable(2)
|
$
|
||||||
|
I-30-A
|
Variable(2)
|
$
|
||||||
|
I-30-B
|
Variable(2)
|
$
|
||||||
|
I-31-A
|
Variable(2)
|
$
|
||||||
|
I-31-B
|
Variable(2)
|
$
|
||||||
|
I-32-A
|
Variable(2)
|
$
|
||||||
|
I-32-B
|
Variable(2)
|
$
|
||||||
|
I-33-A
|
Variable(2)
|
$
|
||||||
|
I-33-B
|
Variable(2)
|
$
|
||||||
|
I-34-A
|
Variable(2)
|
$
|
||||||
|
I-34-B
|
Variable(2)
|
$
|
||||||
|
I-35-A
|
Variable(2)
|
$
|
||||||
|
I-35-B
|
Variable(2)
|
$
|
||||||
|
I-36-A
|
Variable(2)
|
$
|
||||||
|
I-36-B
|
Variable(2)
|
$
|
6
|
I-37-A
|
Variable(2)
|
$
|
||||||
|
I-37-B
|
Variable(2)
|
$
|
||||||
|
I-38-A
|
Variable(2)
|
$
|
||||||
|
I-38-B
|
Variable(2)
|
$
|
||||||
|
I-39-A
|
Variable(2)
|
$
|
||||||
|
I-39-B
|
Variable(2)
|
$
|
||||||
|
I-40-A
|
Variable(2)
|
$
|
||||||
|
I-40-B
|
Variable(2)
|
$
|
||||||
|
I-41-A
|
Variable(2)
|
$
|
||||||
|
I-41-B
|
Variable(2)
|
$
|
||||||
|
I-42-A
|
Variable(2)
|
$
|
||||||
|
I-42-B
|
Variable(2)
|
$
|
||||||
|
I-43-A
|
Variable(2)
|
$
|
||||||
|
I-43-B
|
Variable(2)
|
$
|
||||||
|
I-44-A
|
Variable(2)
|
$
|
||||||
|
I-44-B
|
Variable(2)
|
$
|
||||||
|
I-45-A
|
Variable(2)
|
$
|
||||||
|
I-45-B
|
Variable(2)
|
$
|
||||||
|
I-46-A
|
Variable(2)
|
$
|
||||||
|
I-46-B
|
Variable(2)
|
$
|
||||||
|
I-47-A
|
Variable(2)
|
$
|
||||||
|
I-47-B
|
Variable(2)
|
$
|
||||||
|
I-48-A
|
Variable(2)
|
$
|
||||||
|
I-48-B
|
Variable(2)
|
$
|
||||||
|
I-49-A
|
Variable(2)
|
$
|
||||||
|
I-49-B
|
Variable(2)
|
$
|
||||||
|
I-50-A
|
Variable(2)
|
$
|
||||||
|
I-50-B
|
Variable(2)
|
$
|
||||||
|
I-51-A
|
Variable(2)
|
$
|
||||||
|
I-51-B
|
Variable(2)
|
$
|
||||||
|
I-52-A
|
Variable(2)
|
$
|
||||||
|
I-52-B
|
Variable(2)
|
$
|
||||||
|
I-53-A
|
Variable(2)
|
$
|
||||||
|
I-53-B
|
Variable(2)
|
$
|
||||||
|
I-54-A
|
Variable(2)
|
$
|
||||||
|
I-54-B
|
Variable(2)
|
$
|
||||||
|
I-55-A
|
Variable(2)
|
$
|
||||||
|
I-55-B
|
Variable(2)
|
$
|
||||||
|
I-56-A
|
Variable(2)
|
$
|
||||||
|
I-56-B
|
Variable(2)
|
$
|
||||||
|
I-57-A
|
Variable(2)
|
$
|
||||||
|
I-57-B
|
Variable(2)
|
$
|
||||||
|
I-58-A
|
Variable(2)
|
$
|
||||||
|
I-58-B
|
Variable(2)
|
$
|
||||||
|
I-59-A
|
Variable(2)
|
$
|
||||||
|
I-59-B
|
Variable(2)
|
$
|
||||||
|
P
|
Variable(2)
|
$
|
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
first Distribution Date immediately following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each REMIC 1 Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertifcated REMIC 1 Pass-Through
Rate” herein.
|
7
REMIC
2
As
provided in this Agreement, the Trustee will make an election to treat the
segregated pool of assets consisting of the REMIC 1 Regular Interests as a
REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC 2”. The Class R-2 Interest will represent the sole Class of
“residual interests” in REMIC 2 for purposes of the REMIC Provisions. The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
2 Pass-Through Rate, the initial Uncertificated Principal Balance, and solely
for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii),
the
“latest possible maturity date” for each of the REMIC 2 Regular Interests. None
of the REMIC 2 Regular Interests will be certificated.
|
Designation
|
Uncertificated
REMIC 2 Pass-Through
Rate
|
Initial
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||
|
AA
|
Variable(2)
|
$
|
||||||
|
A-1
|
Variable(2)
|
$
|
||||||
|
A-1M
|
Variable(2)
|
$
|
||||||
|
A-1W
|
Variable(2)
|
$
|
||||||
|
A-2A
|
Variable(2)
|
$
|
||||||
|
A-2B
|
Variable(2)
|
$
|
||||||
|
A-2C
|
Variable(2)
|
$
|
||||||
|
A-2D
|
Variable(2)
|
$
|
||||||
|
M-1
|
Variable(2)
|
$
|
||||||
|
M-2
|
Variable(2)
|
$
|
||||||
|
M-3
|
Variable(2)
|
$
|
||||||
|
M-4
|
Variable(2)
|
$
|
||||||
|
M-5
|
Variable(2)
|
$
|
||||||
|
M-6
|
Variable(2)
|
$
|
||||||
|
M-7
|
Variable(2)
|
$
|
||||||
|
M-8
|
Variable(2)
|
$
|
||||||
|
B
|
Variable(2)
|
$
|
||||||
|
ZZ
|
Variable(2)
|
$
|
||||||
|
P
|
Variable(2)
|
$
|
||||||
|
IO
|
Variable(2)
|
___________________
|
(1)
|
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
Mortgage Loan with the latest possible maturity date has been designated
as the “latest possible maturity date” for each REMIC 2 Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC 2 Pass-Through
Rate” in this Agreement.
|
|
(3)
|
REMIC
2 Regular Interest IO will not have an Uncertificated Principal Balance,
but will accrue interest on its Uncertificated Notional
Amount.
|
8
REMIC
3
As
provided in this Agreement, the Trustee will make an election to treat the
segregated pool of assets consisting of the REMIC 2 Regular Interests as a
REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC 3”. The Class R-3 Interest will represent the sole Class of
“residual interests” in REMIC 3 for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC 3 created
hereunder:
|
Class
Designation
|
Initial
Certificate Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final Maturity
Date(1)
|
|||
|
A-1
|
Variable(2)
|
|||||
|
A-1M
|
Variable(2)
|
|||||
|
A-1W
|
Variable(2)
|
|||||
|
A-2A
|
Variable(2)
|
|||||
|
X-0X
|
Xxxxxxxx(0)
|
|||||
|
X-0X
|
Xxxxxxxx(0)
|
|||||
|
X-0X
|
Variable(2)
|
|||||
|
M-1
|
Variable(2)
|
|||||
|
M-2
|
Variable(2)
|
|||||
|
M-3
|
Variable(2)
|
|||||
|
M-4
|
Variable(2)
|
|||||
|
M-5
|
Variable(2)
|
|||||
|
M-6
|
Variable(2)
|
|||||
|
M-7
|
Variable(2)
|
|||||
|
M-8
|
Variable(2)
|
|||||
|
B
|
Variable(2)
|
|||||
|
Class
C
|
Variable(2)
|
|||||
|
Class
P
|
N/A(4)
|
___________________
|
(1)
|
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
Mortgage Loan with the latest possible maturity date has been designated
as the “latest possible maturity date” for each Class of Certificates that
represents one or more of the “regular interests” in REMIC
3.
|
|
(2)
|
Calculated
in accordance with the definition of “Pass-Through Rate” in this
Agreement.
|
|
(3)
|
The
Class C Certificates will accrue interest at their variable Pass-Through
Rate on the Notional Amount of the Class C Certificates outstanding
from
time to time which shall equal the aggregate of the Uncertificated
Principal Balances of the REMIC 1 Regular Interests. The Class C
Certificates will not accrue interest on their Certificate Principal
Balance.
|
|
(4)
|
The
Class P Certificates do not accrue
interest.
|
9
ARTICLE
I
DEFINITIONS
|
Section
1.01.
|
Defined
Terms.
|
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the meanings specified in this Article.
“Accrual
Period” With respect to the Class C Certificates and each Distribution Date, the
calendar month prior to the month of such Distribution Date. With respect to
the
Offered Certificates (i) with respect to the Distribution Date in January 2006,
the period commencing on the Closing Date and ending on the day preceding the
Distribution Date in January 2006, and (ii) with respect to any Distribution
Date thereafter, the period commencing on the Distribution Date in the month
immediately preceding the month in which such Distribution Date occurs and
ending on the day preceding such Distribution Date. Unless otherwise specified,
all calculations in respect of interest on the Class A Certificates (other
than
the Class A-1 Certificates), the Class M-1 Certificates, the Class C
Certificates, the REMIC 1 Regular Interests and the REMIC 2 Regular Interests
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
Unless otherwise specified, all calculations in respect of interest on the
Class
A-1, Class M-2 and Class M-3 Certificates shall accrue on the basis of a 360-day
year and the actual number of days in the related Accrual Period. The Class
P
Certificates and the Class R Certificates do not accrue interest.
“Advance”
As to any Mortgage Loan, any advance made by the Subservicer or Master Servicer
on any Distribution Date pursuant to Section 4.03.
“Affected
Party” As defined in the Swap Agreement.
“Affiliate”
With respect to any Person, any other Person controlling, controlled by or
under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Aggregate
Stated Principal Balance” As of any date of determination, the aggregate Stated
Principal Balance of the Mortgage Loans.
“Agreement”
This Pooling and Servicing Agreement and all amendments hereof.
“Allocated
Realized Loss Amount” With respect to any Distribution Date and any Class of
Offered Certificates, an amount equal to the sum of any Allocated Realized
Loss
Amount allocated to that Class of Certificates on that Distribution Date (other
than, with respect to the Class A-1W Certificates, an Allocated Realized Loss
Amount which was covered by the Certificate Guaranty Insurance Policy) and
any
Allocated Realized Loss Amount for that Class remaining unpaid from any previous
Distribution Date.
10
“Assessment
of Compliance” As defined in Section 3.20
“Assignment”
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the sale of
the
Mortgage.
“Attestation
Report” As defined in Section 3.20
“Available
Distribution Amount” With respect to any Distribution Date, an amount equal to
(a) the sum of (i) the balance on deposit in the Custodial Account as of the
close of business on the related Determination Date, (ii) the aggregate amount
of any Advances made and all amounts required to be paid by the Master Servicer
pursuant to Sections 3.13 and 3.23 by deposits into the Certificate Account
on
the immediately preceding Certificate Account Deposit Date, (iii) the aggregate
amount of Mortgage Loan purchases made pursuant to Section 9.01, (iv) the
aggregate amount required to be deposited by the Master Servicer pursuant to
Section 4.01(h) and (v) Insurance Proceeds, Liquidation Proceeds, Subsequent
Recoveries, Principal Prepayments, REO Proceeds and the proceeds of Mortgage
Loan purchases made pursuant to Sections 2.02, 2.04 or 3.14, in each case
received or made during the related Prepayment Period, reduced by (b) the sum,
as of the close of business on the related Determination Date, of (i) Monthly
Payments collected but due during a Due Period subsequent to the Due Period
ending on the first day of the month of the related Distribution Date, (ii)
all
interest or other income earned on deposits in the Custodial Account or the
Certificate Account, (iii) any other amounts reimbursable or payable to the
Trustee, Master Servicer or any Sub-Servicer pursuant to Section 3.11, (iv)
the
Master Servicing Fees, the Sub-Servicing Fees and the fees of the Trustee
payable on such Distribution Date, (v) any amounts in respect of the premium
payable to PMI Insurer under the PMI Insurer Policy, (vi) the Policy Premium
payable to the Certificate Insurer and, (vii) amounts payable by the Trust
Fund
to the Swap Administrator in respect of Net Swap Payments and Swap Termination
Payments other than Swap Termination Payments resulting from a Swap Provider
Trigger Event (and to the extent not paid by the Swap Administrator from any
upfront payment received pursuant to any replacement interest rate swap
agreement that may be entered into by the Supplemental Interest Trust Trustee),
and (viii) amounts on deposit in the Custodial Account representing any
Prepayment Charges or Master Servicer Prepayment Charge Payment
Amounts.
“Balloon
Loan” Each of the Mortgage Loans identified in the Mortgage Loan Schedule as
having an original term to maturity that is shorter than the related
amortization term.
“Balloon
Payment” With respect to any Balloon Loan, the related Monthly Payment payable
on the stated maturity date of such Balloon Loan.
“Bankruptcy
Code” The Bankruptcy Code of 1978, as amended.
11
“Basic
Principal Distribution Amount” With respect to any Distribution Date, the excess
of (i) the Principal Remittance Amount and the Insured Amount, if any, for
such
Distribution Date over (ii) the Overcollateralization Release Amount, if any,
for such Distribution Date.
“Book-Entry
Certificate” Any Certificate registered in the name of the Depository or its
nominee.
“Beneficial
Owner” With respect to any 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 Person maintaining an account with such Depository (directly as a
Depository Participant or indirectly through a Depository Participant, in
accordance with the rules of such Depository).
“Business
Day” Any day other than a Saturday, a Sunday or a day on which banking
institutions in California or New York (and such other state or states in which
the Custodial Account or the Certificate Account are at the time located) or
in
the city in which the Corporate Trust Office of the Trustee is located are
authorized or obligated by law or executive order to close.
“Cash
Liquidation” As to any defaulted Mortgage Loan other than a Mortgage Loan as to
which an REO Acquisition occurred, a determination by the Master Servicer that
it has received all Insurance Proceeds, Liquidation Proceeds and other payments
or cash recoveries which the Master Servicer reasonably and in good faith
expects to be finally recoverable with respect to such Mortgage
Loan.
“Certificate”
Any Regular Certificate or Class R Certificate.
“Certificate
Account” The trust account or accounts created and maintained pursuant to
Section 4.01, which shall be entitled [TRUSTEE], in trust for registered holders
of Impac Secured Assets Corp., Asset-Backed Certificates, Series 200_-_, and
which account or accounts must each be an Eligible Account.
“Certificate
Account Deposit Date” With respect to any Distribution Date, the third Business
Day immediately preceding such Distribution Date.
“Certificate
Guaranty Insurance Policy”
The
certificate guaranty insurance policy issued by the Certificate Insurer for
the
benefit of the Class A-1W Certificateholders.
“Certificate
Insurer”
Ambac
Assurance Corporation, a Wisconsin domiciled stock insurance corporation, or
any
successor thereto as provided in the Agreement.
12
“Certificateholder”
or “Holder” The Person in whose name a Certificate is registered in the
Certificate Register, except that only a Permitted Transferee shall be a holder
of a Residual Certificate for any purposes hereof and, solely for the purposes
of giving any consent pursuant to this Agreement, any Certificate registered
in
the name of the Depositor or the Master Servicer or any affiliate thereof shall
be deemed not to be outstanding and the Voting Rights to which such Certificate
is entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent has been
obtained, except as otherwise provided in Section 11.01. The Trustee shall
be
entitled to rely upon a certification of the Depositor or the Master Servicer
in
determining if any Certificates are registered in the name of the respective
affiliate. All references in this Agreement 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 in this Agreement; provided,
however,
that
the Trustee 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
Margin” The Certificate Margin for the Offered Certificates shall
be:
|
Certificate
Margin
|
||||
|
Class
|
(1)
|
(2)
|
||
|
X-0
|
||||
|
X-0X
|
||||
|
X-0X
|
||||
|
X-0X
|
||||
|
X-0X
|
||||
|
X-0X
|
||||
|
X-0X
|
||||
|
M-1
|
||||
|
M-2
|
||||
|
M-3
|
||||
|
X-0
|
||||
|
X-0
|
||||
|
X-0
|
||||
|
X-0
|
||||
|
X-0
|
||||
|
X
|
||||
| ______ | ||||
| (1) Initially. | ||||
| (2) On and after the Step-Up Date. |
“Certificate
Owner” With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Certificate, as reflected on the books of an indirect
participating brokerage firm for which a Depository Participant acts as agent,
if any, and otherwise on the books of a Depository Participant, if any, and
otherwise on the books of the Depository.
13
“Certificate
Principal Balance” With respect to any Class of Regular Certificates (other than
the Class C Certificates) immediately prior to any Distribution Date, the
Initial Certificate Principal Balance thereof, increased by any Subsequent
Recoveries allocated thereto, and reduced by the sum of all amounts actually
distributed in respect of principal of such Class and, Realized Losses allocated
thereto on all prior Distribution Dates. With respect to the Class C
Certificates as of any date of determination, an amount equal to the excess,
if
any, of (A) the then aggregate Uncertificated Principal Balances of the REMIC
2
Regular Interests over (B) the then aggregate Certificate Principal Balances
of
the Class A Certificates, the Subordinate Certificates and the Class P
Certificates then outstanding.
“Certificate
Register” The register maintained pursuant to Section 5.02.
“Class”
Collectively, all of the Certificates bearing the same designation.
“Class
A
Certificate” Any one of the Class A-1, Class A-1M, Class A-1W, Class A-2A, Class
A-2B, Class A-2C and Class A-2D Certificates.
“Class
A
Principal Distribution Amount” For any Distribution Date, the excess of (1) the
aggregate Certificate Principal Balance of the Class A Certificates immediately
prior to such Distribution Date, over (2) the lesser of (x) [____]% of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date after giving effect to distributions to be made on that Distribution Date
and (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date after giving effect to distributions to be made on that
Distribution Date minus the OC Floor.
“Class
A-1 Certificate” Any one of the Class A-1 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit A, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
A-1M Certificate” Any one of the Class A-1M Certificates as designated on the
face thereof substantially in the form annexed hereto as Exhibit A, executed
by
the Trustee and authenticated and delivered by the Trustee, representing the
right to distributions as set forth herein and therein and evidencing a REMIC
Regular Interest in REMIC 3.
“Class
A-1W Certificate” Any one of the Class A-1W Certificates as designated on the
face thereof substantially in the form annexed hereto as Exhibit A, executed
by
the Trustee and authenticated and delivered by the Trustee, representing the
right to distributions as set forth herein and therein and evidencing a REMIC
Regular Interest in REMIC 3.
“Class
A-2A Certificate” Any one of the Class A-2A Certificates as designated on the
face thereof substantially in the form annexed hereto as Exhibit A, executed
by
the Trustee and authenticated and delivered by the Trustee, representing the
right to distributions as set forth herein and therein and evidencing a REMIC
Regular Interest in REMIC 3.
14
“Class
A-2B Certificate” Any one of the Class A-2B Certificates as designated on the
face thereof substantially in the form annexed hereto as Exhibit A, executed
by
the Trustee and authenticated and delivered by the Trustee, representing the
right to distributions as set forth herein and therein and evidencing a REMIC
Regular Interest in REMIC 3.
“Class
A-2C Certificate” Any one of the Class A-2C Certificates as designated on the
face thereof substantially in the form annexed hereto as Exhibit A, executed
by
the Trustee and authenticated and delivered by the Trustee, representing the
right to distributions as set forth herein and therein and evidencing a REMIC
Regular Interest in REMIC 3.
“Class
A-2D Certificate” Any one of the Class A-2D Certificates as designated on the
face thereof substantially in the form annexed hereto as Exhibit A, executed
by
the Trustee and authenticated and delivered by the Trustee, representing the
right to distributions as set forth herein and therein and evidencing a REMIC
Regular Interest in REMIC 3.
“Class
B
Certificate” Any one of the Class B Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-1, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
C
Certificate” Any one of the Class C Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-2, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
M-1 Certificate” Any one of the Class M-1 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-1, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
M-2 Certificate” Any one of the Class M-2 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-1, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
M-3 Certificate” Any one of the Class M-3 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-1, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
M-4 Certificate” Any one of the Class M-4 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-1, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
15
“Class
M-5 Certificate” Any one of the Class M-5 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-1, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
M-6 Certificate” Any one of the Class M-6 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-1, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
M-7 Certificate” Any one of the Class M-7 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-1, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
M-8 Certificate” Any one of the Class M-8 Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-1, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
P
Certificate” Any one of the Class P Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-3, executed by
the
Trustee and authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
“Class
R
Certificate” Any one of the Class R Certificates as designated on the face
thereof substantially in the form annexed hereto as Exhibit B-4, executed by
the
Trustee and authenticated and delivered by the Trustee, evidencing the ownership
of the Class R-1 Interest, Class R-2 Interest and Class R-3
Interest.
“Class
R-1 Interest” The uncertificated Residual Interest in REMIC 1.
“Class
R-2 Interest” The uncertificated Residual Interest in REMIC 2.
“Class
R-3 Interest” The uncertificated Residual Interest in REMIC 3.
“Closing
Date” __________ ___, 200_.
“CMSA
IRP” Commercial Mortgage Securities Association Investor Reporting
Package.
“Code”
The Internal Revenue Code of 1986.
“Collateral
Value” The appraised value of a Mortgaged Property based upon the lesser of (i)
the appraisal (as reviewed and approved by the Sponsor) made at the time of
the
origination of the related Mortgage Loan, or (ii) the sales price of such
Mortgaged Property at such time of origination. With respect to a Mortgage
Loan
the proceeds of which were used to refinance an existing mortgage loan, the
appraised value of the Mortgaged Property based upon the appraisal (as reviewed
and approved by the Sponsor) obtained at the time of refinancing.
16
“Commission”
The Securities and Exchange Commission.
“Compensating
Interest” With respect to any Distribution Date, an amount equal to Prepayment
Interest Shortfalls resulting from Principal Prepayments during the related
Prepayment Period, but not more than the sum of the Master Servicing Fees and
the Subservicing Fees for the immediately preceding Due Period.
“Corrected
Mortgage Loan” Any commercial or mixed-use loan which is no longer a Specially
Serviced Mortgage Loan as a result of the curing of any event of default under
such Specially Serviced Mortgage Loan through a modification, restructuring
or
workout negotiated by the Servicer, or a Special Servicer on the Servicer’s
behalf, and evidenced by a signed writing.
“Corporate
Trust Office” The principal corporate trust office of the Trustee at which at
any particular time its corporate trust business related to this Agreement
shall
be administered, which office at the date of the execution of this Agreement
is
located at (i) for purposes of the transfer, surrender and exchange of the
Certificates, __________________, Attention: __________________, and (ii) for
all other purposes, _________________, Attention: __________________, or such
other address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor and the Master Servicer.
“Corresponding
Certificate”: With respect to each REMIC 2 Regular Interest (other than REMIC 2
Regular Interest AA and REMIC 2 Regular Interest ZZ), the Certificate with
the
corresponding designation.
“Credit
Enhancement Percentage” For any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is equal to (a) the excess of (i) the
aggregate principal balance of the Mortgage Loans for the preceding Distribution
Date over (ii) (1) before the Certificate Principal Balances of the Class A
Certificates have been reduced to zero, the sum of the Certificate Principal
Balances of the Class A Certificates, or (2) after such time, the Certificate
Principal Balance of the most senior Class of Subordinate Certificates
outstanding, as of the preceding Distribution Date, and the denominator of
which
is equal to (b) the aggregate principal balance of the Mortgage Loans,
calculated after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment
Period.
“Current
Report” The Current Report pursuant to Section 13 or 15(d) of the Exchange
Act.
“Curtailment”
Any Principal Prepayment made by a Mortgagor which is not a Principal Prepayment
in Full.
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“Custodial
Account” The custodial account or accounts created and maintained pursuant to
Section 3.10 in the name of a depository institution, as custodian for the
Holders of the Certificates. Any such account or accounts shall be an Eligible
Account.
“Custodial
Agreement” The custodial agreement, dated as of ___________ ___, 200_, among the
Depositor, the Master Servicer, the Trustee and ___________ as Custodian
relating to the Mortgage Loans identified in such custodial
agreement.
“Custodian”
___________.
“Cut-off
Date” __________ 1, 200_.
“Cut-off
Date Balance” The Aggregate Stated Principal Balance of the Mortgage Loans as of
the Cut-off Date.
“Defaulted
Mortgage Loan” means any Mortgage Loan as to which the Mortgagor has failed to
make unexcused three or more consecutive scheduled Monthly
Payments.
“Defaulting
Party” As defined in the Swap Agreement.
“Deficient
Valuation” With respect to any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the
then
outstanding indebtedness under the Mortgage Loan, or any reduction in the amount
of principal to be paid in connection with any scheduled Monthly Payment that
constitutes a permanent forgiveness of principal, which valuation or reduction
results from a proceeding under the Bankruptcy Code.
“Deficiency
Amount” With
respect to each Distribution Date prior to the final scheduled Distribution
Date
and the Class A-1W Certificates, an amount equal to the sum of (i) the excess,
if any, of (a) the amount of any Monthly Interest Distributable Amount on the
Class A-1W Certificates for that Distribution Date over (b) the Class A-1W
Certificates’ pro rata portion of the Available Distribution Amount for that
Distribution Date and (ii) the amount of any Realized Losses allocated to the
Class A-1W Certificates for that Distribution Date. With respect to the final
scheduled Distribution Date and the Class A-1W Certificates, an amount equal
to
the sum of (i) the excess, if any, of (a) the amount of any Monthly Interest
Distributable Amount on the Class A-1W Certificates for that Distribution Date
over (b) the Class A-1W Certificates’ pro rata portion of the Available
Distribution Amount for that Distribution Date and
(ii)
the outstanding Certificate Principal Balance of the Class A-1W Certificates
due
on such final scheduled Distribution Date to the extent not paid from the
Available Distribution Amount on that Distribution Date. For the Class A-1W
Certificates and any date on which the acceleration of the Certificates has
been
directed or consented to by the Certificateholders pursuant to the Agreement,
the amount required to pay the Certificate Principal Balances of the Class
A-1W
Certificates in full, together with accrued and unpaid interest thereon through
the date of payment of the Class A-1W Certificates.
“Definitive
Certificate” Any definitive, fully registered Certificate.
18
“Deleted
Mortgage Loan” A Mortgage Loan replaced or to be replaced with a Qualified
Substitute Mortgage Loan.
“Depositor”
Impac Secured Assets Corp., 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(5) of the
Uniform Commercial Code of the State of New York and a “clearing agency”
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended.
“Depository
Participant” A broker, dealer, bank or other financial institutions or other
Person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date” The 15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the related Distribution
Date.
“Disqualified
Organization” Any organization defined as a “disqualified organization” under
Section 860E(e)(5) of the Code, which includes any of the following: (i) the
United States, any State or political subdivision thereof, any possession of
the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for the Xxxxxxx Mac, a majority of its board of
directors is not selected by such governmental unit), (ii) a foreign government,
any international organization, or any agency or instrumentality of any of
the
foregoing, (iii) any organization (other than certain farmers’ cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed
by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code
on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Class R Certificate by such Person may
cause REMIC 1, REMIC 2 or REMIC 3 or any Person having an Ownership Interest
in
any Class of Certificates (other than such Person) to incur a liability for
any
federal tax imposed under the Code that would not otherwise be imposed but
for
the Transfer of an Ownership Interest in a Class R Certificate to such Person.
The terms “United States”, “State” and “international organization” shall have
the meanings set forth in Section 7701 of the Code or successor
provisions.
“Distribution
Date” The 25th day of any month, or if such 25th day is not a Business Day, the
Business Day immediately following such 25th day, commencing in __________
200_.
“Distribution
Report” The Asset-Backed Issuer Distribution Report pursuant to Section 13 or
15(d) of the Exchange Act.
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“Due
Date” The first day of the month of the related Distribution Date.
“Due
Period” With respect to any Distribution Date, the period commencing on the
second day of the month preceding the month of such Distribution Date (or,
with
respect to the first Due Period, the day following the Cut-off Date) and ending
on the first day of the month of the related Distribution Date.
“Eligible
Account” Any of (i) a segregated account maintained with a federal or state
chartered depository institution (A) the short-term obligations of which are
rated A-1+ or better by Standard & Poor’s and P-1 by Moody’s at the time of
any deposit therein or (B) insured by the FDIC (to the limits established by
such Corporation), the uninsured deposits in which account are otherwise secured
such that, as evidenced by an Opinion of Counsel (obtained by the Person
requesting that the account be held pursuant to this clause (ii)) delivered
to
the Trustee prior to the establishment of such account, the Certificateholders
will have a claim with respect to the funds in such account and a perfected
first priority security interest against any collateral (which shall be limited
to Permitted Investments, each of which shall mature not later than the Business
Day immediately preceding the Distribution Date next following the date of
investment in such collateral or the Distribution Date if such Permitted
Investment is an obligation of the institution that maintains the Certificate
Account or Custodial Account) securing such funds that is superior to claims
of
any other depositors or general creditors of the depository institution with
which such account is maintained, (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company subject to regulations regarding fiduciary funds on deposit similar
to
Title 12 of the Code of Federal Regulations Section 9.10(b), which, in either
case, has corporate trust powers, acting in its fiduciary capacity or (iii)
a
segregated account or accounts of a depository institution acceptable to the
Rating Agencies (as evidenced in writing by the Rating Agencies that use of
any
such account as the Custodial Account or the Certificate Account will not have
an adverse effect on the then-current ratings assigned to the Classes of the
Certificates then rated by the Rating Agencies). Eligible Accounts may bear
interest.
“Event
of
Default” One or more of the events described in Section 7.01.
“Excess
Proceeds” As defined in Section 3.22.
“Exchange
Act” The Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Extra
Principal Distribution Amount” With respect to any Distribution Date, the lesser
of (x) the Overcollateralization Deficiency Amount for such Distribution Date
and (y) the sum of (1) the Net Monthly Excess Cashflow Amount for such
Distribution Date and (2) amounts available from the Swap Agreement to pay
principal as provided in Section 4.01(g)(iii) hereof.
“Xxxxxx
Xxx” Xxxxxx Xxx (formerly, Federal National Mortgage Association) or any
successor thereto.
20
“FDIC”
Federal Deposit Insurance Corporation or any successor.
“Xxxxxxx
Mac” Federal Home Loan Mortgage Corporation or any successor.
“Final
Scheduled Payment Date” With respect to each Class of Certificates, the Payment
Date in ____________ 20__.
“Fitch
Ratings” Fitch, Inc., or its successor in interest.
“Initial
Certificate Principal Balance” With respect to each Class of Regular
Certificates, the Initial Certificate Principal Balance of such Class of
Certificates as set forth in the Preliminary Statement hereto, or with respect
to any single Certificate, the Initial Certificate Principal Balance as stated
on the face thereof.
“Initial
Certification” The initial certification delivered by the Custodian pursuant to
Section 2.02 of this Pooling and Servicing Agreement.
“Initial
Notional Amount” With respect to the Class C Certificate, the aggregate of the
initial Uncertificated Principal Balances of the REMIC 2 Regular Interests
(other than REMIC 2 Regular Interest IO and REMIC 2 Regular Interest P), or
with
respect to any single Certificate, the Initial Notional Amount as stated on
the
face thereof. The Class IO Interest will have an Initial Notional Balance equal
to the Uncertificated Notional Balance on REMIC 2 Regular Interest
IO.
“Insurance
Account” The account created and maintained pursuant to Section 4.10(b) of this
Agreement. The Insurance Account shall be an Eligible Account.
“Insurance
Policy” With respect to any Mortgage Loan, any insurance policy (including a PMI
Insurer Policy) which is required to be maintained from time to time under
this
Agreement in respect of such Mortgage Loan.
“Insurance
Proceeds” Proceeds paid in respect of the Mortgage Loans pursuant to any Primary
Hazard Insurance Policy, any title insurance policy or any other insurance
policy covering a Mortgage Loan, to the extent such proceeds are not applied
to
the restoration of the related Mortgaged Property or released to the Mortgagor
in accordance with the procedures that the Master Servicer would follow in
servicing mortgage loans held for its own account.
“Insured
Amount” Draws on the Certificate Guaranty Insurance Policy to cover related
Deficiency Amounts and Preference Amounts.
“Insurer
Default” An insurer default will occur in the event the Certificate Insurer
fails to make a payment under the Certificate Guaranty Insurance Policy or
if
certain events of bankruptcy or insolvency occur with respect to the Certificate
Insurer.
21
“Interest
Remittance Amount” For any Distribution Date, that portion of the Available
Distribution Amount for such Distribution Date that represents interest received
or advanced with respect to the Mortgage Loans less any Net Swap Payments or
Swap Termination Payments, not due to a Swap Provider Trigger Event owed to
the
Supplemental Interest Trust for payment to the Swap Provider.
“IRS”
The
Internal Revenue Service.
“Late
Collections” With respect to any Mortgage Loan, all amounts received during any
Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments
or
collections of Monthly Payments due but delinquent for a previous Due Period
and
not previously recovered.
“Letter
Agreement” The Letter Agreement, dated as of _________ ___, 200_, among the
Certificate Insurer and Impac Mortgage Holdings, Inc., including any amendments
and supplements thereto.
“LIBOR”
With respect to any Distribution Date and the Pass-Through Rates on the Offered
Certificates, the arithmetic mean of the London interbank offered rate
quotations of reference banks (which will be selected by the Trustee after
consultation with the Master Servicer) for one-month U.S. dollar deposits,
expressed on a per annum basis, determined in accordance with Section
1.02.
“LIBOR
Business Day” Any day other than (i) Saturday or a Sunday or (ii) a day on which
banking institutions in the city of London, England and New York City are
required or authorized by law to be closed.
“LIBOR
Rate Adjustment Date” With respect to each Distribution Date, the second LIBOR
Business Day immediately preceding the commencement of the related Accrual
Period.
“Liquidated
Mortgage Loan” As to any Distribution Date, any Mortgage Loan in respect of
which the Master Servicer has determined, in accordance with the servicing
procedures specified herein, as of the end of the related Prepayment Period,
that all Liquidation Proceeds which it expects to recover with respect to the
liquidation of the Mortgage Loan or disposition of the related REO Property
have
been recovered.
“Liquid
ation Expenses” Out-of-pocket expenses (exclusive of overhead) which are
incurred by or on behalf of the Master Servicer, or any Special Servicer on
the
Master Servicer’s behalf, in connection with the liquidation of any Mortgage
Loan and not recovered under any insurance policy, such expenses including,
without limitation, legal fees and expenses, any unreimbursed amount expended
(including, without limitation, amounts advanced to correct defaults on any
Mortgage Loan which is senior to such Mortgage Loan, amounts advanced to keep
current or pay off a Mortgage Loan that is senior to such Mortgage Loan and
disposition fees) respecting the related Mortgage Loan and any related and
unreimbursed expenditures for real estate property taxes or for property
restoration, preservation or insurance against casualty loss or
damage.
22
“Liquidation
Proceeds” Amounts (other than Insurance Proceeds) received by the Master
Servicer in connection with the taking of an entire Mortgaged Property by
exercise of the power of eminent domain or condemnation or in connection with
the liquidation of a defaulted Mortgage Loan through trustee’s sale, foreclosure
sale or otherwise, other than amounts received in respect of any REO
Property.
“Loan-to-Value
Ratio” As of any date, the fraction, expressed as a percentage, the numerator of
which is the current principal balance of the related Mortgage Loan at the
date
of determination and the denominator of which is the Collateral Value of the
related Mortgaged Property.
“Lost
Note Affidavit” With respect to any Mortgage Note, an original lost note
affidavit from the Sponsor stating that the original Mortgage Note was lost,
misplaced or destroyed, together with a copy of the related Mortgage
Note.
“Majority
Class C Certificateholder” The holder of a 50.01% or greater Percentage Interest
of the Class C Certificates.
“Marker
Rate”: With respect to the Class C Certificates and any Distribution Date, a per
annum rate equal to two (2) times the weighted average of the Uncertificated
REMIC 2 Pass-Through Rates for REMIC 2 Regular Interest A-1, REMIC 2 Regular
Interest A-1M, REMIC 2 Regular Interest A-1W, REMIC 2 Regular Interest A-2A,
REMIC 2 Regular Interest A-2B, REMIC 2 Regular Interest A-2C, REMIC 2 Regular
Interest A-2D, REMIC 2 Regular Interest M-1, REMIC 2 Regular Interest M-2,
REMIC
2 Regular Interest M-3, REMIC 2 Regular Interest M-4, REMIC 2 Regular Interest
M-5, REMIC 2 Regular Interest M-6, REMIC 2 Regular Interest M-7, REMIC 2 Regular
Interest M-8, REMIC 2 Regular Interest B and REMIC 2 Regular Interest ZZ, with
the rate on each such REMIC 2 Regular Interest (other than REMIC 2 Regular
Interest ZZ) subject to a cap equal to the lesser of (i) LIBOR plus the related
Certificate Margin and (ii) the related Net WAC Rate for the purpose of this
calculation for such Distribution Date and with the rate on REMIC 2 Regular
Interest ZZ subject to a cap of zero for the purpose of this
calculation.
“Master
Servicer” Impac Funding Corporation, or any successor master servicer appointed
as herein provided.
“Master
Servicer Prepayment Charge Payment Amount” The amounts payable by the Master
Servicer in respect of any waived Prepayment Charges pursuant to Section 2.03,
and any amount paid to the Trust Fund by any Person to remedy any breach of any
representation, warranty of covenant made with respect to the Prepayment Charges
to the extent the Trust Fund, as assignee, is the beneficiary of such
representation, warranty or covenant.
23
“Master
Servicing Fees” As to each Mortgage Loan, an amount, payable out of any payment
of interest on the Mortgage Loan, equal to interest at the Master Servicing
Fee
Rate on the Stated Principal Balance of such Mortgage Loan as of the Due Date
in
the calendar month preceding the month in which the payment of the Master
Servicing Fee is due (alternatively, in the event such payment of interest
accompanies a Principal Prepayment in full made by the Mortgagor, interest
for
the number of days covered by such payment of interest). The Master Servicing
Fee consists of servicing compensation payable to the Master Servicer in respect
of its master servicing responsibilities.
“Master
Servicing Fee Rate” With respect to each Mortgage Loan, the per annum rate of
____%.
“Maximum
Uncertificated Accrued Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (a) accrued interest at the Uncertificated
REMIC 2 Pass-Through Rate applicable to REMIC 2 Regular Interest ZZ for such
Distribution Date on a balance equal to the excess of (i) the Uncertificated
Principal Balance of REMIC 2 Regular Interest ZZ over (ii) the REMIC 2
Overcollateralized Amount, in each case for such Distribution Date over (b)
the
sum of the Uncertificated Accrued Interest on REMIC 2 Regular Interest A-1,
REMIC 2 Regular Interest A-1M, REMIC 2 Regular Interest A-1W, REMIC 2 Regular
Interest A-2A, REMIC 2 Regular Interest A-2B, REMIC 2 Regular Interest A-2C,
REMIC 2 Regular Interest A-2D, REMIC 2 Regular Interest M-1, REMIC 2 Regular
Interest M-2, REMIC 2 Regular Interest M-3, REMIC 2 Regular Interest M-4, REMIC
2 Regular Interest M-5, REMIC 2 Regular Interest M-6, REMIC 2 Regular Interest
M-7, REMIC 2 Regular Interest M-8 and REMIC 2 Regular Interest B, with the
rate
on each such REMIC 2 Regular Interest subject to a cap equal to the lesser
of
(i) LIBOR plus the related Certificate Margin and (ii) the related Net WAC
Rate.
“MERS”
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System” The system of recording transfers of Mortgages electronically maintained
by MERS.
“MIN”
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
“MOM
Loan” With respect to any Mortgage Loan, MERS acting as the mortgagee of such
Mortgage Loan, solely as nominee for the originator of such Mortgage Loan and
its successors and assigns, at the origination thereof.
“Monthly
Interest Distributable Amount” For any Distribution Date and each Class of
Offered Certificates and Class C Certificates, the amount of interest accrued
during the related Accrual Period at the related Pass-Through Rate on the
Certificate Principal Balance of such Class immediately prior to such
Distribution Date, in each case, reduced by any Net Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls (allocated to such Certificate
as
set forth in Section 1.03). The Monthly Interest Distributable Amount on the
Offered Certificates will be calculated on the basis of the actual number of
days in the related Accrual Period and a 360-day year. The Monthly Interest
Distributable Amount on the Class C Certificates, will be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
24
“Monthly
Payment” With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by a Mortgagor
from time to time under the related Mortgage Note as originally executed (after
adjustment, if any, for Deficient Valuations occurring prior to such Due Date,
and after any adjustment by reason of any bankruptcy or similar proceeding
or
any moratorium or similar waiver or grace period).
“Moody’s”
Xxxxx’x Investors Service, Inc., or its successor in interest.
“Mortgage”
The mortgage, deed of trust or any other instrument securing the Mortgage
Loan.
“Mortgage
File” The mortgage documents listed in Section 2.01 pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement and the Custodial Agreement; provided, that
whenever the term “Mortgage File” is used to refer to documents actually
received by the Custodian, such term shall not be deemed to include such
additional documents required to be added unless they are actually so
added.
“Mortgage
Loan” Each of the mortgage loans, transferred and assigned to the Trustee
pursuant to Section 2.01, 2.04 or 2.06 and from time to time held in the Trust
Fund (including any Qualified Substitute Mortgage Loans), the Mortgage Loans
so
transferred, assigned and held being identified in the Mortgage Loan Schedule.
As used herein, the term “Mortgage Loan” includes the related Mortgage Note and
Mortgage.
“Mortgage
Loan Purchase Agreement” The Mortgage Loan Purchase Agreement dated as of
___________ ___, 200_, among Impac Funding Corporation, as sponsor, Impac
Mortgage Holdings, Inc., as guarantor, and the Depositor as purchaser, and
all
amendments thereof and supplements thereto.
“Mortgage
Loan Schedule” As of any date of determination, the schedule of Mortgage Loans
included in the Trust Fund. The schedule of Mortgage Loans with accompanying
information transferred on the Closing Date to the Trustee (or the Custodian)
as
part of the Trust Fund for the Certificates, attached hereto as Exhibit H,
as
amended from time to time to reflect the addition of Qualified Substitute
Mortgage Loans (for purposes of the Trustee (or the Custodian) pursuant to
Section 2.02, in computer-readable form as delivered to the Trustee (or to
the
Custodian, as its agent)), which list shall set forth the following information
with respect to each Mortgage Loan:
(i) the
loan
number and name of the Mortgagor;
(ii) xxx
xxxxxx xxxxxxx, xxxx, xxxxx and zip code of the Mortgaged Property;
25
(iii) (A)
the
original term to maturity and (B) if such Mortgage Loan is a Balloon Loan,
the
amortization term thereof;
(iv) the
original principal balance and the original Mortgage Rate;
(v) the
first
payment date;
(vi) whether
the Mortgage Loan is a Balloon Mortgage Loan or a Mortgage Loan the terms of
which do not provide for a Balloon Payment;
(vii) the
type
of Mortgaged Property;
(viii) the
Monthly Payment in effect as of the Cut-off Date;
(ix) the
principal balance as of the Cut-off Date;
(x) the
Mortgage Rate as of the Cut-off Date;
(xi) the
occupancy status;
(xii) the
purpose of the Mortgage Loan;
(xiii) the
Collateral Value of the Mortgaged Property;
(xiv) the
original term to maturity;
(xv) the
paid-through date of the Mortgage Loan;
(xvi) the
Master Servicing Fee Rate;
(xvii) the
Sub-Servicing Fee Rate;
(xviii) the
Net
Mortgage Rate for such Mortgage Loan;
(xix) whether
such Mortgage Loan is a PMI Mortgage Loan and, if so, the related PMI Insurer
Fee Rate;
(xx) whether
the Mortgage Loan is covered by a private mortgage insurance policy or an
original certificate of private mortgage insurance;
(xxi) the
documentation type; and
(xxii) the
type
and term of the related Prepayment Charge, if any.
The
Mortgage Loan Schedule may be in the form of more than one schedule,
collectively setting forth all of the information required.
26
“Mortgage
Note” The note or other evidence of the indebtedness of a Mortgagor under a
Mortgage Loan.
“Mortgage
Rate” With respect to any Mortgage Loan, the annual rate at which interest
accrues on such Mortgage Loan, as adjusted from time to time in accordance
with
the provisions of the Mortgage Note.
“Mortgaged
Property” The underlying property securing a Mortgage Loan.
“Mortgagor”
The obligor or obligors on a Mortgage Note.
“Net
Collections” With respect to any Corrected Mortgage Loan, an amount equal to all
payments on account of interest and principal on such Mortgage
Loan.
“Net
Liquidation Proceeds” With respect to any Liquidated Mortgage Loan or any other
disposition of related Mortgaged Property (including REO Property) the related
Liquidation Proceeds net of Advances, Servicing Advances, Master Servicing
Fees,
Sub-Servicing Fees and any other accrued and unpaid servicing fees received
and
retained in connection with the liquidation of such Mortgage Loan or Mortgaged
Property.
“Net
Mortgage Rate” With respect to each Mortgage Loan Due Date, a per annum rate of
interest equal to the then-applicable Mortgage Rate on such Mortgage Loan less
the sum of the Master Servicing Fee Rate and the Sub-Servicing Fee Rate, and
with respect to the PMI Mortgage Loans, the PMI Insurer Fee Rate.
“Net
Monthly Excess Cashflow” With respect to each Distribution Date, the sum of (a)
any Overcollateralization Release Amount for such Distribution Date and (b)
the
excess of (x) Available Distribution Amount and Insured Amount, if any, for
such
Distribution Date over (y) the sum for such Distribution Date of (A) the Monthly
Interest Distributable Amounts for the Offered Certificates and (B) the
Principal Remittance Amount.
“Net
Prepayment Interest Shortfall” With respect to any Distribution Date, the
excess, if any, of any Prepayment Interest Shortfalls for such date over the
related Compensating Interest.
“Net
Swap
Payment” With respect to each Distribution Date, the net payment required to be
made pursuant to the terms of the Swap Agreement by either the Swap Provider
or
the Swap Administrator, which net payment shall not take into account any Swap
Termination Payment.
“Net
WAC
Rate” With
respect to the Offered Certificates and any Distribution Date, a per annum
rate
equal to the excess, if any, of (A) a per annum rate equal to the weighted
average of the Net Mortgage Rates of the Mortgage Loans as of the first day
of
the month preceding the month in which such Distribution Date occurs over (B)
the sum of (1) a per annum rate equal to the Net Swap Payment payable to the
Swap Provider on such Distribution Date, divided by the outstanding Stated
Principal Balance of the Mortgage Loans as of the first day of the calendar
month preceding the month in which the Distribution Date occurs, multiplied
by
12, and (2) any Swap Termination Payment not due to a Swap Provider Trigger
Event payable to the Swap Provider on such Distribution Date, divided by the
outstanding Stated Principal Balance of the Mortgage Loans as of the first
day
of the calendar month preceding the month in which the Distribution Date occurs,
expressed as a per annum rate, multiplied by 12, less (C) in the case of the
Class A-1W Certificates only, the Policy Premium Rate.
The Net
WAC Rate will be adjusted to an effective rate reflecting the accrual of
interest on an actual/360 basis.
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“Net
WAC
Shortfall Amount” If on any Distribution Date the Pass-Through Rate for the
Offered Certificates is limited to the Net WAC Rate, the sum of (i) the excess
of (a) the amount of interest such Offered Certificates would have been entitled
to receive on such Distribution Date if the Net WAC Rate would not have been
applicable to such certificates over (b) the amount of interest accrued on
such
Classes at the applicable Net WAC Rate plus (ii) the related Net WAC Shortfall
Amount from the prior Distribution Date not previously distributed together
with
interest thereon at the related Pass-Through Rate for the most recently ended
Accrual Period.
“Net
WAC
Shortfall Reserve Fund” A reserve fund established by the Trustee for the
benefit of the Holders of the Offered Certificates, and funded on the Closing
Date by or on behalf of the Depositor with $5,000. The Net WAC Shortfall Reserve
Fund is an “outside reserve fund” within the meaning of Treasury regulation
Section 1.860G-2(h), which is not an asset of any REMIC, ownership of which
is
evidenced by the Class C Certificates, and which is established and maintained
pursuant to Section 4.08.
“Net
WAC
Shortfall Reserve Fund Deposit” With respect to the Net WAC Shortfall Reserve
Fund, an amount equal to $5,000, which the Depositor shall fund initially
pursuant to Section 4.08 hereof.
“Nonrecoverable
Advance” Any Advance or Servicing Advance previously made or proposed to be made
in respect of a Mortgage Loan which, in the good faith judgment of the Master
Servicer, will not or, in the case of a proposed Advance or Servicing Advance,
would not be ultimately recoverable from related Late Collections, Insurance
Proceeds, Liquidation Proceeds or REO Proceeds. The determination by the Master
Servicer that it has made a Nonrecoverable Advance or that any proposed Advance
or Servicing Advance would constitute a Nonrecoverable Advance, shall be
evidenced by a certificate of a Servicing Officer delivered to the Depositor
and
the Trustee.
“Non-United
States Person” Any Person other than a United States Person.
“Offered
Certificates” The Class A Certificates and the Subordinate
Certificates.
“Officers’
Certificate” A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president and by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Depositor, the Sponsor, the Master Servicer or of any Sub-Servicer and
delivered to the Depositor and Trustee.
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“One
Month LIBOR” The London interbank offered rate for one-month United States
dollar deposits, determined as described in Section 1.02 of this
Agreement.
“Opinion
of Counsel” A written opinion of counsel, who may be counsel for the Depositor,
the Sponsor, or the Master Servicer, reasonably acceptable to the Trustee;
except that any opinion of counsel relating to (a) the qualification of any
account required to be maintained pursuant to this Agreement as an Eligible
Account, (b) the qualification of REMIC 1, REMIC 2 or REMIC 3 as REMICs, (c)
compliance with the REMIC Provisions or (d) resignation of the Master Servicer
pursuant to Section 6.04 must be an opinion of counsel who (i) is in fact
independent of the Depositor and the Master Servicer, (ii) does not have any
direct financial interest or any material indirect financial interest in the
Depositor or the Master Servicer or in an affiliate of either and (iii) is
not
connected with the Depositor or the Master Servicer as an officer, employee,
director or person performing similar functions.
“Optional
Termination Date” The first Distribution Date on which the Master Servicer may
opt to terminate the Trust Fund pursuant to Section 9.01.
“OTS”
Office of Thrift Supervision or any successor.
“Outstanding
Mortgage Loan” As to any Due Date, a Mortgage Loan (including an REO Property)
which was not the subject of a Principal Prepayment in Full, Cash Liquidation
or
REO Disposition and which was not purchased prior to such Due Date pursuant
to
Sections 2.02, 2.04 or 3.14.
“Overcollateralized
Amount” With respect to any Distribution Date, the amount, if any, by which (i)
the Aggregate Stated Principal Balance of the Mortgage Loans (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period and any Realized Losses on the
Mortgage Loans), exceeds (ii) the aggregate Certificate Principal Balance of
the
Offered Certificates and the Class P Certificates as of such Distribution Date
(after giving effect to distributions to be made on such Distribution
Date).
“Overcollateralization
Deficiency Amount” With respect to any Distribution Date, the amount, if any, by
which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (after giving effect to distributions in
respect of the Principal Remittance Amount on such Distribution
Date).
“Overcollateralization
Floor” With respect to any Distribution Date, ____% of the Cut-off Date
Balance.
“Overcollateralization
Release Amount” With respect to any Distribution Date, the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the excess,
if
any, of (i) the Overcollateralized Amount for such Distribution Date (assuming
that 100% of the Principal Remittance Amount is applied as a principal payment
on such Distribution Date) over (ii) the Overcollateralization Target Amount
for
such Distribution Date.
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“Overcollateralization
Target Amount” With respect to any Distribution Date prior to the Stepdown Date,
____% of the Cut-off Date Balance. With respect to any Distribution Date on
or
after the Stepdown Date, the greater of (x) ____% of the aggregate Stated
Principal Balance of the Mortgage Loans and (y) the Overcollateralization Floor;
provided, however, that if a Trigger Event is in effect on any Distribution
Date, the Overcollateralization Target Amount will be equal to the
Overcollateralization Target Amount on the prior Distribution Date.
“Ownership
Interest” As to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
“Pass-Through
Rate” With respect to any Distribution Date and the Offered Certificates, the
lesser of (x) One-Month LIBOR plus the related Certificate Margin and (y) the
Net WAC Rate. With respect to any Distribution Date and the Class C
Certificates, a per annum rate equal to the percentage equivalent of a fraction,
the numerator of which is (x) the sum of the amounts calculated pursuant to
clauses (A) through (S) below, and the denominator of which is (y) the aggregate
of the Uncertificated Principal Balances of the REMIC 2 Regular Interests.
For
purposes of calculating the Pass-Through Rate for the Class C Certificates,
the
numerator is equal to the sum of the following components:
(A) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest AA minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest AA;
(B) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest A-1 minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest A-1;
(C) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest A-1M
minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest A-1M;
(D) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest A-1W
minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest A-1W;
(E) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest A-2A
minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest A-2A;
(F) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest A-2B
minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest A-2B;
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(G) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest A-2C
minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest A-2C;
(H) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest A-2D
minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest A-2D;
(I) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest M-1 minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest M-1;
(J) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest M-2 minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest M-2;
(K) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest M-3 minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest M-3;
(L) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest M-4 minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest M-4;
(M) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest M-5 minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest M-5;
(N) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest M-6 minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest M-6;
(O) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest M-7 minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest M-7;
(P) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest M-8 minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest M-8;
(Q) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest B minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest B;
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(R) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest ZZ minus
the Marker Rate, applied to an amount equal to the Uncertificated Principal
Balance of REMIC 2 Regular Interest ZZ; and
(S) 100%
of the interest on REMIC 2 Regular Interest P.
The
Class
P Certificates and the Class R Certificates will not accrue interest and
therefore will not have a Pass-Through Rate. The Class IO Interest will not
have
a Pass-Through Rate or a Certificate Principal Balance, but will be entitled
to
100% of the amounts distributed on REMIC 2 Regular Interest IO.
“Payment
Date” The 25th
day of
each month, or if such day is not a Business Day, then the next Business Day,
beginning __________ 20__.
“Percentage
Interest” With respect to any Regular Certificate, the undivided percentage
ownership interest in the related Class evidenced by such Certificate, which
percentage ownership interest shall be equal to the Initial Certificate
Principal Balance thereof divided by the aggregate Initial Certificate Principal
Balance of all of the Certificates of the same Class. With respect to any Class
R Certificate, the interest in distributions to be made with respect to such
Class evidenced thereby, expressed as a percentage, as stated on the face of
each such Certificate.
“Permitted
Investment” One or more of the following:
(i) obligations
of or guaranteed as to principal and interest by the United States or any agency
or instrumentality thereof when such obligations are backed by the full faith
and credit of the United States;
(ii) repurchase
agreements on obligations specified in clause (i) maturing not more than one
month from the date of acquisition thereof, provided that the unsecured
obligations of the party agreeing to repurchase such obligations are at the
time
rated by each Rating Agency in its highest short-term rating
available;
(iii) federal
funds, certificates of deposit, demand deposits, time deposits and bankers’
acceptances (which shall each have an original maturity of not more than 90
days
and, in the case of bankers’ acceptances, shall in no event have an original
maturity of more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository institution or
trust
company incorporated under the laws of the United States or any state thereof
or
of any domestic branch of a foreign depository institution or trust company;
provided that the debt obligations of such depository institution or trust
company (or, if the only Rating Agency is Standard & Poor’s, in the case of
the principal depository institution in a depository institution holding
company, debt obligations of the depository institution holding company) at
the
date of acquisition thereof have been rated by each Rating Agency in its highest
short-term rating available; and provided further that, if the only Rating
Agency is Standard & Poor’s and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations of
such
subsidiary are not separately rated, the applicable rating shall be that of
the
bank holding company; and, provided further that, if the original maturity
of
such short-term obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the short-term rating of
such
institution shall be A-1+ in the case of Standard & Poor’s if Standard &
Poor’s is the Rating Agency;
32
(iv) commercial
paper (having original maturities of not more than 365 days) of any corporation
incorporated under the laws of the United States or any state thereof which
on
the date of acquisition has been rated by Moody’s and Standard & Poor’s in
their highest short-term ratings available; provided that such commercial paper
shall have a remaining maturity of not more than 30 days;
(v) a
money
market fund or a qualified investment fund rated by Moody’s in its highest
long-term ratings available and rated AAAm or AAAm-G by Standard & Poor’s,
including any such funds for which [NAME OF THE TRUSTEE]. or any affiliate
thereof serves as an investment advisor, manager, administrator, shareholder,
servicing agent, and/or custodian or sub-custodian; and
(vi) other
obligations or securities that are acceptable to each Rating Agency as a
Permitted Investment hereunder and will not reduce the rating assigned to any
Class of Certificates by such Rating Agency below the lower of the then-current
rating or the rating assigned to such Certificates as of the Closing Date by
such Rating Agency, as evidenced in writing; provided,
however,
that no
instrument shall be a Permitted Investment if it represents, either (1) the
right to receive only interest payments with respect to the underlying debt
instrument or (2) the right to receive both principal and interest payments
derived from obligations underlying such instrument and the principal and
interest payments with respect to such instrument provide a yield to maturity
greater than 120% of the yield to maturity at par of such underlying
obligations.
“Permitted
Transferee” Any transferee of a Residual Certificate other than a Disqualified
Organization, a Non-United States Person or an “electing large partnership” (as
defined in Section 775 of the Code).
“Person”
Any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“PMI
Insurer” Radian Guaranty, Inc., or its successors or assigns.
“PMI
Insurer Fee Rate” With respect to each PMI Mortgage Loan, the per annum rate
payable to the PMI Insurer under the PMI Insurer Policy.
“PMI
Insurer Policy” The lender-paid primary mortgage insurance policy issued by the
PMI Insurer in accordance with a __________, 200_ letter between the Sponsor
and
the PMI Insurer.
33
“PMI
Mortgage Loan” Any mortgage loan covered by the PMI Insurer Policy.
“Policy
Premium” The premium set forth in the Certificate Guaranty Insurance
Policy.
“Policy
Premium Rate” The rate per annum set forth in the Letter Agreement.
“Preference
Amount” With respect to the Class A-1W Certificates, any amount previously
distributed to a Class A-1W Certificateholder that is recoverable and sought
to
be recovered as a voidable preference by a trustee in bankruptcy pursuant to
the
United States Bankruptcy Code, as amended from time to time, in accordance
with
a final nonappealable order of a court having competent
jurisdiction.
“Prepayment
Assumption” As defined in the Prospectus Supplement.
“Prepayment
Charge” With respect to any Mortgage Loan, the charges or premiums, if any, due
in connection with a full or partial prepayment of such Mortgage Loan in
accordance with the terms thereof (other than any Master Servicer Prepayment
Charge Payment Amount).
“Prepayment
Interest Shortfall” As to any Distribution Date and any Mortgage Loan (other
than a Mortgage Loan relating to an REO Property) that was the subject of (a)
a
Principal Prepayment in Full during the related Prepayment Period, an amount
equal to the excess of one month’s interest at the Net Mortgage Rate on the
Stated Principal Balance of such Mortgage Loan over the amount of interest
(adjusted to the Net Mortgage Rate) paid by the Mortgagor for such Prepayment
Period to the date of such Principal Prepayment in Full or (b) a Curtailment
during the prior calendar month, an amount equal to one month’s interest at the
Net Mortgage Rate on the amount of such Curtailment.
“Prepayment
Period” As to any Distribution Date, the calendar month preceding the month in
which such Distribution Date occurs.
“Primary
Hazard Insurance Policy” Each primary hazard insurance policy required to be
maintained pursuant to Section 3.13.
“Primary
Insurance Policy” Any primary policy of mortgage guaranty insurance including
the PMI Insurer Policy, or any replacement policy therefor.
“Principal
Distribution Amount” With respect to any Distribution Date, an amount equal to
the sum of the Basic Principal Distribution Amount plus the Extra Principal
Distribution Amount.
“Principal
Prepayment” Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of
prepayment.
34
“Principal
Prepayment in Full” Any Principal Prepayment made by a Mortgagor of the entire
unpaid principal balance of the Mortgage Loan.
“Principal
Remittance Amount” With respect to any Distribution Date, the sum of (i) each
scheduled payment of principal collected or advanced on the Mortgage Loans
by
the Master Servicer that were due during the related Due Period, (ii) the
principal portion of all partial and full Principal Prepayments of the Mortgage
Loans applied by the Master Servicer during the related Prepayment Period,
(iii)
the principal portion of all Net Liquidation Proceeds, REO Proceeds, Insurance
Proceeds, and Subsequent Recoveries received during the related Prepayment
Period, (iv) the principal portion of proceeds of Mortgage Loan purchases made
pursuant to Section 2.02, 2.04 or 3.14, in each case received or made during
the
related Prepayment Period, (v) the principal portion of any related Substitution
Adjustments deposited in the Custodial Account during the related Prepayment
Period, (vi) any amounts required to be reimbursed to the Supplemental Interest
Trust as provided in the Agreement, (vii) any Net Swap Payments or Swap
Termination Payments not due to a Swap Provider Trigger Event owed to the
Supplemental Interest Trust for payment to the Swap Provider, to the extent
not
paid from the Interest Remittance Amount, (viii) any portion of the Insured
Amount for such Distribution Date representing the amount of any Realized Losses
allocated to the Class A-1W Certificates for that Distribution Date and (ix)
on
the Distribution Date on which the Trust Fund is to be terminated pursuant
to
Section 9.01, the principal portion of the termination price received from
the
Master Servicer in connection with a termination of the Trust Fund to occur
on
such Distribution Date.
“Prospectus
Supplement” That certain Prospectus Supplement dated ____________ ___, 200_
relating to the public offering of the Offered Certificates.
“Purchase
Price” With respect to any Mortgage Loan (or REO Property) required to be
purchased pursuant to Section 2.02, 2.04 or 3.14, an amount equal to the sum
of
(i) 100% of the Stated Principal Balance thereof, (ii) unpaid accrued interest
(or REO Imputed Interest) at the applicable Net Mortgage Rate on the Stated
Principal Balance thereof outstanding during each Due Period that such interest
was not paid or advanced, from the date through which interest was last paid
by
the Mortgagor or advanced and distributed to Certificateholders together with
unpaid Master Servicing Fees, Sub-Servicing Fees and, if such Mortgage Loan
is a
PMI Mortgage Loan, fees due the PMI Insurer at the PMI Insurer Fee Rate, from
the date through which interest was last paid by the Mortgagor, in each case
to
the first day of the month in which such Purchase Price is to be distributed,
plus (iii) the aggregate of all Advances and Servicing Advances made in respect
thereof that were not previously reimbursed and plus (iv) any costs and damages
incurred by the Trust Fund in connection with any violation by such Mortgage
Loan of any predatory-lending law.
“Qualified
Insurer” Any insurance company duly qualified as such under the laws of the
state or states in which the related Mortgaged Property or Mortgaged Properties
is or are located, duly authorized and licensed in such state or states to
transact the type of insurance business in which it is engaged and approved
as
an insurer by the Master Servicer, so long as the claims paying ability of
which
is acceptable to the Rating Agencies for pass-through certificates having the
same rating as the Certificates rated by the Rating Agencies as of the Closing
Date.
35
“Qualified
Substitute Mortgage Loan” A Mortgage Loan substituted by the Depositor for a
Deleted Mortgage Loan which must, on the date of such substitution, as confirmed
in an Officers’ Certificate of the Sponsor delivered to the Trustee, (i) have an
outstanding principal balance, after deduction of the principal portion of
the
monthly payment due in the month of substitution (or in the case of a
substitution of more than one Mortgage Loan for a Deleted Mortgage Loan, an
aggregate outstanding principal balance, after such deduction), not in excess
of
the Stated Principal Balance of the Deleted Mortgage Loan (the amount of any
shortfall to be paid to the Master Servicer for deposit in the Custodial Account
in the month of substitution); (ii) have a Mortgage Rate and a Net Mortgage
Rate
no lower than and not more than 1% per annum higher than the Mortgage Rate
and
Net Mortgage Rate, respectively, of the Deleted Mortgage Loan as of the date
of
substitution; (iii) have a Loan-to-Value Ratio at the time of substitution
no
higher than that of the Deleted Mortgage Loan at the time of substitution;
(iv)
have a remaining term to stated maturity not greater than (and not more than
one
year less than) that of the Deleted Mortgage Loan; (v) comply with each
representation and warranty set forth in Section 2.04 hereof; and, (vi) comply
with each representation and warranty set forth in the Mortgage Loan Purchase
Agreement (other than representations (xiv), (xvi), (xxix) and (xxxiii) through
(xli).
“Rating
Agency” Standard & Poor’s or Moody’s and each of their successors. If such
agencies and their successors are no longer in existence, “Rating Agency” shall
be such nationally recognized statistical rating agency, or other comparable
Person, designated by the Depositor, notice of which designation shall be given
to the Trustee and Master Servicer. References herein to the two highest long
term debt rating of a Rating Agency shall mean “AA” or better in the case of
Standard & Poor’s and “Aa2” or better in the case of Moody’s and references
herein to the highest short-term debt rating of a Rating Agency shall mean
“A-1+” in the case of Standard & Poor’s and “P-1” in the case of Moody’s,
and in the case of any other Rating Agency such references shall mean such
rating categories without regard to any plus or minus.
“Realized
Loss” With respect to each Mortgage Loan or REO Property as to which a Cash
Liquidation or REO Disposition has occurred, an amount (not less than zero)
equal to (i) the Stated Principal Balance of the Mortgage Loan as of the date
of
Cash Liquidation or REO Disposition, plus (ii) interest (and REO Imputed
Interest, if any) at the Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced to Certificateholders up to the date of
the
Cash Liquidation or REO Disposition on the Stated Principal Balance of such
Mortgage Loan outstanding during each Due Period that such interest was not
paid
or advanced, minus (iii) the proceeds, if any, received during the month in
which such Cash Liquidation or REO Disposition occurred, to the extent applied
as recoveries of interest at the Net Mortgage Rate and to principal of the
Mortgage Loan, net of the portion thereof reimbursable to the Master Servicer
or
any Sub-Servicer with respect to related Advances or Servicing Advances not
previously reimbursed. With respect to each Mortgage Loan which has become
the
subject of a Deficient Valuation, the difference between the principal balance
of the Mortgage Loan outstanding immediately prior to such Deficient Valuation
and the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation.
36
“Record
Date” With respect to the Class C Certificates and any Offered Certificates
which are not Book-Entry Certificates and each Distribution Date, the last
Business Day of the month immediately preceding the month of the related
Distribution Date. With respect to each Distribution Date and any Offered
Certificates which are Book-Entry Certificates, the Business Day prior to such
Distribution Date.
“Regular
Certificate” Any of the Certificates other than a Residual
Certificate.
“Regulation
AB” Subpart 229,1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Relief
Act” The Servicemembers Relief Act, as amended, and similar legislation or
regulations.
“Relief
Act Interest Shortfall” With respect to any Distribution Date, for any Mortgage
Loan with respect to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended Due Period as a result of the
application of the Relief Act, the amount by which (i) interest collectible
on
such Mortgage Loan during such Due Period is less than (ii) one month’s interest
on the Stated Principal Balance of such Mortgage Loan at the Loan Rate for
such
Mortgage Loan before giving effect to the application of the Relief
Act.
“REMIC”
A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
“REMIC
1”
The segregated pool of assets subject hereto (exclusive of the Net WAC Shortfall
Reserve Fund and the Swap Account) with respect to which a REMIC election is
to
be made, conveyed in trust to the Trustee, for the benefit of the Holders of
the
REMIC 1 Regular Interests and the Holders of the Class R Certificates (as
holders of the Class R-1 Interest), consisting of: (i) each Mortgage Loan
(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 Mortgage Loans (exclusive of any
prepayment fees and late payment charges received on the Mortgage Loans),
together with all documents included in the related Mortgage File, subject
to
Section 2.01; (ii) such funds or assets as from time to time are deposited
in
the Custodial Account or the Certificate Account and belonging to the Trust
Fund; (iii) any REO Property; (iv) the Primary Hazard Insurance Policies, if
any, the Primary Insurance Policies, if any, and all other Insurance Policies
with respect to the Mortgage Loans; (v) [reserved]; and (vi) the Depositor’s
interest in respect of the representations and warranties made by the Sponsor
in
the Mortgage Loan Purchase Agreement as assigned to the Trustee pursuant to
Section 2.04 hereof.
37
“REMIC
1
Regular Interest”: Any of the 120 separate non-certificated beneficial ownership
interests in REMIC 1 issued hereunder and designated as a “regular interest” in
REMIC 1. Each REMIC 1 Regular Interest shall accrue interest at the related
Uncertificated REMIC 1 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
2
Regular Interest AA”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest AA shall accrue interest at the related
Uncertificated REMIC 2 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
2
Regular Interest A-1”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest A-1 shall accrue interest at the related
Uncertificated REMIC 2 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
2
Regular Interest A-1M”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest A-1M shall accrue interest at
the
related Uncertificated REMIC 2 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
2
Regular Interest A-1W”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest A-1W shall accrue interest at
the
related Uncertificated REMIC 2 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
2
Regular Interest A-2A”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest A-2A shall accrue interest at
the
related Uncertificated REMIC 2 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.
38
“REMIC
2
Regular Interest A-2B”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest A-2B shall accrue interest at
the
related Uncertificated REMIC 2 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
2
Regular Interest A-2C”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest A-2C shall accrue interest at
the
related Uncertificated REMIC 2 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
2
Regular Interest A-2D”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a Regular
Interest in REMIC 2. REMIC 2 Regular Interest A-2D shall accrue interest at
the
related Uncertificated REMIC 2 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
2
Regular Interest M-1”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest M-1 shall accrue interest at the related
Uncertificated REMIC 2 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
2
Regular Interest M-2”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest M-2 shall accrue interest at the related
Uncertificated REMIC 2 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
2
Regular Interest M-3”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest M-3 shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to any Prepayment Charges relating to the Mortgage Loans collected
by the Master Servicer and to a distribution 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
2
Regular Interest M-4”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest M-4 shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to any Prepayment Charges relating to the Mortgage Loans collected
by the Master Servicer and to a distribution 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.
39
“REMIC
2
Regular Interest M-5”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest M-5 shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to any Prepayment Charges relating to the Mortgage Loans collected
by the Master Servicer and to a distribution 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
2
Regular Interest M-6”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest M-6 shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to any Prepayment Charges relating to the Mortgage Loans collected
by the Master Servicer and to a distribution 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
2
Regular Interest M-7”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest M-7 shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to any Prepayment Charges relating to the Mortgage Loans collected
by the Master Servicer and to a distribution 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
2
Regular Interest M-8”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest M-8 shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to any Prepayment Charges relating to the Mortgage Loans collected
by the Master Servicer and to a distribution 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
2
Regular Interest B”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest B shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to any Prepayment Charges relating to the Mortgage Loans collected
by the Master Servicer and to a distribution 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.
40
“REMIC
2
Regular Interest IO”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest IO shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time and shall
not be entitled to any distributions of principal.
“REMIC
2
Regular Interest P”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest P shall accrue interest at the related
Uncertificated REMIC 2 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
2
Regular Interest ZZ”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. REMIC 2 Regular Interest ZZ shall accrue interest at the related
Uncertificated REMIC 2 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
2
Regular Interests”: REMIC 2 Regular Interest AA, REMIC 2 Regular Interest A-1,
REMIC 2 Regular Interest A-1M, REMIC 2 Regular Interest A-1W, REMIC 2 Regular
Interest A-2A, REMIC 2 Regular Interest A-2B, REMIC 2 Regular Interest A-2C,
REMIC 2 Regular Interest A-2D, REMIC 2 Regular Interest M-1, REMIC 2 Regular
Interest M-2, REMIC 2 Regular Interest M-3, REMIC 2 Regular Interest M-4, REMIC
2 Regular Interest M-5, REMIC 2 Regular Interest M-6, REMIC 2 Regular Interest
M-7, REMIC 2 Regular Interest M-8, REMIC 2 Regular Interest B, REMIC 2 Regular
Interest ZZ, REMIC 2 Regular Interest IO and REMIC 2 Regular Interest
P.
“REMIC
2
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the Aggregate Stated Principal Balance
of
the Mortgage Loans and related REO Properties then outstanding and (ii) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest AA minus
the Marker Rate, divided by (b) 12.
“REMIC
2
Overcollateralized Amount”: With respect to any date of determination, (i) 1% of
the aggregate Uncertificated Principal Balances of REMIC 2 Regular Interest
AA,
REMIC 2 Regular Interest A-1, REMIC 2 Regular Interest A-1M, REMIC 2 Regular
Interest A-1W, REMIC 2 Regular Interest A-2A, REMIC 2 Regular Interest A-2B,
REMIC 2 Regular Interest A-2C, REMIC 2 Regular Interest A-2D, REMIC 2 Regular
Interest M-1, REMIC 2 Regular Interest M-2, REMIC 2 Regular Interest M-3, REMIC
2 Regular Interest M-4, REMIC 2 Regular Interest M-5, REMIC 2 Regular Interest
M-6, REMIC 2 Regular Interest M-7, REMIC 2 Regular Interest M-8, REMIC 2 Regular
Interest B and REMIC 2 Regular Interest ZZ, minus (ii) the aggregate of the
Uncertificated Principal Balances of REMIC 2 Regular Interest A-1, REMIC 2
Regular Interest A-1M, REMIC 2 Regular Interest A-1W, REMIC 2 Regular Interest
A-2A, REMIC 2 Regular Interest A-2B, REMIC 2 Regular Interest A-2C, REMIC 2
Regular Interest A-2D, REMIC 2 Regular Interest M-1, REMIC 2 Regular Interest
M-2, REMIC 2 Regular Interest M-3, REMIC 2 Regular Interest M-4, REMIC 2 Regular
Interest M-5, REMIC 2 Regular Interest M-6, REMIC 2 Regular Interest M-7, REMIC
2 Regular Interest M-8 and REMIC 2 Regular Interest B, in each case as of such
date of determination.
41
“REMIC
2
Principal Loss Allocation Amount”: With respect to any Distribution Date and the
mortgage loans, an amount equal to (a) the product of (i) the Aggregate Stated
Principal Balance of the Mortgage Loans and related REO Properties then
outstanding and (ii) 1 minus a fraction, the numerator of which is two times
the
aggregate of the Uncertificated Principal Balances of REMIC 2 Regular Interest
A-1, REMIC 2 Regular Interest A-1M, REMIC 2 Regular Interest A-1W, REMIC 2
Regular Interest A-2A, REMIC 2 Regular Interest A-2B, REMIC 2 Regular Interest
A-2C, REMIC 2 Regular Interest A-2D, REMIC 2 Regular Interest M-1, REMIC 2
Regular Interest M-2, REMIC 2 Regular Interest M-3, REMIC 2 Regular Interest
M-4, REMIC 2 Regular Interest M-5, REMIC 2 Regular Interest M-6, REMIC 2 Regular
Interest M-7, REMIC 2 Regular Interest M-8 and REMIC 2 Regular Interest B,
and
the denominator of which is the aggregate of the Uncertificated Principal
Balances of REMIC 2 Regular Interest A-1, REMIC 2 Regular Interest A-1M, REMIC
2
Regular Interest A-1W, REMIC 2 Regular Interest A-2A, REMIC 2 Regular Interest
A-2B, REMIC 2 Regular Interest A-2C, REMIC 2 Regular Interest A-2D, REMIC 2
Regular Interest M-1, REMIC 2 Regular Interest M-2, REMIC 2 Regular Interest
M-3, REMIC 2 Regular Interest M-4, REMIC 2 Regular Interest M-5, REMIC 2 Regular
Interest M-6, REMIC 2 Regular Interest M-7, REMIC 2 Regular Interest M-8, REMIC
2 Regular Interest B and REMIC 2 Regular Interest ZZ.
“REMIC
2
Overcollateralization Target Amount”: 1% of the Overcollateralization Target
Amount.
“REMIC
3”: The segregated pool of assets consisting of all of the REMIC 2 Regular
Interests conveyed in trust to the Trustee, for the benefit of the Holders
of
the Regular Certificates and the Holders of the Class R Certificates (as holders
of the Class R-3 Interest), pursuant to Article II hereunder, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
“REMIC
Provisions”: Provisions of the federal income tax law relating to real estate
mortgage investment conduits, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
“REMIC
Regular Interest”: A REMIC 1 Regular Interest, REMIC 2 Regular Interest or
Regular Certificate.
42
“Remittance
Report” A report prepared by the Master Servicer providing the information set
forth in Exhibit E attached hereto.
“REO
Acquisition” The acquisition by the Master Servicer on behalf of the Trustee for
the benefit of the Certificateholders of any REO Property pursuant to Section
3.15.
“REO
Disposition” The receipt by the Master Servicer of Insurance Proceeds,
Liquidation Proceeds and other payments and recoveries (including proceeds
of a
final sale) which the Master Servicer expects to be finally recoverable from
the
sale or other disposition of the REO Property.
“REO
Imputed Interest” As to any REO Property, for any period, an amount equivalent
to interest (at the Mortgage Rate that would have been applicable to the related
Mortgage Loan had it been outstanding) on the unpaid principal balance of the
Mortgage Loan as of the date of acquisition thereof (as such balance is reduced
pursuant to Section 3.15 by any income from the REO Property treated as a
recovery of principal).
“REO
Proceeds” Proceeds, net of directly related expenses, received in respect of any
REO Property (including, without limitation, proceeds from the rental of the
related Mortgaged Property and of any REO Disposition), which proceeds are
required to be deposited into the Custodial Account as and when
received.
“REO
Property” A Mortgaged Property acquired by the Master Servicer on behalf of the
Trust Fund through foreclosure or deed-in-lieu of foreclosure in connection
with
a defaulted Mortgage Loan.
“Repurchase
Price” With respect to any Mortgage Loan, either (i) a discovery that, as of the
Closing Date the related Mortgage was not a valid first lien or second lien
(as
applicable) on the related Mortgaged Property, subject to no other liens except
(A) the lien of real property taxes and assessments not yet due and payable,
(B)
covenants, conditions, and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage and such
other permissible title exceptions as are permitted and (C) other matters to
which like properties are commonly subject which do not materially adversely
affect the value, use, enjoyment or marketability of the related Mortgaged
Property or (ii) with respect to any Mortgage Loan as to which the Seller
delivers an affidavit certifying that the original Mortgage Note has been lost
or destroyed, a subsequent default on such Mortgage Loan if the enforcement
thereof or of the related Mortgage is materially and adversely affected by
the
absence of such original Mortgage Note.
“Request
for Release” A release signed by a Servicing Officer, in the form of Exhibits
F-1 or F-2 attached hereto.
“Residual
Interest” The sole Class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
43
“Responsible
Officer” When used with respect to the Trustee, 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, any trust officer or assistant trust officer
or any other officer of the Trustee 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.
“Servicing
Account” The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances” All customary, reasonable and necessary “out of pocket” costs and
expenses incurred in connection with a default, delinquency or other
unanticipated event in the performance by the Master Servicer or any
Sub-Servicer 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,
including any expenses incurred in relation to any such proceedings that result
from the Mortgage Loan being registered on the MERS System, (iii) the management
and liquidation of any REO Property, including reasonable fees paid to any
independent contractor in connection therewith, and (iv) compliance with the
obligations under the second paragraph of Section 3.01, Section 3.09 and Section
3.13 (other than any deductible described in the last paragraph
thereof).
“Servicing
Criteria” The “servicing criteria” set forth in Item 1122(d) of Regulation AB,
as such may be amended from time to time.
“Servicing
Guide” The Impac Funding Corporation Servicing Guide attached hereto as Exhibit
K.
“Servicing
Officer” Any officer of the Master Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished to the Trustee by
the
Master Servicer, as such list may from time to time be amended.
“Single
Certificate” A Regular Certificate of any Class (other than a Class P
Certificate) evidencing an Initial Certificate Principal Balance of $1,000,
or,
in the case of a Class P Certificate, a Certificate of such Class evidencing
an
Initial Certificate Principal Balance of $100.
“Special
Servicer” Any special servicer that may be appointed by the Servicer which
consent shall not be unreasonably withheld, for the purposes of servicing the
Specially Serviced Mortgage Loans.
44
“Specially
Serviced Mortgage Loan” Subject to Section 3.20 of this Pooling and Servicing
Agreement, any Mortgage Loan with respect to which:
(a) the
related Mortgagor is 60 or more days delinquent (without giving effect to any
grace period permitted by the related Mortgage Note) in the payment of a Monthly
Payment or other obligation (regardless of whether, in respect thereof, Advances
have been reimbursed);
(b) such
Mortgagor has expressed to the Master Servicer an inability to pay or a hardship
in paying such Mortgage Loan in accordance with its terms;
(c) the
Master Servicer has received notice that such Mortgagor has become the subject
of any bankruptcy, insolvency or similar proceeding, admitted in writing the
inability to pay its debts as they come due or made an assignment for the
benefit of creditors;
(d) the
Master Servicer has received notice of a foreclosure or threatened foreclosure
of any lien on the related Mortgaged Property;
(e) a
default, of which the Master Servicer has notice (other than a failure by such
Mortgagor to pay principal or interest) and which in the sole judgment of the
Master Servicer, materially and adversely affects the interests of the
Certificateholders, has occurred and remained unremedied for the applicable
grace period specified in such Mortgage Loan (or, if no grace period is
specified, 60 days); provided, however, that a default requiring a Servicing
Advance shall be deemed to materially and adversely affect the interests of
the
Certificateholders for purposes of this definition; or
(f) the
Master Servicer proposes to commence foreclosure or other workout
arrangements.
A
Mortgage Loan will cease to be a Specially Serviced Mortgage Loan:
(a) with
respect to the circumstances described in clause (a) above, when the related
Mortgagor has brought such Mortgage Loan current and thereafter has made three
consecutive full and timely Monthly Payments;
(b) with
respect to the circumstances described in clauses (b) and (d) above, when such
circumstances cease to exist in the good faith and reasonable judgment of the
Master Servicer, or any Special Servicer on its behalf, and with respect to
the
circumstances described in clauses (c) and (f),when such circumstances cease
to
exist; or
(c) with
respect to the circumstances described in clause (e) above, when such default
is
cured;
provided,
however, that in each case, at the time no circumstance identified in clauses
(a) through (f) above exists that would cause the Mortgage Loan to continue
to
be characterized as a Specially Serviced Mortgage Loan.
45
“Sponsor”
Impac Funding Corporation, or its successor in interest.
“Standard
& Poor’s” Standard & Poor’s Ratings Services, a division of The McGraw
Hill Companies, Inc., or its successor in interest.
“Startup
Day” The day designated as such pursuant to Article X hereof.
“Stated
Principal Balance” With respect to any Mortgage Loan or related REO Property at
any given time, (i) the principal balance of the Mortgage Loan outstanding
as of
the Cut-off Date, after application of principal payments due on or before
such
date, whether or not received, minus (ii) the sum of (a) the principal portion
of the Monthly Payments due with respect to such Mortgage Loan or REO Property
during each Due Period ending prior to the most recent Distribution Date which
were received or with respect to which an Advance was made, and (b) all
Principal Prepayments with respect to such Mortgage Loan or REO Property, and
all Insurance Proceeds, Liquidation Proceeds and REO Proceeds to the extent
applied by the Master Servicer as recoveries of principal in accordance with
Section 3.15 with respect to such Mortgage Loan or REO Property, which were
distributed pursuant to Section 4.01 on any previous Distribution Date, and
(c)
any Realized Loss with respect thereto allocated pursuant to Section 4.07 for
any previous Distribution Date.
“Step-Up
Date” The first Distribution Date following the first month in which the
aggregate Stated Principal Balance of the Mortgage Loans, and properties
acquired in respect thereof, remaining in the trust has been reduced to less
than or equal to 10% of the Cut-off Date Balance.
“Stepdown
Date” The earlier of (i) the first Distribution Date on which the Certificate
Principal Balances of the Class A Certificates have been reduced to zero and
(ii) the later to occur of (x) the Distribution Date occurring in _________
200_
and (y) the first Distribution Date on which the aggregate Certificate Principal
Balance of the Class A Certificates (calculated for this purpose only after
taking into account the receipt of principal on the Mortgage Loans, but prior
to
any distribution of principal to the Holders of the Certificates) is less than
or equal to approximately ____% of the aggregate principal balance of the
Mortgage Loans, calculated after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period.
“Stepdown
Target Subordination Percentage” For each Class of Subordinate Certificates, the
respective percentages indicated in the following table:
46
|
Stepdown
Target Subordination
Percentage
|
|
|
Class
M-1
|
|
|
Class
M-2
|
|
|
Class
M-3
|
|
|
Class
M-4
|
|
|
Class
M-5
|
|
|
Class
M-6
|
|
|
Class
M-7
|
|
|
Class
M-8
|
|
|
Class
B
|
“Subordinate
Certificates”
The
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8 and Class B Certificates.
“Subordinate
Class Principal Distribution Amount” For any Class of Subordinate Certificates
and any Distribution Date, the excess of (1) the sum of (a) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account distribution of the Class A Principal Distribution Amount for such
Distribution Date), (b) the aggregate Certificate Principal Balance of any
Class(es) of Subordinate Certificates that are senior to the subject Class
(in
each case, after taking into account distribution of the Subordinate Class
Principal Distribution Amount(s) for such senior Class(es) of Certificates
for
such Distribution Date) and (c) the Certificate Principal Balance of the subject
Class of Subordinate Certificates immediately prior to such Distribution Date
over (2) the lesser of (a) the product of (x) 100% minus the Stepdown Target
Subordination Percentage for the subject Class of Certificates and (y) the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date and (b) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date minus the OC Floor; provided, however, that if such
Class
of Subordinate Certificates is the only Class of Subordinate Certificates
outstanding on such Distribution Date, that Class will be entitled to receive
the entire remaining Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero.
“Subsequent
Recoveries” Any Liquidation Proceeds (net of amounts owed to the Master Servicer
or any Sub-servicer with respect to the related Mortgage Loan) received after
the final liquidation of a Mortgage Loan. If Subsequent Recoveries are received,
they will be included as part of the Principal Remittance Amount for the
following Distribution Date and distributed in accordance with the priorities
described in Section 4.01 of this Agreement. In addition, after giving effect
to
all distributions on a Distribution Date, if any Allocated Realized Loss Amounts
are outstanding, the Allocated Realized Loss Amount for the Class of Offered
Certificates then outstanding with the highest distribution priority will be
decreased by the amount of such Subsequent Recoveries until reduced to zero
(with any remaining Subsequent Recoveries applied to reduce the Allocated
Realized Loss Amount of the Class with the next highest distribution priority),
and the Certificate Principal Balance of such Class or Classes of Offered
Certificates will be increased by the same amount. Thereafter, such Class or
Classes of Offered Certificates will accrue interest on the increased
Certificate Principal Balance.
47
“Sub-Servicer”
Any Person with which the Master Servicer has entered into a Sub-Servicing
Agreement and which meets the qualifications of a Sub-Servicer pursuant to
Section 3.02.
“Sub-Servicer
Remittance Date” The 18th day of each month, or if such day is not a Business
Day, the immediately preceding Business Day.
“Sub-Servicing
Account” An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 and is otherwise acceptable to the Master
Servicer.
“Sub-Servicing
Agreement” The written contract between the Master Servicer and a Sub-Servicer
and any successor Sub-Servicer relating to servicing and administration of
certain Mortgage Loans as provided in Section 3.02.
“Sub-Servicing
Fees” As to each Mortgage Loan, an amount, payable out of any payment of
interest on the Mortgage Loan, equal to interest at the Sub-Servicing Fee Rate
on the Stated Principal Balance of such Mortgage Loan as of the Due Date in
the
calendar month preceding the month in which the payment of the Servicing Fee
is
due (alternatively, in the event such payment of interest accompanies a
Principal Prepayment in Full made by the Mortgagor, interest for the number
of
days covered by such payment of interest).
“Sub-Servicing
Fee Rate” On each adjustable rate Mortgage Loan, a rate equal to _____% per
annum, with
such
rate increasing to ______% per annum for any commercial or mixed-use loan that
becomes a Specially Serviced Mortgage Loan.
On each
fixed rate first lien Mortgage Loan, a rate equal to _____% per annum, with
such
rate increasing to ______% per annum for any commercial or mixed-use loan that
becomes a Specially Serviced Mortgage Loan. On each fixed rate second lien
Mortgage Loan, a rate equal to _____% per annum, with such rate increasing
to
______% per annum for any commercial or mixed-use loan that becomes a Specially
Serviced Mortgage Loan.
“Substitution
Adjustment” As defined in Section 2.04 hereof.
“Supplemental
Interest Trust” The corpus of a trust created pursuant to Section 3.20 of this
Agreement and designated as the “Supplemental Interest Trust,” consisting of the
Swap Agreement and the Swap Account. For the avoidance of doubt, the
Supplemental Interest Trust, the Swap Agreement, the Swap Account and the Swap
Administration Agreement do not constitute parts of the Trust Fund or any
REMIC.
48
“Supplemental
Interest Trust Trustee” [NAME OF THE TRUSTEE], a national banking association
not in its individual capacity but solely in its capacity as supplemental
interest trust trustee under the Swap Administration Agreement and the Swap
Agreement, and any successor thereto, and any corporation or national banking
association resulting from or surviving any consolidation or merger to which
it
or its successors may be a party and any successor supplemental interest trust
trustee as may from time to time be serving as successor supplemental interest
trust trustee.
“Swap
Account” The separate trust account created and maintained by the Swap
Administrator, and held within the Supplemental Interest Trust, pursuant to
the
Swap Administration Agreement.
“Swap
Administrator” [NAME OF THE SWAP ADMINISTRATOR] acting as swap administrator
under the Swap Administration Agreement.
“Swap
Administration Agreement” The Swap Administration Agreement, dated __________
___, 200_, pursuant to which the Swap Administrator will make payments to the
Swap Provider and the Trust Fund, and certain other payments, as such agreement
may be amended or supplemented from time to time.
“Swap
Agreement” The interest rate swap agreement between the Swap Provider and
Supplemental Interest Trust Trustee, acting as trustee on behalf of the
Supplemental Interest Trust, which agreement provides for Net Swap Payments
and
Swap Termination Payments to be paid, as provided therein, together with any
schedules, confirmations or other agreements relating thereto, attached hereto
as Exhibit M.
“Swap
LIBOR” LIBOR as determined pursuant to the Swap Agreement.
“Swap
Provider” The swap provider under the Swap Agreement either (a) entitled to
receive payments from the Swap Administrator from amounts payable by the Trust
Fund under this Agreement or (b) required to make payments to the Swap
Administrator for payment to the Trust Fund, in either case pursuant to the
terms of the Swap Agreement, and any successor in interest or assign. Initially,
the Swap Provider shall be Barclays Bank PLC.
“Swap
Provider Trigger Event” With respect to any Distribution Date, (i) an Event of
Default under the Swap Agreement with respect to which the Swap Provider is
a
Defaulting Party, (ii) a Termination Event under the Swap Agreement with respect
to which the Swap Provider is the sole Affected Party, or (iii) an Additional
Termination Event under the Swap Agreement with respect to which the Swap
Provider is the sole Affected Party.
“Swap
Termination Payment” Upon the designation of an “Early Termination Date” as
defined in the Swap Agreement, the payment to be made by the Swap Administrator
to the Swap Provider from payments from the Trust Fund, or by the Swap Provider
to the Swap Administrator for payment to the Trust Fund, as applicable, pursuant
to the terms of the Swap Agreement.
49
“Tax
Returns” The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on
behalf of REMIC 1, REMIC 2 and REMIC 3 due to their classification as REMICs
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax
laws.
“Transfer”
Any direct or indirect transfer, sale, pledge, hypothecation or other form
of
assignment of any Ownership Interest in a Certificate.
“Transferor”
Any Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Trigger
Event” A Trigger Event is in effect with respect to any Distribution Date
if
(1) the
average three-month rolling percentage obtained by dividing (x) the aggregate
principal balance of Mortgage Loans that are 60 or more days delinquent
(including for this purpose any such Mortgage Loans in foreclosure, Mortgage
Loans with respect to which the related mortgaged property has been acquired
by
the trust, and Mortgage Loans discharged due to bankruptcy) as of the last
day
of the previous calendar month by (y) the aggregate principal balance of the
Mortgage Loans, in each case, as of the last day of the previous calendar month,
exceeds the product of the applicable percentage listed directly below and
the
Credit Enhancement Percentage
|
Class
|
Percentage
|
|
|
Class
A
|
||
|
Class
M-1
|
||
|
Class
M-2
|
||
|
Class
M-3
|
||
|
Class
M-4
|
||
|
Class
M-5
|
||
|
Class
M-6
|
||
|
Class
M-7
|
||
|
Class
M-8
|
||
|
Class
B
|
or
(2) the
cumulative amount of Realized Losses incurred on the Mortgage Loans from the
Cut-off Date through the end of the calendar month immediately preceding such
Distribution Date divided by the Cut-off Date Balance exceeds (i) ___% with
respect to the Distribution Date occurring in __________ 200_, plus an
additional 1/12th of ___% for each month thereafter up to and including the
Distribution Date in __________ 200_, (ii) ___% with respect to the Distribution
Date occurring in __________ 200_, plus an additional 1/12th of ___% for each
month thereafter up to and including the Distribution Date in _________ 200_,
(iii) ___% with respect to the Distribution Date occurring in _________ 20__,
plus an additional 1/12th of ___% for each month thereafter up to and including
the Distribution Date in _________ 20__, (iv) ___% with respect to the
Distribution Date occurring in __________ 20__, plus an additional 1/12th of
___% for each month thereafter up to and including the Distribution Date in
December 20__ and (v) ___%with respect to any Distribution Date occurring in
__________ 20__ and thereafter.
50
For
purposes of the foregoing calculation, a Mortgage Loan is considered “60 days”
delinquent if a payment due on the first day of a month has not been received
by
the second day of the second following month.
“Trustee”
[NAME OF THE TRUSTEE], or its successor in interest, or any successor trustee
appointed as herein provided.
“Trust
Fund” REMIC 1, REMIC 2, REMIC 3, the Supplemental Interest Trust, Swap
Administration Agreement, Swap Account, Swap Agreement and the Net WAC Shortfall
Reserve Fund.
“Uncertificated
Accrued Interest”: With respect to each Uncertificated REMIC Regular Interest on
each Distribution Date, an amount equal to one month’s interest at the related
Uncertificated Pass-Through Rate on the Uncertificated Principal Balance of
such
Uncertificated REMIC Regular Interest. In each case, Uncertificated Accrued
Interest will be reduced by any Net Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls (allocated to such Uncertificated REMIC Regular
Interests as set forth in Section 1.03).
“Uncertificated
Notional Amount”: With respect to REMIC 2 Regular Interest IO and each
Distribution Date listed below, the aggregate Uncertificated Principal Balance
of the REMIC I Regular Interests ending with the designation “A” listed
below:
|
Distribution
Date
|
REMIC
II Regular Interests
|
|
|
1
and 2
|
I-1-A
through X-00-X
|
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
|
0
|
X-0-X
through X-00-X
|
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
|
0
|
X-0-X
through X-00-X
|
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
|
0
|
X-0-X
through X-00-X
|
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
|
00
|
X-0-X
through I-59-A
|
|
|
11
|
I-10-A
through I-59-A
|
|
|
12
|
I-11-A
through I-59-A
|
|
|
13
|
I-12-A
through I-59-A
|
|
|
14
|
I-13-A
through I-59-A
|
|
|
15
|
I-14-A
through I-59-A
|
|
|
16
|
I-15-A
through I-59-A
|
|
|
17
|
I-16-A
through I-59-A
|
|
|
18
|
I-17-A
through I-59-A
|
|
|
19
|
I-18-A
through I-59-A
|
51
|
Distribution
Date
|
REMIC
II Regular Interests
|
|
|
20
|
I-19-A
through I-59-A
|
|
|
21
|
I-20-A
through I-59-A
|
|
|
22
|
I-21-A
through I-59-A
|
|
|
23
|
I-22-A
through I-59-A
|
|
|
24
|
I-23-A
through I-59-A
|
|
|
25
|
I-24-A
through I-59-A
|
|
|
26
|
I-25-A
through I-59-A
|
|
|
27
|
I-26-A
through I-59-A
|
|
|
28
|
I-27-A
through I-59-A
|
|
|
29
|
I-28-A
through I-59-A
|
|
|
30
|
I-29-A
through I-59-A
|
|
|
31
|
I-30-A
through I-59-A
|
|
|
32
|
I-31-A
through I-59-A
|
|
|
33
|
I-32-A
through I-59-A
|
|
|
34
|
I-33-A
through I-59-A
|
|
|
35
|
I-34-A
through I-59-A
|
|
|
36
|
I-35-A
through I-59-A
|
|
|
37
|
I-36-A
through I-59-A
|
|
|
38
|
I-37-A
through I-59-A
|
|
|
39
|
I-38-A
through I-59-A
|
|
|
40
|
I-39-A
through I-59-A
|
|
|
41
|
I-40-A
through I-59-A
|
|
|
42
|
I-41-A
through I-59-A
|
|
|
43
|
I-42-A
through I-59-A
|
|
|
44
|
I-43-A
through I-59-A
|
|
|
45
|
I-44-A
through I-59-A
|
|
|
46
|
I-45-A
through I-59-A
|
|
|
47
|
I-46-A
through I-59-A
|
|
|
48
|
I-47-A
through I-59-A
|
|
|
49
|
I-48-A
through I-59-A
|
|
|
50
|
I-49-A
through I-59-A
|
|
|
51
|
I-50-A
through I-59-A
|
|
|
52
|
I-51-A
through I-59-A
|
|
|
53
|
I-52-A
through I-59-A
|
|
|
54
|
I-53-A
through I-59-A
|
|
|
55
|
I-54-A
through I-59-A
|
|
|
56
|
I-55-A
through I-59-A
|
|
|
57
|
I-56-A
through I-59-A
|
|
|
58
|
I-57-A
and I-59-A
|
|
|
59
|
I-58-A
and I-59-A
|
|
|
60
|
I-59-A
|
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of REMIC 2 Regular Interest IO.
“Uncertificated
Pass-Through Rates: The Uncertificated REMIC 1 Pass-Through Rate and
Uncertificated REMIC 2 Pass-Through Rate.
52
“Uncertificated
Principal Balance”: With respect to each Uncertificated REMIC Regular Interest,
the principal amount of such Uncertificated REMIC Regular Interest outstanding
as of any date of determination. As of the Closing Date, the Uncertificated
Principal Balance of each Uncertificated REMIC Regular Interest 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 such Uncertificated REMIC Regular Interest shall
be
reduced by all distributions of principal made on such Uncertificated REMIC
Regular Interest on such Distribution Date pursuant to Section 4.04 and, if
and
to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section 4.05. The
Uncertificated Principal Balance of REMIC 2 Regular Interest ZZ shall be
increased by interest deferrals as provided in Section 4.04. The Uncertificated
Principal Balance of each Uncertificated REMIC Regular Interest shall never
be
less than zero.
“Uncertificated
REMIC 1 Pass-Through Rate”: With respect to REMIC 1 Regular Interest A-I, a per
annum rate equal to the weighted average of the Net Mortgage Rates of the
Mortgage Loans. For the first Distribution Date only with respect to each REMIC
1 Regular Interest ending with the designation “A”, a per annum rate equal to
the weighted average of the Net Mortgage Rates of the Mortgage Loans multiplied
by 2, subject to a maximum rate of 7.449%. For the first Distribution Date
only
with respect to each REMIC 1 Regular Interest ending with the designation “B”,
the greater of (x) a per annum rate equal to the excess, if any, of (i) 2
multiplied by the weighted average of the Net Mortgage Rates of the Mortgage
Loans, over (ii) 7.449% and (y) 0.00%. After the first Distribution Date, with
respect to each REMIC 1 Regular Interest ending with the designation “A” and
“B”, a per annum rate equal to the Uncertificated REMIC 1 Pass-Through Rates as
provided in the following table:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
2
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
3
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
4
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
5
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
6
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
7
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
8
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
9
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii)
______%
|
53
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
10
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus _______% and (ii) ______%
|
|||
|
11
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to _______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus _______% and (ii) _______%
|
|||
|
12
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
13
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
14
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
15
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
16
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
17
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
18
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
19
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
20
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
21
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
22
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
23
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
24
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
25
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii)
______%
|
54
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
26
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
27
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
28
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
29
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
30
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
31
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
32
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
33
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
34
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus _______ % and (ii) ______%
|
|||
|
35
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
36
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
37
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
38
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
39
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
40
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
41
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii)
______%
|
55
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
42
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
43
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
44
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
45
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
46
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
47
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
48
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
49
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
50
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
51
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
52
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus _______% and (ii) ______%
|
|||
|
53
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus _______% and (ii) ______%
|
|||
|
54
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) _____%
|
|||
|
55
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to _____%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus _____% and (ii) ______%
|
|||
|
56
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
57
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii)
______%
|
56
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
58
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
59
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii) ______%
|
|||
|
60
and thereafter
|
REMIC
1 Regular Interest ending with the designation “A”
|
2
multiplied by the Net Mortgage Rates of the Mortgage Loans, subject
to a
per annum rate equal to ______%
|
||
|
REMIC
1 Regular Interest ending with the designation “B”
|
The
greater of (i) 2 multiplied the by Net Mortgage Rates of the Mortgage
Loans minus ______% and (ii)
______%
|
“Uncertificated
REMIC 2 Pass-Through Rate”: With respect to REMIC 2 Regular Interest AA, REMIC 2
Regular Interest A-1, REMIC 2 Regular Interest A-1M, REMIC 2 Regular Interest
A-1W, REMIC 2 Regular Interest A-2A, REMIC 2 Regular Interest A-2B, REMIC 2
Regular Interest A-2C, REMIC 2 Regular Interest A-2D, REMIC 2 Regular Interest
M-1, REMIC 2 Regular Interest M-2, REMIC 2 Regular Interest M-3, REMIC 2 Regular
Interest M-4, REMIC 2 Regular Interest M-5, REMIC 2 Regular Interest M-6, REMIC
2 Regular Interest M-7, REMIC 2 Regular Interest M-8, REMIC 2 Regular Interest
B, REMIC 2 Regular Interest P and REMIC 2 Regular Interest ZZ, a per annum
rate
(but not less than zero) equal to the weighted average of: (x) with respect
to
REMIC 1 Regular Interest A-I and each REMIC 1 Regular Interest ending with
the
designation “B”, the weighted average of the Uncertificated REMIC 1 Pass-Through
Rates for such REMIC 1 Regular Interests, weighted on the basis of the
Uncertificated Principal Balances of such REMIC 1 Regular Interests for each
such Distribution Date and (y) with respect to REMIC 1 Regular Interests ending
with the designation “A”, for each Distribution Date listed below, the weighted
average of the rates listed below for each such REMIC 1 Regular Interest listed
below, weighted on the basis of the Uncertificated Principal Balances of each
such REMIC 1 Regular Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
1
and 2
|
I-1-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
3
|
I-2-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
4
|
I-3-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-2-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
5
|
I-4-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-3-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
6
|
I-5-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-4-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
7
|
I-6-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-5-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
8
|
I-7-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-6-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
9
|
I-8-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-7-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
10
|
I-9-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-8-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
57
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
11
|
I-10-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-9-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
12
|
I-11-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-10-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
13
|
I-12-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-11-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
14
|
I-13-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-12-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
15
|
I-14-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-13-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
16
|
I-15-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-14-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
17
|
I-16-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-15-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
18
|
I-17-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-16-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
19
|
I-18-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-17-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
20
|
I-19-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-18-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
21
|
I-20-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-19-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
22
|
I-21-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-20-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
23
|
I-22-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-21-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
24
|
I-23-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-22-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
25
|
I-24-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-23-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
26
|
I-25-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-24-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
27
|
I-26-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-25-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
28
|
I-27-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-26-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
29
|
I-28-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-27-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
30
|
I-29-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
31
|
I-30-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-29-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
58
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
32
|
I-31-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-30-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
33
|
I-32-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-31-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
34
|
I-33-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-32-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
35
|
I-34-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-33-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
36
|
I-35-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-34-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
37
|
I-36-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-35-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
38
|
I-37-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-36-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
39
|
I-38-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-37-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
40
|
I-39-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-38-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
41
|
I-40-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
42
|
I-41-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-40-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
43
|
I-42-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-41-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
44
|
I-43-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-42-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
45
|
I-44-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-43-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
46
|
I-45-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-44-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
47
|
I-46-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-45-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
48
|
I-47-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-46-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
49
|
I-48-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-47-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
50
|
I-49-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-48-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
51
|
I-50-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-49-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
52
|
I-51-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-50-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
59
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
||
|
53
|
I-52-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
54
|
I-53-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-52-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
55
|
I-54-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-53-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
56
|
I-55-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-54-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
57
|
I-56-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-55-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
58
|
I-57-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-56-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
59
|
I-58-A
through I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
and I-57-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
60
|
I-59-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of the Uncertificated
REMIC 1 Pass-Through Rate
|
||
|
I-1-A
through I-58-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|||
|
thereafter
|
I-1-A
through I-59-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
“Uncertificated
REMIC Regular Interests”: The REMIC 1 Regular Interests and the REMIC 2 Regular
Interests.
“Uninsured
Cause” Any cause of damage to property subject to a Mortgage such that the
complete restoration of such property is not fully reimbursable by the hazard
insurance policies or flood insurance policies required to be maintained
pursuant to Section 3.13.
“United
States Person” A citizen or resident of the United States, a corporation or a
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)
provided that, for purposes solely of the restrictions on the transfer of Class
R Certificates, 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 required by the applicable operative agreement
to be United States Persons 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 United States 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 I of subchapter
J
of chapter 1 of the Code), and which was treated as a United States person
on
August 20, 1996 may elect to continue to be treated as a United States person
notwithstanding the previous sentence.
60
“Unpaid
Interest Shortfall Amount” For
each
Class of Offered Certificates and the first Distribution Date, zero, and with
respect to each Class of Offered Certificates and any Distribution
Date after
the
first Distribution Date, the amount, if any, by which (a) the sum of (1) the
Monthly Interest Distributable Amount for such Class for the immediately
preceding Distribution Date and (2) the outstanding Unpaid Interest Shortfall
Amount, if any, for such Class for such preceding Distribution Date exceeds
(b)
the aggregate amount distributed on such Class in respect of interest pursuant
to clause (a) of this definition on such preceding Distribution Date, plus
interest on the amount of interest due but not paid on such Class on such
preceding Distribution Date, to the extent permitted by law, at the Pass-Through
Rate for such Class for the related Accrual Period.
“Voting
Rights” The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times during the term of this Agreement,
(i) 98% of all Voting Rights will be allocated among the Holders of the Class
A
Certificates, the Subordinate Certificates and the Class C Certificates in
proportion to the then outstanding Certificate Principal Balances of their
respective Certificates, (ii) 1% of all Voting Rights will be allocated to
the
Holders of the Class P Certificates and (iii) 1% of all Voting Rights will
be
allocated to the Holders of the Class R Certificates. The Voting Rights
allocated to any Class of Certificates shall be allocated among all Holders
of
the Certificates of such Class in proportion to the outstanding Percentage
Interests in such Class represented thereby.
“Weighted
Average Net Mortgage Rate” The weighted average of the Net Mortgage Rates of the
Mortgage Loans, weighted on the basis of the Stated Principal Balances thereof
as of the close of business on the first day of the calendar month preceding
the
month in which such Distribution Date occurs.
“Workout
Fee” An amount equal to the product of 1.50% and the amount of Net Collections
received by the Servicer or any Special Servicer with respect to each Corrected
Mortgage Loan.
Section
1.02. Determination
of LIBOR.
LIBOR
applicable to the calculation of the Pass-Through Rate on the Offered
Certificates for any Accrual Period will be determined on each LIBOR Rate
Adjustment Date.
On
each
LIBOR Rate Adjustment Date, LIBOR shall be established by the Trustee and,
as to
any Accrual Period, will equal the rate for one month United States dollar
deposits that appears on the Telerate Screen Page 3750 as of 11:00 a.m., London
time, on such LIBOR Rate Adjustment Date. “Telerate Screen Page 3750” means the
display designated as page 3750 on the Telerate Service (or such other page
as
may replace page 3750 on that service for the purpose of displaying London
interbank offered rates of major banks). If such rate does not appear on such
page (or such other page as may replace that page on that service, or if such
service is no longer offered, LIBOR shall be so established by use of such
other
service for displaying LIBOR or comparable rates as may be selected by the
Trustee after consultation with the Master Servicer), the rate will be the
Reference Bank Rate. The “Reference Bank Rate” will be determined on the basis
of the rates at which deposits in U.S. Dollars are offered by the reference
banks (which shall be any three major banks that are engaged in transactions
in
the London interbank market, selected by the Trustee after consultation with
the
Master Servicer) as of 11:00 a.m., London time, on the LIBOR Rate Adjustment
Date to prime banks in the London interbank market for a period of one month
in
amounts approximately equal to the aggregate Certificate Principal Balance
of
the Offered Certificates then outstanding. The Trustee will request the
principal London office of each of the reference banks to provide a quotation
of
its rate. If at least two such quotations are provided, the rate will be the
arithmetic mean of the quotations rounded up to the next multiple of 1/16%.
If
on such date fewer than two quotations are provided as requested, the rate
will
be the arithmetic mean of the rates quoted by one or more major banks in New
York City, selected by the Trustee after consultation with the Master Servicer,
as of 11:00 a.m., New York City time, on such date for loans in U.S. Dollars
to
leading European banks for a period of one month in amounts approximately equal
to the aggregate Certificate Principal Balance of the Offered Certificates
then
outstanding. If no such quotations can be obtained, the rate will be LIBOR
for
the prior Distribution Date; provided however, if, under the priorities
described above, LIBOR for a Distribution Date would be based on LIBOR for
the
previous Distribution Date for the third consecutive Distribution Date, the
Trustee shall select an alternative comparable index after consultation with
the
Master Servicer (over which the Trustee has no control), used for determining
one-month Eurodollar lending rates that is calculated and published (or
otherwise made available) by an independent party.
61
The
establishment of LIBOR by the Trustee on any LIBOR Rate Adjustment Date and
the
Trustee’s subsequent calculation of the Pass-Through Rate applicable to the
Offered Certificates for the relevant Accrual Period, in the absence of manifest
error, will be final and binding.
Promptly
following each LIBOR Rate Adjustment Date the Trustee shall supply the Master
Servicer with the results of its determination of LIBOR on such date.
Furthermore, the Trustee will supply to any Certificateholder so requesting
by
telephone the Pass-Through Rate on the Offered Certificates for the current
and
the immediately preceding Accrual Period.
Section
1.03. Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 1 Regular Interests for any Distribution Date, the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of Mortgage Loans shall be allocated first, to REMIC I
Regular Interest A-I and to the REMIC I Regular Interests ending with the
designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest, and then, to REMIC
1
Regular Interests ending with the designation “A”, pro rata based on, and to the
extent of, one month’s interest at the then applicable respective Uncertificated
REMIC 1 Pass-Through Rates on the respective Uncertificated Principal Balances
of each such REMIC 1 Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 2 Regular Interests for any Distribution Date, the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated (i) with respect to the Mortgage Loans, first, to Uncertificated
Accrued Interest payable to REMIC 2 Regular Interest AA and REMIC 2 Regular
Interest ZZ up to an aggregate amount equal to the REMIC 2 Interest Loss
Allocation Amount, 98% and 2%, respectively, and thereafter among REMIC 2
Regular Interest AA, REMIC 2 Regular Interest A-1, REMIC 2 Regular Interest
A-1M, REMIC 2 Regular Interest A-1W, REMIC 2 Regular Interest A-2A, REMIC 2
Regular Interest A-2B, REMIC 2 Regular Interest A-2C, REMIC 2 Regular Interest
A-2D, REMIC 2 Regular Interest M-1, REMIC 2 Regular Interest M-2, REMIC 2
Regular Interest, M-3, REMIC 2 Regular Interest M-4, REMIC 2 Regular Interest
M-5, REMIC 2 Regular Interest M-6, REMIC 2 Regular Interest, M-7, REMIC 2
Regular Interest M-8, REMIC 2 Regular Interest B and REMIC 2 Regular Interest
ZZ, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 2 Pass-Through Rates on the respective Uncertificated
Principal Balance of each such REMIC 2 Regular Interest.
62
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS
ORIGINAL
ISSUANCE OF CERTIFICATES
Section
2.01. Conveyance
of Mortgage Loans.
The
Depositor, as of the Closing Date, and concurrently with the execution and
delivery hereof, does hereby assign, transfer, sell, set over and otherwise
convey to the Trustee without recourse all the right, title and interest of
the
Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule
(exclusive of any prepayment fees and late payment charges received thereon)
and
all other assets included or to be included in the Trust Fund for the benefit
of
the Certificateholders and the Certificate Insurer, including the amount to
be
deposited by or on behalf of the Depositor into the Net WAC Shortfall Reserve
Fund. Such assignment includes all principal and interest received by the Master
Servicer on or with respect to the Mortgage Loans (other than payment of
principal and interest due on or before the Cut-off Date).
In
connection with such transfer and assignment, the Depositor has caused the
Sponsor
to
deliver to, and deposit with the Custodian, as described in the Mortgage Loan
Purchase Agreement, with respect to each Mortgage Loan, the following documents
or instruments:
(i) the
original Mortgage Note endorsed without recourse in blank or to, “[NAME OF THE
TRUSTEE], as trustee under the Pooling and Servicing Agreement relating to
Impac
Secured Assets Corp., Asset-Backed Certificates, Series 200_-_” with all
intervening endorsements showing an unbroken chain of endorsements from the
originator to the Person endorsing it to the Trustee or, with respect to any
Mortgage Loan as to which the original Mortgage Note has been permanently lost
or destroyed and has not been replaced, a Lost Note Affidavit;
(ii) the
original recorded Mortgage, noting the presence of the MIN of the Mortgage
Loan
and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan, with evidence of recording indicated thereon or, if the
original Mortgage has not been returned from the public recording office, a
copy
of the Mortgage certified by the Sponsor or the public recording office in
which
such Mortgage has been recorded to be a true and complete copy of the original
Mortgage submitted for recording;
(iii) unless
the Mortgage Loan is registered on the MERS® System, a duly executed original
Assignment of the Mortgage, without recourse in blank or to, in recordable
form
to [NAME OF THE TRUSTEE], as trustee,” or to “[NAME OF THE TRUSTEE], as trustee
for holders of Impac Secured Assets Corp., Asset-Backed Certificates, Series
200_-_”;
63
(iv) the
original recorded Assignment or Assignments of the Mortgage showing an unbroken
chain of assignment from the originator thereof to the Person assigning it
in
blank or to the Trustee (or to MERS, if the Mortgage Loan is registered on
the
MERS® System and noting the presence of a MIN) or, if any such Assignment has
not been returned from the applicable public recording office, a copy of such
Assignment certified by the Sponsor to be a true and complete copy of the
original Assignment submitted to the title insurance company for
recording;
(v) the
original title insurance policy, or, if such policy has not been issued, any
one
of an original or a copy of the preliminary title report, title binder or title
commitment on the Mortgaged Property with the original policy of the insurance
to be delivered promptly following the receipt thereof;
(vi) a
copy of
the related hazard insurance policy; and
(vii) a
true
and correct copy of any assumption, modification, consolidation or substitution
agreement.
The
Sponsor is obligated as described in the Mortgage Loan Purchase Agreement,
with
respect to the Mortgage Loans, to deliver to the Custodian: (a) either the
original recorded Mortgage, or in the event such original cannot be delivered
by
the Sponsor, a copy of such Mortgage certified as true and complete by the
appropriate recording office, in those instances where a copy thereof certified
by the Sponsor was delivered to the Custodian pursuant to clause (ii) above;
and
(b) either the original Assignment or Assignments of the Mortgage, with evidence
of recording thereon, showing an unbroken chain of assignment from the
originator to the Sponsor, or in the event such original cannot be delivered
by
the Sponsor, a copy of such Assignment or Assignments certified as true and
complete by the appropriate recording office, in those instances where copies
thereof certified by the Sponsor were delivered to the Custodian pursuant to
clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement
with respect to the Mortgage Loans, the Sponsor need not cause to be recorded
any assignment in any jurisdiction under the laws of which, as evidenced by
an
Opinion of Counsel delivered by the Sponsor to the Trustee and the Rating
Agencies, the recordation of such assignment is not necessary to protect the
Trustee’s interest in the related Mortgage Loan; provided,
however,
notwithstanding the delivery of any Opinion of Counsel, each assignment shall
be
submitted for recording by the Sponsor in the manner described above, at no
expense to the Trust or the Trustee, upon the earliest to occur of: (i)
direction by the Holders of Certificates evidencing at least 25% of the Voting
Rights, (ii) the occurrence of a Event of Default, (iii) the occurrence of
a
bankruptcy, insolvency or foreclosure relating to the Sponsor, (iv) the
occurrence of a servicing transfer as described in Section 7.02 hereof and
(v)
if the Sponsor is not the Master Servicer and with respect to any one
assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating
to the Mortgagor under the related Mortgage.
Notwithstanding
anything to the contrary contained in this Section 2.01, in those instances
where the public recording office retains the original Mortgage after it has
been recorded, the Sponsor shall be deemed to have satisfied its obligations
hereunder upon delivery to the Custodian of a copy of such Mortgage certified
by
the public recording office to be a true and complete copy of the recorded
original thereof.
64
If
any
Assignment is lost or returned unrecorded to the Custodian because of any defect
therein, the Sponsor is required, as described in the Mortgage Loan Purchase
Agreement with respect to the Mortgage Loans, to prepare a substitute Assignment
or cure such defect, as the case may be, and the Sponsor shall cause such
Assignment to be recorded in accordance with this section.
The
Sponsor is required as described in the Mortgage Loan Purchase Agreement to
exercise its best reasonable efforts to deliver or cause to be delivered to
the
Custodian within 120 days of the Closing Date, with respect to the Mortgage
Loans, the original or a photocopy of the title insurance policy with respect
to
each such Mortgage Loan assigned to the Trustee pursuant to this Section
2.01.
In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Sponsor further agrees that it will cause, at the Sponsor’s own
expense, as of the Closing Date, the MERS® System to indicate that such Mortgage
Loans have been assigned by the Sponsor to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders and the Certificate Insurer
by including (or deleting, in the case of Mortgage Loans which are repurchased
in accordance with this Agreement) in such computer files (a) the code in the
field which identifies the specific Trustee and (b) the code in the field “Pool
Field” which identifies the series of the Certificates issued in connection with
such Mortgage Loans. The Depositor further agrees that it will not, and will
not
permit the Master Servicer to, and the Master Servicer agrees that it will
not,
alter the codes referenced in this paragraph with respect to any Mortgage Loan
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
All
original documents relating to the Mortgage Loans which are not delivered to
the
Custodian are and shall be held by the Master Servicer in trust for the benefit
of the Trustee on behalf of the Certificateholders and the Certificate
Insurer.
Except
as
may otherwise expressly be provided herein, none of the Depositor, the Master
Servicer or the Trustee shall (and the Master Servicer shall ensure that no
Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the
Trust Fund or any portion thereof, or cause the Trust Fund or any portion
thereof to be subject to any lien, claim, mortgage, security interest, pledge
or
other encumbrance.
65
It
is
intended that the conveyance of the Mortgage Loans by the Depositor to the
Trustee as provided in this Section be, and be construed as, a sale of the
Mortgage Loans as provided for in this Section 2.01 by the Depositor to the
Trustee for the benefit of the Certificateholders and the Certificate Insurer.
It is, further, not intended that such conveyance be deemed a pledge of the
Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that the Mortgage Loans
are
held to be property of the Depositor, or if for any reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans, then it
is
intended that, (a) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in this Section shall be deemed
to
be (1) a grant by the Depositor to the Trustee of a security interest in all
of
the Depositor’s right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related Insurance
Policies and all other documents in the related Mortgage Files, (B) all amounts
payable to the holders of the Mortgage Loans in accordance with the terms
thereof and (C) all proceeds of the conversion, voluntary or involuntary, of
the
foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the
Certificate Account or the Custodial Account, whether in the form of cash,
instruments, securities or other property and (2) an assignment by the Depositor
to the Trustee of any security interest in any and all of the Sponsor’s right
(including the power to convey title thereto), title and interest, whether
now
owned or hereafter acquired, in and to the property described in the foregoing
clauses (1)(A) through (C); (c) the possession by the Trustee or any other
Custodian or agent of the Trustee of Mortgage Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel
paper
shall be deemed to be “possession by the secured party” or possession by a
purchaser or a person designated by such secured party, for purposes of
perfecting the security interest pursuant to the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction
(including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501
and
8-503 thereof); and (d) 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.
The
Depositor and the Trustee shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the REMIC 1
Regular Interests, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement.
Concurrently
with the execution of this Agreement, the Swap Agreement shall be delivered
to
the Supplemental Interest Trust Trustee. In connection therewith, the Depositor
hereby directs the Supplemental Interest Trust Trustee (solely in its capacity
as such) to execute and deliver the Swap Agreement.
Section
2.02. Acceptance
of the Trust Fund by the Trustee.
The
Custodian, with respect to the Mortgage Files held by it, acknowledges receipt
(subject to any exceptions noted in the Initial Certification described below)
on behalf of the Trustee, of the documents referred to in Section 2.01 above
and
all other assets included in the definition of “Trust Fund” and declares that it
holds and will hold such documents and the other documents delivered to it
constituting the Mortgage Files, and that it holds or will hold such other
assets included in the definition of “Trust Fund” (to the extent delivered or
assigned to the Trustee), in trust for the exclusive use and benefit of all
present and future Certificateholders.
66
The
Custodian agrees, for the benefit of the Certificateholders and the Certificate
Insurer, to review or cause to be reviewed on its behalf, each Mortgage File
on
or before the Closing Date to ascertain that all documents required to be
delivered to it are in its possession, and the Custodian agrees to execute
and
deliver, or cause to be executed and delivered, to the Depositor, the
Certificate Insurer and the Master Servicer on the Closing Date, with respect
to
each Mortgage Loan, an Initial Certification in the form annexed hereto as
Exhibit C to the effect that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in such certification as not covered by such
certification), (i) all documents required to be delivered to it pursuant to
this Agreement with respect to such Mortgage Loan are in its possession, (ii)
such documents have been reviewed by it and appear regular on their face and
relate to such Mortgage Loan and (iii) based on its examination and only as
to
the foregoing documents, the information set forth in items (i), (ii), (iii)(A),
(iv) and (v) of the definition of the “Mortgage Loan Schedule” accurately
reflects information set forth in the Mortgage File. None of the Custodian,
the
Trustee or the Master Servicer shall be under any duty to determine whether
any
Mortgage File should include any of the documents specified in clause (vi)
or
(vii) of Section 2.01. None of the Custodian, the Trustee or the Master Servicer
shall be under any duty or obligation to inspect, review or examine said
documents, instruments, certificates or other papers to determine that the
same
are genuine, enforceable or appropriate for the represented purpose or that
they
have actually been recorded, or they are in recordable form or that they are
other than what they purport to be on their face.
Within
90
days of the Closing Date, with respect to the Mortgage Loans, the Trustee,
or
the Custodian on its behalf, shall deliver to the Depositor, the Certificate
Insurer and the Master Servicer a Final Certification in the form annexed hereto
as Exhibit D evidencing the completeness of the Mortgage Files, with any
applicable exceptions noted thereon, with respect to all of the Mortgage
Loans.
If
in the
process of reviewing the Mortgage Files and preparing the certifications
referred to above the Custodian finds any document or documents constituting
a
part of a Mortgage File to be missing or defective in any material respect,
the
Custodian shall promptly notify the Sponsor, the Master Servicer, the
Certificate Insurer, the Trustee and the Depositor. The Trustee shall promptly
notify the Sponsor of such defect and request that the Sponsor cure any such
defect within 60 days from the date on which the Sponsor was notified of such
defect, and if the Sponsor does not cure such defect in all material respects
during such period, request on behalf of the Certificateholders that the Sponsor
purchase such Mortgage Loan from the Trust Fund at the Purchase Price within
90
days after the date on which the Sponsor was notified of such defect; provided
that if such defect would cause the Mortgage Loan to be other than a “qualified
mortgage” as defined in Section 860G(a)(3) of the Code, any such cure or
repurchase must occur within 90 days from the date such breach was discovered.
It is understood and agreed that the obligation of the Sponsor to cure a
material defect in, or purchase any Mortgage Loan as to which a material defect
in a constituent document exists shall constitute the sole remedy respecting
such defect available to the Certificateholders the Certificate Insurer or
the
Trustee on behalf of Certificateholders. The Purchase Price for the purchased
Mortgage Loan shall be deposited or caused to be deposited upon receipt by
the
Master Servicer in the Custodial Account and, upon receipt by the Trustee of
written notification of such deposit signed by a Servicing Officer, the
Custodian shall release or cause to be released to the Sponsor the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as the Sponsor shall require as
necessary to vest in the Sponsor ownership of any Mortgage Loan released
pursuant hereto and at such time the Trustee and the Custodian shall have no
further responsibility with respect to the related Mortgage File. In furtherance
of the foregoing, if the Sponsor is not a member of MERS and the Mortgage is
registered on the MERS® System, the Master Servicer, at its own expense and
without any right of reimbursement, shall cause MERS to execute and deliver
an
assignment of the Mortgage in recordable form to transfer the Mortgage from
MERS
to the Sponsor and shall cause such Mortgage to be removed from registration
on
the MERS® System in accordance with MERS’ rules and regulations.
67
Section
2.03. Representations,
Warranties and Covenants of the Master Servicer and the
Depositor.
(a) The
Master Servicer hereby represents and warrants to and covenants with the
Depositor and the Trustee for the benefit of Certificateholders and the
Certificate Insurer that:
(i) The
Master Servicer is, and throughout the term hereof shall remain, a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation (except as otherwise permitted pursuant to Section
6.02), the Master Servicer is, and shall remain, in compliance with the laws
of
each state in which any Mortgaged Property is located to the extent necessary
to
perform its obligations under this Agreement, and the Master Servicer is, and
shall remain, approved to sell mortgage loans to and service mortgage loans
for
Xxxxxx Xxx and Xxxxxxx Mac;
(ii) The
execution and delivery of this Agreement by the Master Servicer, and the
performance and compliance with the terms of this Agreement by the Master
Servicer, will not violate the Master Servicer’s 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) The
Master Servicer 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 Depositor
and the Trustee, constitutes a valid, legal and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, 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) The
Master Servicer 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 is likely to affect
materially and adversely either the ability of the Master Servicer to perform
its obligations under this Agreement or the financial condition of the Master
Servicer;
68
(vi) No
litigation is pending (other than litigation with respect to which pleadings
or
documents have been filed with a court, but not served on the Master Servicer)
or, to the best of the Master Servicer’s knowledge, threatened against the
Master Servicer which would prohibit its entering into this Agreement or
performing its obligations under this Agreement or is likely to affect
materially and adversely either the ability of the Master Servicer to perform
its obligations under this Agreement or the financial condition of the Master
Servicer;
(vii) The
Master Servicer will comply in all material respects in the performance of
this
Agreement with all reasonable rules and requirements of each insurer under
each
Insurance Policy;
(viii) The
execution of this Agreement and the performance of the Master Servicer’s
obligations hereunder do not require any license, consent or approval of any
state or federal court, agency, regulatory authority or other governmental
body
having jurisdiction over the Master Servicer, other than such as have been
obtained;
(ix) No
information, certificate of an officer, statement furnished in writing or report
delivered to the Depositor, any affiliate of the Depositor or the Trustee by
the
Master Servicer in its capacity as Master Servicer, and not in its capacity
as a
Sponsor hereunder, will, to the knowledge of the Master Servicer, contain any
untrue statement of a material fact;
(x) The
Master Servicer will not waive any Prepayment Charge unless it is waived in
accordance with the standard set forth in Section 3.01; and
(xi) The
Master Servicer is a member of MERS in good standing, and will comply in all
material respects with the rules and procedures of MERS in connection with
the
servicing of the Mortgage Loans that are registered with MERS.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.03(a) shall survive the execution and delivery of this
Agreement, and shall inure to the benefit of the Depositor, the Trustee, the
Certificate Insurer and the Certificateholders. Upon discovery by the Depositor,
the Trustee, the Certificate Insurer or the Master Servicer of a breach of
any
of the foregoing representations, warranties and covenants that materially
and
adversely affects the interests of the Depositor or the Trustee, the party
discovering such breach shall give prompt written notice to the other parties.
Notwithstanding the foregoing, within 90 days of the earlier of discovery by
the
Master Servicer or receipt of notice by the Master Servicer of the breach of
the
covenant of the Master Servicer set forth in Section 2.03(x) above which
materially and adversely affects the interests of the Holders of the Class
P
Certificates in any Prepayment Charge, the Master Servicer shall remedy such
breach as follows: the Master Servicer shall pay the amount of such waived
Prepayment Charge, for the benefit of the Holders of the Class P Certificates,
by depositing such amount into the Custodial Account (net of any amount actually
collected by the Master Servicer in respect of such Prepayment Charge and
remitted by the Master Servicer, for the benefit of the Holders of the Class
P
Certificates, in respect of such Prepayment Charge, into the Custodial Account).
The foregoing shall not, however, limit any remedies available to the
Certificateholders, the Depositor, the Certificate Insurer or the Trustee on
behalf of the Certificateholders, pursuant to the Mortgage Loan Purchase
Agreement respecting a breach of any of the representations, warranties and
covenants contained in the Mortgage Loan Purchase Agreement.
(b) The
Depositor hereby represents and warrants to the Master Servicer and the Trustee
for the benefit of Certificateholders and the Certificate Insurer that as of
the
Closing Date, the representations and warranties of the Sponsor with respect
to
the Mortgage Loans and the remedies therefor that are contained in the Mortgage
Loan Purchase Agreement are as set forth in Exhibit I hereto.
69
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.03(b) shall survive delivery of the respective Mortgage Files to
the
Custodian, on behalf of the Trustee.
Upon
discovery by either the Depositor, the Master Servicer, the Certificate Insurer
or the Trustee of a breach of any representation or warranty set forth in this
Section 2.03 which materially and adversely affects the interests of the
Certificateholders or the Certificate Insurer in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other
parties.
Section
2.04. Representations
and Warranties of the Sponsor.
The
Depositor hereby assigns to the Trustee for the benefit of Certificateholders
and the Certificate Insurer all of its rights (but none of its obligations)
in,
to and under the Mortgage Loan Purchase Agreement. Insofar as the Mortgage
Loan
Purchase Agreement relates to such representations and warranties and any
remedies provided thereunder for any breach of such representations and
warranties, such right, title and interest may be enforced by the Trustee on
behalf of the Certificateholders. Upon the discovery by the Depositor, the
Master Servicer, the Certificate Insurer or the Trustee of a breach of any
of
the representations and warranties made in the Mortgage Loan Purchase Agreement
in respect of any Mortgage Loan which materially and adversely affects the
interests of the Certificateholders or the Certificate Insurer in such Mortgage
Loan, the party discovering such breach shall give prompt written notice to
the
other parties. The Trustee shall promptly notify the Sponsor of such breach
and
request that the Sponsor shall, within 90 days from the date that the Sponsor
was notified or otherwise obtained knowledge of such breach, either (i) cure
such breach in all material respects or (ii) purchase such Mortgage Loan from
the Trust Fund at the Purchase Price and in the manner set forth in Section
2.02; provided that if such breach would cause the Mortgage Loan to be other
than a “qualified mortgage” as defined in Section 860G(a)(3) of the Code, any
such cure or repurchase must occur within 90 days from the date such breach
was
discovered. However, in the case of a breach under the Mortgage Loan Purchase
Agreement, subject to the approval of the Depositor the Sponsor shall have
the
option to substitute a Qualified Substitute Mortgage Loan or Loans for such
Mortgage Loan if such substitution occurs within two years following the Closing
Date, except that if the breach would cause the Mortgage Loan to be other than
a
“qualified mortgage” as defined in Section 860G(a)(3) of the Code, any such
substitution must occur within 90 days from the date the breach was discovered
if such 90 day period expires before two years following the Closing Date.
In
the event that the Sponsor elects to substitute a Qualified Substitute Mortgage
Loan or Loans for a Deleted Mortgage Loan pursuant to this Section 2.04, the
Trustee shall enforce the obligation of the Sponsor under the Mortgage Loan
Purchase Agreement to deliver to the Trustee and the Master Servicer, as
appropriate, with respect to such Qualified Substitute Mortgage Loan or Loans,
the original Mortgage Note, the Mortgage, an Assignment of the Mortgage in
recordable form, and such other documents and agreements as are required by
Section 2.01, with the Mortgage Note endorsed as required by Section 2.01.
No
substitution will be made in any calendar month after the Determination Date
for
such month. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution, to the extent received by the Master
Servicer or any Sub-Servicer, shall not be part of the Trust Fund and will
be
retained by the Master Servicer and remitted by the Master Servicer to the
Sponsor on the next succeeding Distribution Date. For the month of substitution,
distributions to Certificateholders will include the Monthly Payment due on
a
Deleted Mortgage Loan for such month and thereafter the Sponsor shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Depositor shall amend or cause to be amended the Mortgage Loan
Schedule for the benefit of the Certificateholders and the Certificate Insurer
to reflect the removal of such Deleted Mortgage Loan and the substitution of
the
Qualified Substitute Mortgage Loan or Loans and the Depositor shall deliver
the
amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the
Qualified Substitute Mortgage Loan or Loans shall be subject to the terms of
this Agreement in all respects, the Sponsor shall be deemed to have made the
representations and warranties with respect to the Qualified Substitute Mortgage
Loan contained in the Mortgage Loan Purchase Agreement as of the date of
substitution, and the Depositor shall be deemed to have made with respect to
any
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the
representations and warranties set forth in Exhibit I hereof (other than
representations (xiv), (xvi), (xxix) and (xxxiii) through (xli)).
70
In
connection with the substitution of one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine
the amount (the “Substitution Adjustment”), if any, by which the aggregate
principal balance of all such Qualified Substitute Mortgage Loans as of the
date
of substitution is less than the aggregate Stated Principal Balance of all
such
Deleted Mortgage Loans (in each case after application of the principal portion
of the Monthly Payments due in the month of substitution that are to be
distributed to Certificateholders in the month of substitution). The Trustee
shall enforce the obligation of the Sponsor under the Mortgage Loan Purchase
Agreement to provide the Master Servicer on the day of substitution for
immediate deposit into the Custodial Account the amount of such shortfall,
without any reimbursement therefor. In accordance with the Mortgage Loan
Purchase Agreement, the Sponsor shall give notice in writing to the Trustee
of
such event, which notice shall be accompanied by an Officers’ Certificate as to
the calculation of such shortfall and by an Opinion of Counsel to the effect
that such substitution will not cause (a) any federal tax to be imposed on
REMIC
1, REMIC 2 or REMIC 3, 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 portion of REMIC 1, REMIC 2 or REMIC 3 to fail to qualify as a REMIC
at
any time that any Certificate is outstanding. The costs of any substitution
as
described above, including any related assignments, opinions or other
documentation in connection therewith shall be borne by the
Sponsor.
Except
as
expressly set forth herein neither the Trustee nor the Master Servicer is under
any obligation to discover any breach of the above-mentioned representations
and
warranties. It is understood and agreed that the obligation of the Sponsor
to
cure such breach, purchase or to substitute for such Mortgage Loan as to which
such a breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to Certificateholders or the Trustee on behalf
of Certificateholders.
Section
2.05. Issuance
of Certificates; Conveyance of REMIC 1 Regular Interests and REMIC 2 Regular
Interests and Acceptance of REMIC 2 REMIC 3 by the Trustee.
(a) The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it or to a Custodian on its behalf of the Mortgage Files, subject to the
provisions of Sections 2.01 and 2.02, together with the assignment to it of
all
other assets included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery and in exchange
therefor, the Trustee, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has executed, authenticated and delivered to
or
upon the order of the Depositor, the Certificates in authorized denominations.
The interests evidenced by the Certificates, constitute the entire beneficial
ownership interest in the Trust Fund.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
1 Regular Interests for the benefit of the Holders of the REMIC 2 Regular
Interests and Holders of the Class R Certificates (as Holders of the Class
R-2
Interest). The Trustee acknowledges receipt of the REMIC 1 Regular Interests
(which are uncertificated) and declares that it holds and will hold the same
in
trust for the exclusive use and benefit of the Holders of the REMIC 2 Regular
Interests and Holders of the Class R Certificates (as Holders of the Class
R-2
Interest). The interests evidenced by the Class R-2 Interest, together with
the
REMIC 2 Regular Interests, constitute the entire beneficial ownership interest
in REMIC 2.
71
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
2 Regular Interests for the benefit of the Holders of the Regular Certificates
and Holders of the Class R Certificates (as Holders of the Class R-3 Interest).
The Trustee acknowledges receipt of the REMIC 2 Regular Interests (which are
uncertificated) and declares that it holds and will hold the same in trust
for
the exclusive use and benefit of the Holders of the Regular Certificates and
Holders of the Class R Certificates (as Holders of the Class R-3 Interest).
The
interests evidenced by the Class R-3 Interest, together with the Regular
Certificates, constitute the entire beneficial ownership interest in REMIC
3.
(d) In
exchange for the REMIC 2 Regular Interests and, concurrently with the assignment
to the Trustee thereof, pursuant to the written request of the Depositor
executed by an officer of the Depositor, the Trustee has executed, authenticated
and delivered to or upon the order of the Depositor, the Regular Certificates
in
authorized denominations evidencing (together with the Class R-3 Interest)
the
entire beneficial ownership interest in REMIC 3.
(e) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 and REMIC 2
(including the Residual Interest therein represented by the Class R-1 Interest
and Class R-2 Interest, respectively) and the acceptance by the Trustee thereof,
and (ii) the assignment and delivery to the Trustee of REMIC 3 (including the
Residual Interest therein represented by the Class R-3 Interest), and the
acceptance by the Trustee thereof, the Trustee, from and pursuant to the written
request of the Depositor executed by an officer of the Depositor, has executed,
authenticated and delivered to or upon the order of the Depositor, the Class
R
Certificates in authorized denominations evidencing the Class R-1 Interest,
the
Class R-2 Interest and Class R-3 Interest.
Section
2.06. [reserved].
Section
2.07. Purposes
and Powers of the Trust.
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
72
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or other than as required or authorized by the terms of this Agreement
while any Certificate is outstanding, and this Section 2.07 may not be amended,
without the consent of the Certificateholders evidencing 51% or more of the
aggregate voting rights of the Certificates.
73
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
TRUST FUND
Section
3.01. Master
Servicer to Act as Master Servicer.
The
Master Servicer shall supervise, or take such actions as are necessary to
ensure, the servicing and administration of the Mortgage Loans and any REO
Property in accordance with this Agreement and its normal servicing practices,
which generally shall conform to the standards (i) of the Servicing Guide,
if
Impac Funding Corporation is Master Servicer, or (ii) if Impac Funding
Corporation is not the Master Servicer, of an institution prudently servicing
mortgage loans for its own account and shall have full authority to do anything
it reasonably deems appropriate or desirable in connection with such servicing
and administration. To the extent consistent with the foregoing, the Master
Servicer shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge
only if such waiver would maximize recovery of total proceeds taking into
account the value of such Prepayment Charge and related Mortgage Loan and doing
so is standard and customary in servicing mortgage loans similar to the Mortgage
Loans (including any waiver of a Prepayment Charge in connection with a
refinancing of a Mortgage Loan that is related to a default or a reasonably
foreseeable default), and in no event will it waive a Prepayment Charge in
connection with a refinancing of a Mortgage Loan that is not related to a
default or a reasonably foreseeable default.
The
Master Servicer may perform its responsibilities relating to servicing through
other agents or independent contractors, but shall not thereby be released
from
any of its responsibilities as hereinafter set forth. The authority of the
Master Servicer, in its capacity as master servicer, and any Sub-Servicer acting
on its behalf, shall include, without limitation, the power to (i) consult
with
and advise any Sub-Servicer regarding administration of a related Mortgage
Loan,
(ii) approve any recommendation by a Sub-Servicer to foreclose on a related
Mortgage Loan, (iii) supervise the filing and collection of insurance claims
and
take or cause to be taken such actions on behalf of the insured Person
thereunder as shall be reasonably necessary to prevent the denial of coverage
thereunder, and (iv) effectuate foreclosure or other conversion of the ownership
of the Mortgaged Property securing a related Mortgage Loan, including the
employment of attorneys, the institution of legal proceedings, the collection
of
deficiency judgments, the acceptance of compromise proposals, the filing of
claims under any Insurance Policy and any other matter pertaining to a
delinquent Mortgage Loan. The authority of the Master Servicer shall include,
in
addition, the power on behalf of the Certificateholders, the Trustee or any
of
them to (i) execute and deliver customary consents or waivers and other
instruments and documents, (ii) consent to transfer of any related Mortgaged
Property and assumptions of the related Mortgage Notes and Security Instruments
(in the manner provided in this Agreement) and (iii) collect any Insurance
Proceeds and Liquidation Proceeds. If permitted under applicable law without
predjudicing any rights of the Trust Fund with respect to any Mortgage Loan,
the
Master Servicer, with such documentation as local law requires, acting in its
own name, may pursue claims on behalf of the Trust Fund. Without limiting the
generality of the foregoing, the Master Servicer and any Sub-Servicer acting
on
its behalf may, and is hereby authorized, and empowered by the Trustee to,
execute and deliver, on behalf of itself, the Certificateholders or the Trustee
or any of them, any instruments of satisfaction, cancellation, partial or full
release, discharge and all other comparable instruments, with respect to the
related Mortgage Loans, the Insurance Policies and the accounts related thereto,
and the Mortgaged Properties. The Master Servicer may exercise this power in
its
own name or in the name of a Sub-Servicer.
74
Subject
to Section 3.16, the Trustee shall execute, at the written request of the Master
Servicer, and furnish to the Master Servicer and any Sub-Servicer such documents
as are necessary or appropriate to enable the Master Servicer or any
Sub-Servicer to carry out their servicing and administrative duties hereunder,
and the Trustee hereby grants to the Master Servicer a power of attorney to
carry out such duties. The Trustee shall not be liable for the actions of the
Master Servicer or any Sub-Servicers under such powers of attorney.
In
accordance with the standards of the preceding paragraph, the Master Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.09, and further as
provided in Section 3.11; provided that the Master Servicer shall not be
obligated to make such advance if, in its good faith judgment, the Master
Servicer determines that such advance to be a Nonrecoverable
Advance.
The
Master Servicer is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of any
Subservicer, when the Master Servicer or such Subservicer, as the case may
be,
believes it is appropriate in its best judgment to register any Mortgage Loan
on
the MERS® System, or cause the removal from the registration of any Mortgage
Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and
the Certificateholders or any of them, any and all instruments of assignment
and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any expenses incurred in connection with the actions
described in the preceding sentence shall be borne by the Master Servicer in
accordance with Section 3.17, with no right of reimbursement; provided, that
if,
as a result of MERS discontinuing or becoming unable to continue operations
in
connection with the MERS System, it becomes necessary to remove any Mortgage
Loan from registration on the MERS System and to arrange for the assignment
of
the related Mortgages to the Trustee, then any related expenses shall be
reimbursable to the Master Servicer from the Trust Fund.
Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not
(unless the Mortgagor is in default with respect to the Mortgage Loan or such
default is, in the judgment of the Master Servicer, reasonably foreseeable)
make
or permit any modification, waiver or amendment of any term of any Mortgage
Loan
that would both (i) effect an exchange or reissuance of such Mortgage Loan
under
Section 1001 of the Code (or Treasury regulations promulgated thereunder) and
(ii) cause any of REMIC 1, REMIC 2 or REMIC 3 to fail to qualify as a REMIC
under the Code or the imposition of any tax on “prohibited transactions” or
“contributions” after the startup date under the REMIC Provisions.
75
The
relationship of the Master Servicer (and of any successor to the Master Servicer
under this Agreement) to the Trustee under this Agreement is intended by the
parties to be that of an independent contractor and not that of a joint
venturer, partner or agent.
Section
3.02. Sub-Servicing
Agreements Between Master Servicer and Sub-Servicers.
(a) The
Master Servicer may enter into Sub-Servicing Agreements with Sub-Servicers
for
the servicing and administration of the Mortgage Loans and for the performance
of any and all other activities of the Master Servicer hereunder; provided,
however, that such agreements would not result in a withdrawal or a downgrading
by Standard & Poor’s of its rating on any Class of Certificates. Each
Sub-Servicer shall be either (i) an institution the accounts of which are
insured by the FDIC or (ii) another entity that engages in the business of
originating or servicing mortgage loans comparable to the Mortgage Loans, and
in
either case shall be authorized to transact business in the state or states
in
which the related Mortgaged Properties it is to service are situated, if and
to
the extent required by applicable law to enable the Sub-Servicer to perform
its
obligations hereunder and under the Sub-Servicing Agreement, and in either
case
shall be a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer. Any
Sub-Servicing Agreement entered into by the Master Servicer shall include the
provision that such Agreement may be immediately terminated (x) with cause
and
without any termination fee by any Master Servicer hereunder or (y) without
cause in which case the Master Servicer shall be responsible for any termination
fee or penalty resulting therefrom. In addition, each Sub-Servicing Agreement
shall provide for servicing of the Mortgage Loans consistent with the terms
of
this Agreement. With the consent of the Trustee, the Master Servicer and the
Sub-Servicers may enter into Sub-Servicing Agreements and make amendments to
the
Sub-Servicing Agreements or enter into different forms of Sub-Servicing
Agreements providing for, among other things, the delegation by the Master
Servicer to a Sub-Servicer of additional duties regarding the administration
of
the Mortgage Loans; provided, however, that any such amendments or different
forms shall be consistent with and not violate the provisions of this Agreement,
and that no such amendment or different form shall be made or entered into
which
could be reasonably expected to be materially adverse to the interests of the
Certificateholders, without the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights. The parties hereto acknowledge that the
initial Sub-Servicer shall be ___________.
The
Master Servicer has entered into a Sub-Servicing Agreement with ___________
for
the servicing and administration of the Mortgage Loans and may enter into
additional Sub-Servicing Agreements with Sub-Servicers acceptable to the Trustee
for the servicing and administration of certain of the Mortgage
Loans.
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(b) As
part
of its servicing activities hereunder, the Master Servicer, for the benefit
of
the Trustee, the Certificate Insurer and the Certificateholders, shall enforce
the obligations of each Sub-Servicer under the related Sub-Servicing Agreement.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-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 Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, but shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loan or (ii) from a specific recovery
of
costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed.
(c) The
Master Servicer represents that it has entered into a contract regarding the
sale of sub-servicing rights with respect to substantially all of the Mortgage
Loans with ___________ and shall transfer the subservicing of substantially
all
of the Mortgage Loans from ___________ to ___________ on or about _________
___,
200_. The Trustee hereby consents to such transfer.
(d) The
Master Servicer represents that it will cause any Sub-Servicer to accurately
and
fully report its borrower credit files to all three credit repositories in
a
timely manner.
Section
3.03. Successor
Sub-Servicers.
The
Master Servicer shall be entitled to terminate any Sub-Servicing Agreement
and
the rights and obligations of any Sub-Servicer pursuant to any Sub-Servicing
Agreement in accordance with the terms and conditions of such Sub-Servicing
Agreement. In the event of termination of any Sub-Servicer, all servicing
obligations of such Sub-Servicer shall be assumed simultaneously by the Master
Servicer without any act or deed on the part of such Sub-Servicer or the Master
Servicer, and the Master Servicer either shall service directly the related
Mortgage Loans or shall enter into a Sub-Servicing Agreement with a successor
Sub-Servicer which qualifies under Section 3.02.
Section
3.04. Liability
of the Master Servicer.
Notwithstanding
any Sub-Servicing Agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Master Servicer and a Sub-Servicer or
reference to actions taken through a Sub-Servicer or otherwise, the Master
Servicer shall under all circumstances remain obligated and primarily liable
to
the Trustee and Certificateholders for the servicing and administering of the
Mortgage Loans and any REO Property in accordance with the provisions of Article
III without diminution of such obligation or liability by virtue of such
Sub-Servicing Agreements or arrangements or by virtue of indemnification from
the Sub-Servicer and to the same extent and under the same terms and conditions
as if the Master Servicer alone were servicing and administering the Mortgage
Loans. For purposes of this Agreement, the Master Servicer shall be deemed
to
have received payments on Mortgage Loans when the Sub-Servicer has received
such
payments. The Master Servicer shall be entitled to enter into any agreement
with
a Sub-Servicer for indemnification of the Master Servicer by such Sub-Servicer
and nothing contained in this Agreement shall be deemed to limit or modify
such
indemnification.
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Section
3.05. No
Contractual Relationship Between Sub-Servicers and Trustee or
Certificateholders.
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such and not as an originator shall be deemed to be between the Sub-Servicer
and the Master Servicer alone, and the Trustee and Certificateholders shall
not
be deemed parties thereto and shall have no claims, rights, obligations, duties
or liabilities with respect to the Sub-Servicer except as set forth in Section
3.06. The Master Servicer (or Sub-Servicer) shall be liable for the payment
of
any franchise taxes which may be assessed by the California Franchise Tax Board
in connection with the activities of the Trust under this
Agreement.
Section
3.06. Assumption
or Termination of Sub-Servicing Agreements by Trustee.
(a) If
the
Trustee or its designee shall assume the master servicing obligations of the
Master Servicer in accordance with Section 7.02 below, the Trustee, to the
extent necessary to permit the Trustee to carry out the provisions of Section
7.02 with respect to the Mortgage Loans, shall succeed to all of the rights
and
obligations of the Master Servicer under each of the Sub-Servicing Agreements.
In such event, the Trustee or its designee as the successor master servicer
shall be deemed to have assumed all of the Master Servicer’s rights and
obligations therein and to have replaced the Master Servicer as a party to
such
Sub-Servicing Agreements to the same extent as if such Sub-Servicing Agreements
had been assigned to the Trustee or its designee as a successor master servicer,
except that the Trustee or its designee as a successor master servicer shall
not
be deemed to have assumed any obligations or liabilities of the Master Servicer
arising prior to such assumption (other than the obligation to make any Advances
hereunder) and the Master Servicer shall not thereby be relieved of any
liability or obligations under such Sub-Servicing Agreements arising prior
to
such assumption. Nothing in the foregoing shall be deemed to entitle the Trustee
or its designee as a successor master servicer at any time to receive any
portion of the servicing compensation provided under Section 3.17 except for
such portion as the Master Servicer would be entitled to receive.
(b) In
the
event that the Trustee or its designee as successor master servicer for the
Trustee assumes the servicing obligations of the Master Servicer under Section
7.02, upon the reasonable request of the Trustee or such designee as successor
master servicer the Master Servicer shall at its own expense deliver to the
Trustee, or at its written request to such designee, photocopies of all
documents, files and records, electronic or otherwise, relating to the
Sub-Servicing Agreements and the related Mortgage Loans or REO Property then
being serviced and an accounting of amounts collected and held by it, if any,
and will otherwise cooperate and use its reasonable efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreements, or
responsibilities hereunder to the Trustee, or at its written request to such
designee as successor master servicer.
78
Section
3.07. Collection
of Certain Mortgage Loan Payments.
(a) The
Master Servicer will coordinate and monitor remittances by Sub-Servicers to
the
Master Servicer with respect to the Mortgage Loans in accordance with this
Agreement.
(b) The
Master Servicer shall make its reasonable efforts to collect or cause to be
collected all payments required under the terms and provisions of the Mortgage
Loans and shall follow, and use its reasonable efforts to cause Sub-Servicers
to
follow, collection procedures comparable to the collection procedures of prudent
mortgage lenders servicing mortgage loans for their own account to the extent
such procedures shall be consistent with this Agreement. Consistent with the
foregoing, the Master Servicer may in its discretion (i) waive or permit to
be
waived any late payment charge, prepayment charge, assumption fee, or any
penalty interest in connection with the prepayment of a Mortgage Loan and (ii)
suspend or reduce or permit to be suspended or reduced regular monthly payments
for a period of up to six months, or arrange or permit an arrangement with
a
Mortgagor for a scheduled liquidation of delinquencies. In the event the Master
Servicer shall consent to the deferment of the due dates for payments due on
a
Mortgage Note, the Master Servicer shall nonetheless make an Advance or shall
cause the related Sub-Servicer to make an advance to the same extent as if
such
installment were due, owing and delinquent and had not been deferred through
liquidation of the Mortgaged Property; provided,
however,
that
the obligation of the Master Servicer or related Sub-Servicer to make an Advance
shall apply only to the extent that the Master Servicer believes, in good faith,
that such advances are not Nonrecoverable Advances.
(c) On
each
Determination Date, with respect to each Mortgage Loan for which during the
related Prepayment Period the Master Servicer has determined that all amounts
which it expects to recover from or on account of each such Mortgage Loan have
been recovered and that no further Liquidation Proceeds will be received in
connection therewith, the Master Servicer shall provide to the Trustee a
certificate of a Servicing Officer that such Mortgage Loan became a Liquidated
Mortgage Loan in a Cash Liquidation or REO Disposition.
The
Master Servicer shall make reasonable efforts to collect all payments called
for
under the terms and provisions of the Mortgage Loans, and shall, to the extent
such procedures shall be consistent with this Agreement and the terms and
provisions of any related Insurance Policy, follow such collection procedures
as
it would follow with respect to mortgage loans comparable to the Mortgage Loans
and held for its own account. The Master Servicer shall not be required to
institute or join in litigation with respect to collection of any payment
(whether under a Mortgage, Mortgage Note, Primary Hazard Insurance Policy or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that it is prohibited by
applicable law from enforcing the provision of the Mortgage or other instrument
pursuant to which such payment is required. The Master Servicer shall be
responsible for preparing and distributing all information statements relating
to payments on the Mortgage Loans, in accordance with all applicable federal
and
state tax laws and regulations.
79
Section
3.08. Sub-Servicing
Accounts.
In
those
cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to a
Sub-Servicing Agreement, the Sub-Servicer will be required to establish and
maintain one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall otherwise be
acceptable to the Master Servicer. All amounts held in a Sub-Servicing Account
shall be held in trust for the Trustee for the benefit of the Certificateholders
and the Certificate Insurer. Any investment of funds held in such an account
shall be in Permitted Investments maturing not later than the Business Day
immediately preceding the next Sub-Servicer Remittance Date. The Sub-Servicer
will be required to deposit into the Sub-Servicing Account no later than two
Business Days after receipt all proceeds of Mortgage Loans received by the
Sub-Servicer, less its servicing compensation and any unreimbursed expenses
and
advances, to the extent permitted by the Sub-Servicing Agreement. On each
Sub-Servicer Remittance Date the Sub-Servicer will be required to remit to
the
Master Servicer for deposit in the Custodial Account all funds held in the
Sub-Servicing Account with respect to any Mortgage Loan as of the Sub-Servicer
Remittance Date, after deducting from such remittance an amount equal to the
servicing compensation (including interest on Permitted Investments) and
unreimbursed expenses and advances to which it is then entitled pursuant to
the
related Sub-Servicing Agreement, to the extent not previously paid to or
retained by it. In addition, on each Sub-Servicer Remittance Date the
Sub-Servicer will be required to remit to the Master Servicer any amounts
required to be advanced pursuant to the related Sub-Servicing Agreement. The
Sub-Servicer will also be required to remit to the Master Servicer, within
five
Business Days of receipt, the proceeds of any Principal Prepayment made by
the
Mortgagor, and, on each Sub-Servicer Remittance Date, the amount of any
Insurance Proceeds or Liquidation Proceeds received during the related
Prepayment Period.
Section
3.09. Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
The
Master Servicer and the Sub-Servicers shall establish and maintain one or more
accounts (the “Servicing Accounts”), and shall deposit and retain therein all
collections from the Mortgagors (or related advances from Sub-Servicers) for
the
payment of taxes, assessments, Primary Hazard Insurance Policy premiums, and
comparable items for the account of the Mortgagors, to the extent that the
Master Servicer customarily escrows for such amounts. Withdrawals of amounts
so
collected from a Servicing Account may be made only to (i) effect payment of
taxes, assessments, Primary Hazard Insurance Policy premiums and comparable
items; (ii) reimburse the Master Servicer (or a Sub-Servicer to the extent
provided in the related Sub-Servicing Agreement) out of related collections
for
any payments made pursuant to Sections 3.01 (with respect to taxes and
assessments), and 3.13 (with respect to Primary Hazard Insurance Policies);
(iii) refund to Mortgagors any sums as may be determined to be overages; or
(iv)
clear and terminate the Servicing Account at the termination of this Agreement
pursuant to Section 9.01. As part of its servicing duties, the Master Servicer
or Sub-Servicers shall, if and to the extent required by law, pay to the
Mortgagors interest on funds in Servicing Accounts from its or their own funds,
without any reimbursement therefor.
80
Section
3.10. Custodial
Account.
(a) The
Master Servicer shall establish and maintain one or more accounts (collectively,
the “Custodial Account”) in which the Master Servicer shall deposit or cause to
be deposited on a daily basis, or as and when received and identified from
the
Sub-Servicers, the following payments and collections received or made by or
on
behalf of it subsequent to the Cut-off Date with respect to the Mortgage Loans,
or payments received by it prior to the Cut-off Date but allocable to a period
subsequent thereto (other than in respect of principal and interest on the
Mortgage Loans due on or before the Cut-off Date):
(i) all
payments (including advances by a Sub-Servicer) on account of principal,
including Principal Prepayments, on the Mortgage Loans;
(ii) all
payments (including advances by a Sub-Servicer) on account of interest on the
Mortgage Loans, net of any portion thereof retained by the Master Servicer
or
any Sub-Servicer as Servicing Fees;
(iii) all
Insurance Proceeds, other than proceeds that represent reimbursement of costs
and expenses incurred by the Master Servicer or any Sub-Servicer in connection
with presenting claims under the related Insurance Policies, Liquidation
Proceeds and REO Proceeds;
(iv) all
proceeds of any Mortgage Loan or REO Property repurchased or purchased in
accordance with Sections 2.02, 2.04, 3.14 or 9.01; and all amounts required
to
be deposited in connection with the substitution of a Qualified Substitute
Mortgage Loan pursuant to Section 2.04; and
(v) any
amounts required to be deposited pursuant to Section 3.12, 3.13, 3.15 or
3.22.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive.
In the event the Master Servicer shall deposit in the Custodial Account any
amount not required to be deposited therein, it may withdraw such amount from
the Custodial Account, any provision herein to the contrary notwithstanding.
The
Custodial Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage pass-through certificates of other
series, and the other accounts of the Master Servicer.
(b) Funds
in
the Custodial Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. The Master Servicer shall give
notice to the Trustee and the Depositor of the location of the Custodial Account
after any change thereof.
81
Section
3.11. Permitted
Withdrawals From the Custodial Account.
The
Master Servicer may, from time to time as provided herein, make withdrawals
from
the Custodial Account of amounts on deposit therein pursuant to Section 3.10
that are attributable to the Mortgage Loans for the following
purposes:
(i) to
make
deposits into the Certificate Account in the amounts and in the manner provided
for in Section 4.01;
(ii) to
pay to
itself, the Depositor, the Sponsor or any other appropriate person, as the
case
may be, with respect to each Mortgage Loan that has previously been purchased
or
repurchased pursuant to Sections 2.02, 2.04, 3.14 or 9.01 all amounts received
thereon and not yet distributed as of the date of purchase or
repurchase;
(iii) to
reimburse itself or any Sub-Servicer for Advances not previously reimbursed,
the
Master Servicer’s or any Sub-Servicer’s right to reimbursement pursuant to this
clause (iii) being limited to amounts received which represent Late Collections
(net of the related Servicing Fees) of Monthly Payments on Mortgage Loans with
respect to which such Advances were made and as further provided in Section
3.15;
(iv) to
reimburse or pay itself, the Trustee or the Depositor for expenses incurred
by
or reimbursable to the Master Servicer, the Trustee or the Depositor pursuant
to
Sections 3.22, 6.03, 8.05 or 10.01(g), except as otherwise provided in such
Sections hereof;
(v) to
reimburse itself or any Sub-Servicer for costs and expenses incurred by or
reimbursable to it relating to the prosecution of any claims pursuant to Section
3.13 that are in excess of the amounts so recovered;
(vi) to
reimburse itself or any Sub-Servicer for unpaid Master Servicing Fees,
Sub-Servicing Fees and unreimbursed Servicing Advances, the Master Servicer’s or
any Sub-Servicer’s right to reimbursement pursuant to this clause (vi) with
respect to any Mortgage Loan being limited to late recoveries of the payments
for which such advances were made pursuant to Section 3.01 or Section 3.09
and
any other related Late Collections;
(vii) to
pay
itself as servicing compensation (in addition to the Master Servicing Fee and
Sub-Servicing Fee), on or after each Distribution Date, any interest or
investment income earned on funds deposited in the Custodial Account for the
period ending on such Distribution Date;
(viii) to
reimburse itself or any Sub-Servicer for any Advance or Servicing Advance
previously made, after a Realized Loss has been allocated with respect to the
related Mortgage Loan if the Advance or Servicing Advance was not reimbursed
pursuant to clauses (iii) and (vi);
(ix) to
pay
the PMI Insurer the premium under the PMI Insurer Policy; and
82
(x) to
clear
and terminate the Custodial Account at the termination of this Agreement
pursuant to Section 9.01.
The
Master Servicer shall keep and maintain separate accounting records on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Custodial Account pursuant to such subclauses (ii) through
(x). Reconciliations will be prepared for the Custodial Account within 45
Calendar days after the bank statement cut-off date. All items requiring
reconciliation will be resolved within 90 calendar days of their original
identification.
Section
3.12. Permitted
Investments.
Any
institution maintaining the Custodial Account shall at the direction of the
Master Servicer invest the funds in such account in Permitted Investments,
each
of which shall mature not later than (i) 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 Trustee is the obligor
thereon, 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 Trustee is the
obligor thereon and shall not be sold or disposed of prior to its maturity.
All
income and gain realized from any such investment as well as any interest earned
on deposits in the Custodial Account shall be for the benefit of the Master
Servicer. The Master Servicer shall deposit in the Custodial Account an amount
equal to the amount of any loss incurred in respect of any such investment
immediately upon realization of such loss without right of
reimbursement.
The
Trustee or its Affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments.
Funds
on
deposit in the Net WAC Shortfall Reserve Fund Deposit may be invested in
Permitted Investments in accordance with this Section 3.12 subject to any
limitations set forth in Section 4.08 (with respect to the Net WAC Shortfall
Reserve Fund) and any investment earnings or interest paid shall accrue to
the
benefit of the party designated in such section and the party so designated
shall deposit in the related account from its own funds the amount of any loss
incurred on Permitted Investments in such account.
83
Section
3.13. Maintenance
of Primary Hazard Insurance.
(a) The
Master Servicer shall cause to be maintained for each Mortgage Loan primary
hazard insurance by a Qualified Insurer or other insurer satisfactory to the
Rating Agencies with extended coverage on the related Mortgaged Property in
an
amount equal to the lesser of (i) 100% of the replacement value of the
improvements, as determined by the insurance company, on such Mortgaged Property
or (ii) the unpaid principal balance of the Mortgage Loan. The Master Servicer
shall also cause to be maintained on property acquired upon foreclosure, or
deed
in lieu of foreclosure, of any Mortgage Loan, fire insurance with extended
coverage in an amount equal to the replacement value of the improvements
thereon. Any costs incurred in maintaining any insurance described in this
Section 3.13 (other than any deductible described in the last paragraph hereof)
shall be recoverable as a Servicing Advance. The Master Servicer shall not
be
obligated to advance any amounts pursuant to this Section 3.13 if, in its good
faith judgment, the Master Servicer determines that such advance would be a
Nonrecoverable Advance. Pursuant to Section 3.10, any amounts collected by
the
Master Servicer under any such policies (other than amounts to be applied to
the
restoration or repair of the related Mortgaged Property or property thus
acquired or amounts released to the Mortgagor in accordance with the Master
Servicer’s normal servicing procedures) shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 3.11. Any cost incurred
by
the Master Servicer in maintaining any such insurance shall not, for the purpose
of calculating monthly distributions to Certificateholders, be added to the
amount owing under the Mortgage Loan, notwithstanding that the terms of the
Mortgage Loan so permit. It is understood and agreed that no earthquake or
other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage 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.
The
Master Servicer shall, or shall cause the related Sub-Servicer to, exercise
its
best reasonable efforts to maintain and keep in full force and effect each
Primary Insurance Policy by a Qualified Insurer, or other insurer satisfactory
to the Rating Agencies, with respect to each first lien Mortgage Loan as to
which as of the Cut-Off Date such a Primary Insurance Policy was in effect
(or,
in the case of a Qualified Substitute Mortgage Loan, the date of substitution)
and the original principal amount of the related Mortgage Note exceeded 80%
of
the Collateral Value in an amount at least equal to the excess of such original
principal amount over 75% of such Collateral Value until the principal amount
of
any such first lien Mortgage Loan is reduced below 80% of the Collateral Value
or, based upon a new appraisal, the principal amount of such first lien Mortgage
Loan represents less than 80% of the new appraised value. The Master Servicer
shall, or shall cause the related Sub-Servicer to, effect the timely payment
of
the premium on each Primary Insurance Policy. The Master Servicer and the
related Sub-Servicer shall have the power to substitute for any Primary
Insurance Policy another substantially equivalent policy issued by another
Qualified Insurer, provided,
that,
such
substitution shall be subject to the condition that it will not cause the
ratings on the Certificates to be downgraded or withdrawn, as evidenced in
writing from each Rating Agency.
The
Master Servicer shall cooperate with the PMI Insurer and shall use its best
efforts to furnish all reasonable aid, evidence and information in the
possession of the Master Servicer or to which the Master Servicer has access
with respect to any PMI Mortgage Loan.
84
In
the
event of a default by PMI Insurer under the PMI Insurer Policy (a “Replacement
Event”), the Master Servicer shall use its best efforts to obtain a substitute
lender-paid primary mortgage insurance policy (a “Substitute PMI Policy”), with
the approval of the Certificate Insurer; provided,
however,
that
the Master Servicer shall not be obligated, and shall have no liability for
failing, to obtain a Substitute PMI Policy unless such Substitute PMI Policy
can
be obtained on the following terms and conditions: (i) the Certificates shall
be
rated no lower than the rating assigned by each Rating Agency to the
Certificates immediately prior to such Replacement Event, as evidenced by a
letter from each Rating Agency addressed to the Depositor, the Master Servicer
and the Trustee, (ii) the timing and mechanism for drawing on such new
Substitute PMI Policy shall be reasonably acceptable to the Master Servicer
and
the Trustee and (iii) the premiums under the proposed Substitute PMI Policy
shall not exceed such premiums under the existing PMI Insurer
Policy.
With
respect to the PMI Mortgage Loans covered by a PMI Insurer Policy, the Master
Servicer will confirm with PMI Insurer, and PMI Insurer will certify to the
Trustee, on or before __________ ___, 200_, that the Mortgage Loans indicated
on
the Mortgage Loan Schedule as being covered by PMI Insurer Policy are so
covered.
No
earthquake or other additional insurance is to be required of any Mortgagor
or
maintained on property acquired with respect to a security instrument other
than
pursuant to such applicable laws and regulations as shall at any time be in
force and shall require such additional insurance. When, at the time of
origination of the Mortgage Loan or at any subsequent time, the Mortgaged
Property is located in a federally designated special flood hazard area, the
Master Servicer shall cause with respect to the Mortgage Loans and each REO
Property flood insurance (to the extent available and in accordance with
mortgage servicing industry practice) to be maintained. Such flood insurance
shall cover the Mortgaged Property, including all items taken into account
in
arriving at the Collateral Value on which the Mortgage Loan was based, and
shall
be in an amount equal to the lesser of (i) the Stated Principal Balance of
the
related Mortgage Loan and (ii) the minimum amount required under the terms
of
coverage to compensate for any damage or loss on a replacement cost basis,
but
not more than the maximum amount of such insurance available for the related
Mortgaged Property under either the regular or emergency programs of the
National Flood Insurance Program (assuming that the area in which such Mortgaged
Property is located is participating in such program). Unless applicable state
law requires a higher deductible, the deductible on such flood insurance may
not
exceed $1,000 or 1% of the applicable amount of coverage, whichever is
less.
In
the
event that the Master Servicer shall obtain and maintain a blanket fire
insurance policy with extended coverage insuring against hazard losses on all
of
the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first two sentences of this Section 3.13, it
being understood and agreed that such policy may contain a deductible clause,
in
which case the Master Servicer shall, in the event that there shall not have
been maintained on the related Mortgaged Property a policy complying with the
first two sentences of this Section 3.13 and there shall have been a loss which
would have been covered by such policy, deposit in the Certificate Account
from
its own funds the amount not otherwise payable under the blanket policy because
of such deductible clause. Any such deposit by the Master Servicer shall be
made
on the Certificate Account Deposit Date next preceding the Distribution Date
which occurs in the month following the month in which payments under any such
policy would have been deposited in the Custodial Account. Any such deposit
shall not be deemed Servicing Advances and the Master Servicer shall not be
entitled to reimbursement therefor. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees
to
present, on behalf of itself, the Trustee and Certificateholders, claims under
any such blanket policy.
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Section
3.14. Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
The
Master Servicer will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether
by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note or the Mortgage),
exercise or cause to be exercised its rights to accelerate the maturity of
such
Mortgage Loan under any “due-on-sale” clause applicable thereto; provided,
however,
that
the Master Servicer shall not exercise any such rights if it reasonably believes
that it is prohibited by law from doing so. The Master Servicer or the related
Sub-Servicer may repurchase a Mortgage Loan at the Purchase Price when the
Master Servicer requires acceleration of the Mortgage Loan, but only if the
Master Servicer is satisfied, as evidenced by an Officer’s Certificate delivered
to the Trustee, that either (i) such Mortgage Loan is in default or default
is
reasonably foreseeable or (ii) if such Mortgage Loan is not in default or
default is not reasonably foreseeable, such repurchase will have no adverse
tax
consequences for the Trust Fund or any Certificateholder. If the Master Servicer
is unable to enforce such “due-on-sale” clause (as provided in the second
preceding sentence) or if no “due-on-sale” clause is applicable, the Master
Servicer or the Sub-Servicer is authorized to enter into an assumption and
modification agreement with the Person to whom such property has been conveyed
or is proposed to be conveyed, pursuant to which such Person becomes liable
under the Mortgage Note and, to the extent permitted by applicable state law,
the Mortgagor remains liable thereon; provided,
however,
that
the Master Servicer shall not enter into any assumption and modification
agreement if the coverage provided under the Primary Insurance Policy, if any,
would be impaired by doing so. The Master Servicer shall notify the Trustee,
whenever possible, before the completion of such assumption agreement, and
shall
forward to the Custodian the original copy of such assumption agreement, which
copy shall be added by the Custodian to the related Mortgage File and which
shall, for all purposes, be considered a part of such Mortgage File to the
same
extent as all other documents and instruments constituting a part thereof.
In
connection with any such assumption agreement, the interest rate on the related
Mortgage Loan shall not be changed and no other material alterations in the
Mortgage Loan shall be made unless such material alteration would not cause
any
of REMIC 1, REMIC 2 or REMIC 3 to fail to qualify as a REMIC for federal income
tax purposes, as evidenced by an Opinion of Counsel. The Master Servicer is
also
authorized to enter into a substitution of liability agreement with such Person,
pursuant to which the original Mortgagor is released from liability and such
Person is substituted as the Mortgagor and becomes liable under the Mortgage
Note. Any fee collected by or on behalf of the Master Servicer for entering
into
an assumption or substitution of liability agreement will be retained by or
on
behalf of the Master Servicer as additional servicing compensation. In
connection with any such assumption, no material term of the Mortgage Note
(including but not limited to the Mortgage Rate, the amount of the Monthly
Payment and any other term affecting the amount or timing of payment on the
Mortgage Loan) may be changed. The Master Servicer shall not enter into any
substitution or assumption if such substitution or assumption shall (i) both
constitute a “significant modification” effecting an exchange or reissuance of
such Mortgage Loan under the Code (or Treasury regulations promulgated
thereunder) and cause any of REMIC 1, REMIC 2 or REMIC 3 to fail to qualify
as a
REMIC under the REMIC Provisions or (ii) cause the imposition of any tax on
“prohibited transactions” or “contributions” after the Startup Day under the
REMIC Provisions. The Master Servicer shall notify the Trustee that any such
substitution or assumption agreement has been completed by forwarding to the
Custodian the original copy of such substitution or assumption agreement, which
copy shall be added to the related Mortgage File and shall, for all purposes,
be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. A portion equal to up
to
2% of the Collateral Value of the related Mortgage Loan, of any fee or
additional interest collected by the related Sub-Servicer for consenting in
any
such conveyance or entering into any such assumption agreement may be retained
by the related Sub-Servicer as additional servicing compensation.
86
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Master
Servicer shall not be deemed to be in default, breach or any other violation
of
its obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or any assumption that the Master Servicer may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this Section
3.14, the term “assumption” is deemed to also include a sale of a Mortgaged
Property that is not accompanied by an assumption or substitution of liability
agreement.
Section
3.15. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall exercise reasonable efforts, consistent with the
procedures that the Master Servicer would use in servicing loans for its own
account, to foreclose upon or otherwise comparably convert (which may include
an
REO Acquisition) the ownership of properties securing such of the Mortgage
Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07, and which are not released from the Trust Fund pursuant to any
other provision hereof. The Master Servicer shall use reasonable efforts to
realize proceeds from such defaulted Mortgage Loans in such manner (including
short sales and passing through to the Trust Fund less than the full amount
it
expects to receive from the related Mortgage Loan) as will maximize the receipt
of principal and interest by Certificateholders, taking into account, among
other things, the timing of foreclosure proceedings. The foregoing is subject
to
the provisions that, in any case in which Mortgaged Property shall have suffered
damage from an Uninsured Cause, the Master Servicer shall not be required to
expend its own funds toward the restoration of such property unless it shall
determine in its sole discretion (i) that such restoration will increase the
net
proceeds of liquidation of the related Mortgage Loan to Certificateholders
and
the Certificate Insurer after reimbursement to itself for such expenses, and
(ii) that such expenses will be recoverable by the Master Servicer through
Insurance Proceeds or Liquidation Proceeds from the related Mortgaged Property,
as contemplated in Section 3.11. The Master Servicer shall be responsible for
all other costs and expenses incurred by it in any such proceedings;
provided,
however,
that it
shall be entitled to reimbursement thereof from the related property, as
contemplated in Section 3.11.
The
proceeds of any Cash Liquidation or REO Disposition, as well as any recovery
resulting from a partial collection of Insurance Proceeds or Liquidation
Proceeds or any income from an REO Property, will be deposited into the
Custodial Account and applied in the following order of priority: first, to
reimburse the Master Servicer or any Sub-Servicer for any related unreimbursed
Servicing Advances, pursuant to Section 3.11(vi) or 3.22; second, to accrued
and
unpaid interest on the Mortgage Loan or REO Imputed Interest, at the Mortgage
Rate, to the date of the Cash Liquidation or REO Disposition, or to the Due
Date
prior to the Distribution Date on which such amounts are to be distributed
if
not in connection with a Cash Liquidation or REO Disposition; and third, as
a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than a full recovery thereof, that amount will
be
allocated as follows: first, to unpaid Master Servicing Fees or Sub-Servicing
Fees; and second, to interest at the Net Mortgage Rate. The portion of the
recovery so allocated to unpaid Master Servicing Fees or Sub-Servicing Fees
shall be reimbursed to the Master Servicer or any Sub-Servicer pursuant to
Section 3.11(vi). The portions of the recovery so allocated to interest at
the
Net Mortgage Rate and to principal of the Mortgage Loan shall be applied as
follows: first, to reimburse the Master Servicer or any Sub-Servicer for any
related unreimbursed Advances in accordance with Section 3.11(iii) or 3.22,
second, payment to PMI Insurer in accordance with Sections 3.11(ix) and third,
for payment to the Trustee and distribution to the Certificateholders in
accordance with the provisions of Section 4.01, subject to Section 3.22 with
respect to certain recoveries from an REO Disposition constituting Excess
Proceeds. To the extent the Master Servicer receives additional recoveries
following a Cash Liquidation, the amount of the Realized Loss will be restated,
and the additional recoveries will be passed through the Trust Fund as
Liquidation Proceeds.
87
Section
3.16. Trustee
to Cooperate; Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer
of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Master Servicer will immediately notify the Trustee by a
certification (which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment which
are
required to be deposited in the Custodial Account pursuant to Section 3.10
have
been or will be so deposited) of a Servicing Officer and shall request delivery
to it of the Mortgage File in the form of the Request for Release attached
hereto as Exhibit F-2. Upon receipt by the Custodian of such certification
and
request, such Custodian shall promptly release the related Mortgage File to
the
Master Servicer. Subject to the receipt by the Master Servicer of the proceeds
of such payment in full and the payment of all related fees and expenses, the
Master Servicer shall arrange for the release to the Mortgagor of the original
canceled Mortgage Note. In connection with the satisfaction of any MOM Loan,
the
Master Servicer is authorized to cause the removal from the registration on
the
MERS® System of such Mortgage. All other documents in the Mortgage File shall be
retained by the Master Servicer to the extent required by applicable law. The
Master Servicer shall provide for preparation of the appropriate instrument
of
satisfaction covering any Mortgage Loan which pays in full and the Trustee
shall
cooperate in the execution and return of such instrument to provide for its
delivery or recording as may be required. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Custodial Account or the Certificate Account.
From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loan, the Custodian shall, upon request of the Master
Servicer and delivery to the Custodian of a Request for Release in the form
attached hereto as Exhibit F-1, release the related Mortgage File to the Master
Servicer and the Trustee shall execute such documents as the Master Servicer
shall prepare and request as being necessary to the prosecution of any such
proceedings. Such Request for Release shall obligate the Master Servicer to
return each document previously requested from the Mortgage File to the
Custodian when the need therefor by the Master Servicer no longer exists; and
in
any event within 21 days of the Master Servicer’s receipt thereof, unless the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to
the
Mortgage Loan have been deposited in the Custodial Account or the Mortgage
File
or such document has been delivered to an attorney, or to a public trustee
or
other public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged Property
either judicially or non-judicially, and the Master Servicer has delivered
to
the Trustee a certificate of a Servicing Officer certifying as to the name
and
address of the Person to which such Mortgage File or such document was delivered
and the purpose or purposes of such delivery. Upon receipt of a Request for
Release stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation which are
required to be deposited into the Custodial Account have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, a copy of
the
Request for Release shall be released by the Trustee to the Master
Servicer.
88
Upon
written request of a Servicing Officer, the Trustee shall execute and deliver
to
the Master Servicer any court pleadings, requests for trustee’s sale or other
documents prepared by the Master Servicer that are necessary to the foreclosure
or trustee’s sale in respect of a Mortgaged Property or to any legal action
brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or
rights provided by the Mortgage Note or Mortgage or otherwise available at
law
or in equity. Each such request that such pleadings or documents be executed
by
the Trustee shall include a certification signed by a Servicing Officer as
to
the reason such documents or pleadings are required and that the execution
and
delivery thereof by the Trustee will not invalidate or otherwise affect the
lien
of the Mortgage, except for the termination of such a lien upon completion
of
the foreclosure or trustee’s sale.
Section
3.17. Servicing
Compensation.
As
compensation for its activities hereunder, the Master Servicer shall be entitled
to withhold and retain, from deposits to the Custodial Account of amounts
representing payments or recoveries of interest, the Master Servicing Fees
and
Sub-Servicing Fees with respect to each Mortgage Loan (less any portion of
such
amounts retained by any Sub-Servicer). In addition, the Master Servicer shall
be
entitled to recover unpaid Master Servicing Fees and Sub-Servicing Fees out
of
related Late Collections to the extent permitted in Section 3.11.
Each
Sub-Servicing Agreement shall permit the related Sub-Servicer to retain the
Sub-Servicer Fees from collections on the related Mortgage Loans, or shall
provide that the Sub-Servicer be paid directly by the Master Servicer from
collections on the related Mortgage Loans. To the extent the Master Servicer
directly services a Mortgage Loan, the Master Servicer shall be entitled to
retain the Sub-Servicing Fees for that Mortgage Loan.
The
Master Servicer also shall be entitled pursuant to Section 3.11 to receive
from
the Custodial Account as additional servicing compensation interest or other
income earned on deposits therein, subject to Section 3.23, as well as any
assumption fees, late payment charges and reconveyance fees. The Master Servicer
shall not be entitled to retain any Prepayment Charges. The Master Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including payment of the premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.13 and
servicing compensation of the Sub-Servicer to the extent not retained by it),
and shall not be entitled to reimbursement therefor except as specifically
provided in Section 3.11. The Master Servicing Fee may not be transformed in
whole or in part except in connection with the transfer of all of the Master
Servicer’s responsibilities and obligations under this Agreement.
The
Master Servicer also shall be entitled pursuant to Section 3.11 to receive
from
the Custodial Account as additional servicing compensation interest or other
income earned on deposits therein, subject to Section 3.23, as well as any
assumption fees, late payment charges and reconveyance fees. The Master Servicer
shall not be entitled to retain any Prepayment Charges. Any Prepayment Charges
shall be paid to the Holders of the Class P Certificates. The Master Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including payment of the premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.13 and
servicing compensation of the Sub-Servicer to the extent not retained by it),
and shall not be entitled to reimbursement therefor except as specifically
provided in Section 3.11. The Master Servicing Fee may not be transferred in
whole or in part except in connection with the transfer of all of the Master
Servicer’s responsibilities and obligations under this Agreement.
89
The
Master Servicer, or any Special Servicer acting on its behalf, shall be entitled
to receive, as additional servicing compensation, to the extent permitted by
applicable law and the related Mortgage Notes and Mortgages, any late payment
charges or late fees, demand fees, assumption fees, loan modification fees,
extension fees, consent fees, beneficiary statement charges, or similar items,
in each case to the extent received with respect to any Specially Serviced
Mortgage Loan.
Furthermore,
the Master Servicer, or any Special Servicer acting on its behalf, shall be
entitled to receive, as additional servicing compensation, a Workout Fee;
provided, however, that the Master Servicer, or any Special Servicer acting
on
its behalf, shall not enter into any workout arrangement with respect to any
commercial or mixed-use loan which will result in a Workout Fee. If any
Corrected Mortgage Loan again becomes a Specially Serviced Mortgage Loan, any
right to the Workout Fee with respect to such Mortgage Loan earned in connection
with the initial modification, restructuring or workout thereof shall terminate,
and the Master Servicer, or any Special Servicer acting on its behalf, shall
be
entitled to a new Workout Fee for such Mortgage Loan upon resolution or workout
of the subsequent event of default under such Mortgage Loan. If the Master
Servicer, or any Special Servicer acting on its behalf, is terminated for any
reason hereunder it shall retain the right to receive any Workout Fees payable
in respect of any Mortgage Loans which became Corrected Mortgage Loans during
the period that it acted as Master Servicer or Special Servicer, as applicable
(and the successor Master Servicer or Special Servicer, as applicable, shall
not
be entitled to any portion of such Workout Fees), in each case until the Workout
Fees for any such Mortgage Loan ceases to be payable in accordance with this
paragraph.
In
addition to other servicing compensation provided for in this Agreement, and
not
in lieu thereof, the Master Servicer, or any Special Servicer acting on its
behalf, shall be entitled to (i) the disposition fee payable out of certain
Liquidation Proceeds prior to the deposit of the Liquidation Proceeds in the
Custodial Account and (ii) a fee of [___]% of the unpaid balance of any Mortgage
Loan or Mortgage Loan relating to any REO Property repurchased from the Trust
Fund pursuant to Section 2.02.
Section
3.18. Maintenance
of Certain Servicing Policies.
The
Master Servicer shall obtain and maintain at its own expense and shall cause
each Sub-Servicer to obtain and maintain for the duration of this Agreement
a
blanket fidelity bond and an errors and omissions insurance policy covering
the
Master Servicer’s and such Sub-Servicer’s officers, employees and other persons
acting on its behalf in connection with its activities under this Agreement.
The
amount of coverage shall be at least equal to the coverage maintained by the
Master Servicer or Sub-Servicer in order to be acceptable to Xxxxxx Xxx or
Xxxxxxx Mac to service loans for it or otherwise in an amount as is commercially
available at a cost that is generally not regarded as excessive by industry
standards. The Master Servicer shall promptly notify the Trustee in writing
of
any material change in the terms of such bond or policy. The Master Servicer
shall provide annually to the Trustee a certificate of insurance that such
bond
and policy are in effect. If any such bond or policy ceases to be in effect,
the
Master Servicer shall, to the extent possible, give the Trustee ten days’ notice
prior to any such cessation and shall use its reasonable best efforts to obtain
a comparable replacement bond or policy, as the case may be.
90
Section
3.19. Annual
Statement as to Compliance.
Not
later
than February 28 of each calendar year beginning in 2007, the Master Servicer
at
its own expense shall deliver to the Trustee a certificate (an “Annual Statement
of Compliance”) signed by a Servicing Officer stating, as to the signers
thereof, that (i) a review of the activities of the Master Servicer during
the
preceding calendar year and of performance under this Agreement or other
applicable servicing agreement has been made under such officers’ supervision,
(ii) to the best of such officers’ knowledge, based on such review, the Master
Servicer has fulfilled all its obligations under this Agreement or other
applicable servicing agreement for such year, or, if there has been a failure
to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status of cure provisions
thereof including the steps being taken by the Master Servicer to remedy such
failure. Such Annual Statement of Compliance shall contain no restrictions
or
limitations on its use. In the event that the Master Servicer has delegated
any
servicing responsibilities with respect to the Mortgage Loans to a subservicer,
the Master Servicer shall deliver a similar Annual Statement of Compliance
by
that subservicer to the Trustee as described above as and when required with
respect to the Master Servicer.
If
the
Master Servicer cannot deliver the related Annual Statement of Compliance by
February 28th of such year, the Trustee, at its sole option, may permit a cure
period for the Master Servicer to deliver such Annual Statement of Compliance,
but in no event later than March 10th of such year.
Failure
of the Master Servicer to timely comply with this Section 3.19 shall be deemed
an Event of Default, and the Trustee may, in addition to whatever rights the
Trustee may have under this Agreement and at law or equity or to damages,
including injunctive relief and specific performance, upon notice immediately
terminate all the rights and obligations of the Master Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Master Servicer for the same. This paragraph shall supersede
any other provision in this Agreement or any other agreement to the
contrary.
Section
3.20. Assessments
of Compliance and Attestation Reports.
On
and
after January 1, 2006, the Master Servicer shall service and administer the
Mortgage Loans in accordance with all applicable requirements of the Servicing
Criteria. Pursuant to Rules 13a-18 and 15d-18 of the Exchange Act and Item
1123
of Regulation AB, the Master Servicer shall deliver to theTrustee on or before
February 28 of each calendar year beginning in 2007, a report regarding the
Master Servicer’s assessment of compliance (an “Assessment of Compliance”) with
the Servicing Criteria during the preceding calendar year. The Assessment of
Compliance must be reasonably satisfactory to the Trustee, and as set forth
in
Regulation AB, the Assessment of Compliance must contain the
following:
91
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Master Servicer;
(b) A
statement by such officer that such officer used the Servicing Criteria attached
as Exhibit N hereto, and which will also be attached to the Assement of
Compliance, to assess compliance with the Servicing Criteria applicable to
the
Master Servicer;
(c) An
assessment by such officer of the Master Servicer’s compliance with the
applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on
the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the Master Servicer, that are backed by the same
asset type as the Mortgage Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Master Servicer’s Assessment of Compliance for the period
consisting of the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Master Servicer, which statement shall be based on the activities it
performs with respect to asset-backed securities transactions taken as a whole
involving the Master Servicer, that are backed by the same asset type as the
Mortgage Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit N hereto which are indicated as applicable to the Master
Servicer.
On
or
before February 28 of each calendar year beginning in 2007, the Master Servicer
shall furnish to the Trustee a report (an “Attestation Report”) by a registered
public accounting firm that attests to, and reports on, the Assessment of
Compliance made by the Depositor, as required by Rules 13a-18 and 15d-18 of
the
Exchange Act and Item 1122(b) of Regulation AB, which Attestation Report must
be
made in accordance with standards for attestation reports issued or adopted
by
the Public Company Accounting Oversight Board.
The
Master Servicer shall cause any subservicer, and each subcontractor determined
by the Master Servicer to be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB, to deliver to the Trustee and the
Depositor an Assessment of Compliance and Attestation Report as and when
provided above.
Such
Assessment of Compliance, as to any subservicer, shall at a minimum address
each
of the Servicing Criteria specified on Exhibit N hereto which are indicated
as
applicable to any “primary servicer.” Notwithstanding the foregoing, as to any
subcontractor, an Assessment of Compliance is not required to be delivered
unless it is required as part of a Form 10-K with respect to the Trust
Fund.
92
If
the
Master Servicer cannot deliver any Assessment of Compliance or Attestation
Report by February 28th of such year, the Trustee, at its sole option, may
permit a cure period for the Master Servicer to deliver such Assessment of
Compliance or Attestation Report, but in no event later than March 10th of
such
year.
Failure
of the Master Servicer to timely comply with this Section 3.20 shall be deemed
an Event of Default, and the Trustee may, in addition to whatever rights the
Trustee may have under this Agreement and at law or equity or to damages,
including injunctive relief and specific performance, upon notice immediately
terminate all the rights and obligations of the Master Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Master Servicer for the same. This paragraph shall supercede
any other provision in this Agreement or any other agreement to the
contrary.
The
Trustee shall also provide an Assessment of Compliance and Attestation Report,
as and when provided above, which shall at a minimum address each of the
Servicing Criteria specified on Exhibit N hereto which are indicated as
applicable to the “trustee.” In addition, the Trustee shall cause the Custodian
to deliver to the Trustee and the Depositor an Assessment of Compliance and
Attestation Report, as and when provided above, which shall at a minimum address
each of the Servicing Criteria specified on Exhibit N hereto which are indicated
as applicable to a “custodian.” Notwithstanding the foregoing, as to any
Custodian, an Assessment of Compliance is not required to be delivered unless
it
is required as part of a Form 10-K with respect to the Trust Fund.
Section
3.21. Access
to Certain Documentation.
The
Master Servicer shall provide, and shall cause any Sub-Servicer to provide,
to
the Trustee and the Certificate Insurer, access to the documentation in their
possession regarding the related Mortgage Loans and REO Properties and to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC (to which the Trustee shall also provide) access to the documentation
regarding the related Mortgage Loans required by applicable regulations, such
access being afforded without charge but only upon reasonable request and during
normal business hours at the offices of the Master Servicer or the Sub-Servicers
that are designated by these entities; provided,
however,
that,
unless otherwise required by law, the Trustee, the Master Servicer or the
Sub-Servicer shall not be required to provide access to such documentation
if
the provision thereof would violate the legal right to privacy of any Mortgagor;
provided,
further,
however,
that
the Trustee shall coordinate its requests for such access so as not to impose
an
unreasonable burden on, or cause an unreasonable interruption of, the business
of the Master Servicer or any Sub-Servicer. The Master Servicer, the
Sub-Servicers and the Trustee shall allow representatives of the above entities
to photocopy any of the documentation and shall provide equipment for that
purpose at a charge that covers their own actual out-of-pocket
costs.
93
Section
3.22. Title,
Conservation and Disposition of REO Property.
This
Section shall apply only to REO Properties acquired for the account of REMIC
1
and shall not apply to any REO Property relating to a Mortgage Loan which was
purchased or repurchased from REMIC 1 pursuant to Sections 2.02, 2.04 or 3.14.
In the event that title to any such REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee, or to its nominee, on behalf
of the Certificateholders. The Master Servicer, on behalf of REMIC 1, shall
either sell any REO Property before the close of the third taxable year
following the taxable year in which REMIC 1 acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code or, at the expense
of
REMIC 1, request, more than 60 days before the day on which the three-year
grace
period would otherwise expire an extension of the three-year grace period,
unless the Master Servicer has delivered to the Trustee and the Certificate
Insurer an Opinion of Counsel (which shall not be at the expense of the Trustee
or the Certificate Insurer), addressed to the Trustee, the Certificate Insurer
and the Master Servicer, to the effect that the holding by REMIC 1 of such
REO
Property subsequent to the close of the third taxable year following the taxable
year in which REMIC 1 acquires ownership of such REO Property will not result
in
the imposition on REMIC 1 of taxes on “prohibited transactions” thereof, as
defined in Section 860F of the Code, or cause any of REMIC 1, REMIC 2 or REMIC
3
to fail to qualify as a REMIC under the REMIC Provisions or comparable
provisions of the laws of the State of California at any time that any
Certificates are outstanding. The Master Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for
the
purpose of its prompt disposition and sale in a manner which does not cause
such
REO Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) or result in the receipt by any of REMIC 1, REMIC 2 or REMIC
3 of any “income from non-permitted assets” within the meaning of Section
860F(a)(2)(B) of the Code or any “net income from foreclosure property” which is
subject to taxation under the REMIC Provisions. Pursuant to its efforts to
sell
such REO Property, the Master Servicer shall either itself or through an agent
selected by the Master Servicer protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of
the
interests of the Certificateholders, rent the same, or any part thereof, as
the
Master Servicer deems to be in the best interest of the Certificateholders
for
the period prior to the sale of such REO Property.
Any
REO
Disposition shall be for cash only (unless changes in the REMIC Provisions
made
subsequent to the Startup Day allow a sale for other
consideration).
The
Master Servicer shall segregate and hold all funds collected and received in
connection with the operation of any REO Property separate and apart from its
own funds and general assets. The Master Servicer shall deposit, or cause to
be
deposited, on a daily basis in the Custodial Account all revenues received
with
respect to the REO Properties, net of any directly related expenses incurred
or
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property.
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If
as of
the date of acquisition of title to any REO Property there remain outstanding
unreimbursed Servicing Advances with respect to such REO Property or any
outstanding Advances allocated thereto the Master Servicer, upon an REO
Disposition, shall be entitled to reimbursement for any related unreimbursed
Servicing Advances and any unreimbursed related Advances as well as any unpaid
Master Servicing Fees or Sub-Servicing Fees from proceeds received in connection
with the REO Disposition, as further provided in Section 3.15. The Master
Servicer shall not be obligated to advance any amounts with respect to an REO
Property if, in its good faith judgment, the Master Servicer determines that
such advance would constitute a Nonrecoverable Advance.
The
REO
Disposition shall be carried out by the Master Servicer at such price and upon
such terms and conditions as the Master Servicer shall determine.
The
Master Servicer shall deposit the proceeds from the REO Disposition, net of
any
payment to the Master Servicer as provided above, in the Custodial Account
upon
receipt thereof for distribution in accordance with Section 4.01; provided,
that
any such net proceeds received by the Master Servicer which are in excess of
the
applicable Stated Principal Balance plus all unpaid REO Imputed Interest thereon
through the last day of the month in which the REO Disposition occurred (“Excess
Proceeds”) shall be retained by the Master Servicer as additional servicing
compensation.
With
respect to any Mortgage Loan as to which the Master Servicer has received notice
of, or has actual knowledge of, the presence of any toxic or hazardous substance
on the Mortgaged Property, the Master Servicer shall not, on behalf of the
Trustee, either (i) obtain title to the related Mortgaged Property as a result
of or in lieu of foreclosure or otherwise, or (ii) otherwise acquire possession
of, the related Mortgaged Property, unless the Master Servicer has, at least
30
days prior to taking such action, obtained and delivered to the Trustee an
environmental audit report prepared by a Person who regularly conducts
environmental audits using customary industry standards. The Master Servicer
shall take such action as it deems to be in the best economic interest of the
Trust Fund (other than proceeding against the Mortgaged Property) and is hereby
authorized at such time as it deems appropriate to release such Mortgaged
Property from the lien of the related Mortgage.
The
cost
of the environmental audit report contemplated by this Section 3.22 shall be
advanced by the Master Servicer as an expense of the Trust Fund, and the Master
Servicer shall be reimbursed therefor from the Custodial Account as provided
in
Section 3.11, any such right of reimbursement being prior to the rights of
the
Certificateholders to receive any amount in the Custodial Account.
If
the
Master Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property in compliance with applicable environmental laws, or
to
take such action with respect to the containment, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Master Servicer shall
take such action as it deems to be in the best economic interest of the Trust
Fund. The cost of any such compliance, containment, clean-up or remediation
shall be advanced by the Master Servicer as an expense of the Trust Fund, and
the Master Servicer shall be entitled to be reimbursed therefor from the
Custodial Account as provided in Section 3.11, any such right of reimbursement
being prior to the rights of the Certificateholders to receive any amount in
the
Custodial Account.
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Section
3.23. Additional
Obligations of the Master Servicer.
On
each
Certificate Account Deposit Date, the Master Servicer shall deliver to the
Trustee for deposit in the Certificate Account from its own funds and without
any right of reimbursement therefor, a total amount equal to the amount of
Compensating Interest for the related Distribution Date.
Section
3.24. Additional
Obligations of the Depositor.
The
Depositor agrees that on or prior to the tenth day after the Closing Date,
the
Depositor shall provide the Trustee with a written notification, substantially
in the form of Exhibit J attached hereto, relating to each Class of
Certificates, setting forth (i) in the case of each Class of such Certificates,
(a) if less than 10% of the aggregate Certificate Principal Balance of such
Class of Certificates has been sold as of such date, the value calculated
pursuant to clause (b)(iii) of Exhibit J hereto, or, (b) if 10% or more of
such
Class of Certificates has been sold as of such date but no single price is
paid
for at least 10% of the aggregate Certificate Principal Balance of such Class
of
Certificates, then the weighted average price at which the Certificates of
such
Class were sold and the aggregate percentage of Certificates of such Class
sold,
(c) the first single price at which at least 10% of the aggregate Certificate
Principal Balance of such Class of Certificates was sold, or (d) if any
Certificates of each Class of Certificates are retained by the Depositor or
an
affiliate corporation, or are delivered to the Sponsor, the fair market value
of
such Certificates as of the Closing Date, (ii) the Prepayment Assumption used
in
pricing the Certificates, and (iii) such other information as to matters of
fact
as the Trustee may reasonably request to enable it to comply with its reporting
requirements with respect to each Class of such Certificates to the extent
such
information can in the good faith judgment of the Depositor be determined by
it.
Section
3.25. Exchange
Act Reporting.
(a) (i)
Within 15 days after each Distribution Date, the Trustee shall, in accordance
with industry standards, file with the Commission via the Electronic Data
Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form 10-D,
signed by the Master Servicer, with a copy of the monthly statement to be
furnished by the Trustee to the Certificateholders for such Distribution Date
and detailing all data elements specified in Item 1121(a) of Regulation AB
as
part of the monthly statement; provided that the Trustee shall have received
no
later than 2 days prior to the date such Distribution Report on Form 10-D is
required to be filed, all information required to be provided to the Trustee
as
described in clause (a)(iv) below.
(ii) The
Trustee will prepare and file Current Reports on Form 8-K in respect of the
Trust, signed by the Master Servicer, as and when required; provided, that,
the
Trustee shall have received no later than one Business Day prior to the filing
deadline for such Current Report, all information, data, and exhibits required
to be provided or filed with such Current Report and required to be provided
to
the Trustee as described in clause (a)(iv) below.
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(iii) Prior
to
January 30 in each year commencing in 2007, the Trustee shall, in accordance
with industry standards, file a Form 15 Suspension Notice with respect to the
Trust Fund, if applicable. Prior to (x) March 15, 2007 and (y) unless and until
a Form 15 Suspension Notice shall have been filed, prior to March 15 of each
year thereafter, the Master Servicer shall provide the Trustee with an Annual
Compliance Statement, together with a copy of the Assessment of Compliance
and
Attestation Report to be delivered by the Master Servicer pursuant to Sections
3.19 and 3.20 (including with respect to any subservicer or subcontractor,
if
required to be filed). Prior to (x) March 31, 2007 and (y) unless and until
a
Form 15 Suspension Notice shall have been filed, March 31 of each year
thereafter, the Trustee shall, subject to subsection (d) below, file a Form
10-K, in substance conforming to industry standards, with respect to the Trust
Fund. Such Form 10-K shall include the Assessment of Compliance, Attestation
Report, Annual Compliance Statements and other documentation provided by the
Master Servicer pursuant to Sections 3.19 and 3.20 (including with respect
to
any subservicer or subcontractor, if required to be filed) and with respect
to
the Trustee and the Custodian, and the Form 10-K certification signed by the
Depositor; provided that the Trustee shall have received no later than March
15
of each calendar year prior to the filing deadline for the Form 10-K all
information, data and exhibits required to be provided or filed with such Form
10-K and required to be provided to the Trustee as described in clause (a)(iv)
below.
(iv) As
to
each item of information required to be included in any Form 10-D, Form 8-K
or
Form 10-K, the Trustee's obligation to include the information in the applicable
report is subject to receipt from the entity that is indicated in Exhibit O
as
the responsible party for providing that information, if other than the Trustee,
as and when required as described above. Each of the Master Servicer, Sponsor
and Depositor hereby agree to notify and provide to the Trustee all information
that is required to be included in any Form 10-D, Form 8-K or Form 10-K, with
respect to which that entity is indicated in Exhibit O as the responsible party
for providing that information. The Swap Provider will be obligated pursuant
to
the Swap Agreement to provide to the Trustee any information that may be
required to be included in any Form 10-D, Form 8-K or Form 10-K. The Trustee
shall be responsible for determining the significance percentage (as defined
in
Item 1115 of Regulation AB) of the Swap Provider at any time. The Master
Servicer shall be responsible for determining the pool concentration applicable
to any subservicer or originator at any time, for purposes of disclosure as
required by Items 1117 and 1119 of Regulation AB.
The
Trustee and the Master Servicer shall reasonably cooperate with the Depositor
in
connection with the Trust’s satisfying the reporting requirements under the
Exchange Act. The Trustee shall prepare on behalf of the Trust any Forms 10-D,
8-K and 10-K customary for similar securities as required by the Exchange Act
and the Rules and Regulations of the Commission thereunder, and the Master
Servicer shall sign (or shall cause another entity acceptable to the Commission
to sign) and the Trustee shall file (via the Commission’s Electronic Data
Gathering and Retrieval System) such forms on behalf of the Depositor (or such
other entity). The Depositor hereby grants to the Trustee a limited power of
attorney to sign each Form 10-D, Form 8-K and Form 10-K on behalf of the
Depositor. Such power of attorney shall continue until 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. Notwithstanding
anything herein to the contrary, the Master Servicer, and not the Trustee,
shall
be responsible for executing each Form 10-K filed on behalf of the
Trust.
(b) In
connection with the filing of any 10-K hereunder, the Trustee shall sign a
certification (a “Form of Back-Up Certification for Form 10-K Certificate,”
substantially in the form attached hereto as Exhibit L-4) for the benefit of
the
Master Servicer and its officers, directors and Affiliates regarding certain
aspects of the Form 10-K certification signed by the Master Servicer, provided,
however, that the Trustee shall not undertake an analysis of any accountant’s
report attached as an exhibit to the Form 10-K).
97
(c) Each
Form
8-K shall be filed by the Trustee within 15 days after each Distribution Date,
with a copy of the statement to the Certificateholders for such Distribution
Date as an exhibit thereto. Prior to March 30th of each year (or such earlier
date as may be required or permitted by the Exchange Act and the Rules and
Regulations of the Commission), the Trustee shall file a Form 10-K, in substance
as required by applicable law or applicable Commission staffs interpretations.
The Trustee shall prepare the Form 10-K and provide the Master Servicer with
the
Form 10-K no later than March 20th of each year. The Master Servicer shall
execute such Form 10-K upon its receipt and shall provide the original of such
executed Form 10-K to the Trustee no later than March 25th of each year. Such
Form 10-K shall include as exhibits the Master Servicer’s annual statement of
compliance described under Section 3.19 and the accountant’s report described
under Section 3.20(a), in each case to the extent they have been timely
delivered to the Trustee. If they are not so timely delivered, the Trustee
shall
file an amended Form 10-K including such documents as exhibits reasonably
promptly after they are delivered to the Trustee. The Trustee shall have no
liability with respect to any failure to properly prepare or file such periodic
reports resulting from or relating to the Trustee’s inability or failure to
obtain any information not resulting from its own negligence or willful
misconduct. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit L-1 (the “Certification”), in compliance with Rules
13a-14 and 15d-14 under the Exchange Act and any additional directives of the
Commission, which shall be signed by the senior officer of the Master Servicer
in charge of securitization.
(d) In
addition, the Trustee shall sign a certification (in the form attached hereto
as
Exhibit L-2) for the benefit of the Master Servicer and its officers, directors
and Affiliates regarding certain aspects of items 1 through 3 of the
Certification (provided, however, that the Trustee shall not undertake an
analysis of any accountant’s report attached as an exhibit to the Form
10-K).
(e) In
addition, (i) the Trustee shall indemnify and hold harmless the Master Servicer
and the Company and their 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 Trustee’s obligations under this Section 3.25
caused by the Trustee’s negligence, bad faith or willful misconduct in
connection therewith, and (ii) the Master Servicer shall indemnify and hold
harmless the Trustee, the Master Servicer, the Company 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 3.25 or the
Master Servicer’s negligence, bad faith or willful misconduct in connection
therewith. If (i) the indemnification provided for herein is unavailable or
insufficient to hold harmless the Master Servicer, then the Trustee agrees
that
it shall contribute to the amount paid or payable by the Master Servicer as
a
result of the losses, claims, damages or liabilities of the Master Servicer
in
such proportion as is appropriate to reflect the relative fault of the Master
Servicer on the one hand and the Trustee on the other in connection with a
breach of the Trustee’s obligations under this Section 3.25 caused by the
Trustee’s negligence, bad faith or willful misconduct in connection therewith
and (ii) the indemnification provided for herein is unavailable or insufficient
to hold harmless the Trustee, then the Master Servicer agrees that it shall
contribute to the amount paid or payable by the Trustee as a result of the
losses, claims, damages or liabilities of the Trustee in such proportion as
is
appropriate to reflect the relative fault of the Trustee on the one hand and
the
Master Servicer on the other in connection with a breach of the Master
Servicer’s obligations under this Section 3.25 or the Master Servicer’s
negligence, bad faith or willful misconduct in connection
therewith.
98
(f) In
the
event the Commission permits separate or split certifications to be made with
respect to the items currently contained in the Certification, the Trustee
shall
provide a certification with respect to items 1 and 2 and the Master Servicer
shall provide a certification with respect to items 3, 4 and 5 contained within
the Certification, in each case substantially in the form of the Certification
attached as Exhibit L-1, or other form as indicated by the Commission for this
purpose. In addition, the Trustee shall sign a certification (in the form
attached hereto as Exhibit L-3) for the benefit of the Master Servicer and
its
officers, directors and Affiliates regarding certain aspects of item 3 of the
Certification (provided, however, that the Trustee shall not undertake an
analysis of any accountant’s report attached as an exhibit to the Form
10-K).
(g) Notwithstanding
any other provision of the Agreement, the provisions of this Section 3.25 may
be
amended by the Master Servicer, the Company and the Trustee without the consent
of the Certificateholders.
(h) Prior
to
January 30th of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall file with the Commission a Form 15D Suspension
Notification with respect to the Trust.
Section
3.26. Intention
of the Parties and Interpretation
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.19, 3.20
and
3.25 of this Agreement is to facilitate compliance by the Sponsor and the
Depositor with the provisions of Regulation AB promulgated by the SEC under
the
1934 Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from time to
time and subject to clarification and interpretive advice as may be issued
by
the staff of the SEC from time to time. Therefore, each of the parties agrees
that (a) the obligations of the parties hereunder shall be interpreted in such
a
manner as to accomplish that purpose, (b) the parties’ obligations hereunder
will be supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance provided by the SEC in respect
of
the requirements of Regulation AB, (c) the parties shall comply with requests
made by the Sponsor
or
the
Depositor for delivery of additional or different information as the Sponsor
or
the Depositor may determine in good faith is necessary to comply with the
provisions of Regulation AB, and (d) no amendment of this Agreement shall be
required to effect any such changes in the parties’ obligations as are necessary
to accommodate evolving interpretations of the provisions of Regulation
AB.
Section
3.27. Realization
Upon Commercial or Mixed-Use Loans.
(a)
With
respect to any Specially Serviced Mortgage Loan, the Master Servicer, or any
Special Servicer on its behalf, shall determine, in accordance with the
servicing standards herein, whether to grant a modification, waiver or amendment
of the terms of such Specially Serviced Mortgage Loan (subject to the
limitations contained in Section 3.14), commence foreclosure proceedings or
attempt to sell such Specially Serviced Mortgage Loan with reference to which
course of action is reasonably likely to produce a greater recovery on a net
present value basis with respect to such Specially Serviced Mortgage
Loan.
99
(b) In
connection with any foreclosure or other acquisition, the Master Servicer shall
pay the costs and expenses in any such proceedings as a Servicing Advance.
If
the Master Servicer, or any Special Servicer on its behalf, elects to proceed
with a non-judicial foreclosure in accordance with the laws of the state where
the related Mortgaged Property is located, the Master Servicer, or any Special
Servicer on its behalf, shall not be required to pursue a deficiency judgment
against the related Mortgagor or any other liable party if the laws of such
state do not permit such a deficiency judgment after a non-judicial foreclosure
or if the Master Servicer, or any Special Servicer on its behalf, determines,
in
its reasonable judgment, that, if a deficiency judgment is obtained, the likely
recovery will not be sufficient to warrant the cost, time, expense and/or
exposure of pursuing such a deficiency judgment.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be issued to
the
Trustee, or to its nominee (which shall not include the Master Servicer or
any
Special Servicer) or a separate trustee or co-trustee on behalf of the Trustee,
as Trustee for the Certificateholders. Notwithstanding any such acquisition
of
title and cancellation of the related commercial or mixed-use loan, such
commercial or mixed-use loan shall (except for purposes of Section 9.01 of this
Pooling and Servicing Agreement) be considered to be a Mortgage Loan held in
the
Trust Fund until such time as the related REO Property shall be sold by the
Trust Fund and the Stated Principal Balance of each commercial or mixed-use
loan
relating to an REO Property shall be reduced by any REO Proceeds allocated
to
principal. Consistent with the foregoing, for purposes of all calculations
hereunder, so long as such commercial or mixed-use loan shall be considered
to
be an Outstanding Mortgage Loan:
(i) it
shall
be assumed that, notwithstanding that the indebtedness evidenced by the related
Mortgage Note shall have been discharged, such Mortgage Note and, for purposes
of determining the Stated Principal Balance thereof, the related amortization
schedule in effect at the time of any such acquisition of title, remain in
effect; and
(ii) REO
Proceeds received in any month shall be deemed to be treated first, as a
recovery of any related and unreimbursed Servicing Advances and, if applicable,
unpaid Liquidation Expenses; second, as a recovery of accrued and unpaid
interest on the related commercial or mixed-use loan related to the REO Property
to, but not including, the Due Date in the Due Period of receipt; third, as
a
recovery of principal of the related commercial or mixed-use loan related to
the
REO Property to the extent of its entire unpaid principal balance; and fourth,
as a recovery of any other amounts deemed to be due and owing in respect of
the
related commercial or mixed-use loan related to the REO Property.
(c) Notwithstanding
any provision to the contrary contained in this Agreement, the Master Servicer,
or any Special Servicer acting on its behalf, shall not, on behalf of the Trust
Fund, obtain title to a Mortgaged Property as a result of or in lieu of
foreclosure or otherwise obtain title to any direct or indirect partnership
interest or other equity interest in any Mortgagor pledged pursuant to a pledge
agreement and thereby be the beneficial owner of a Mortgaged Property, and
shall
not otherwise acquire possession of, or take any other action with respect
to,
any Mortgaged Property if, as a result of any such action, the Trustee, for
the
Trust Fund or the Certificateholders, would be considered to hold title to,
to
be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Master Servicer, or any Special Servicer
acting on its behalf, has previously determined in accordance with the servicing
standards herein, based on an updated Phase I Environmental Assessment report
prepared (not more than 12 months prior to the taking of such action) by a
Qualified Environmental Consultant, that:
100
(A) the
Mortgaged Property is in compliance with applicable environmental laws and
regulations or, if not, that taking such actions as are necessary to bring
the
Mortgaged Property into compliance therewith is reasonably likely to produce
a
greater recovery on a present value basis than not taking such actions,
and
(B) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation could be required
under any applicable federal, state or local law or regulation, or that, if
any
such Hazardous Materials are present for which such action could be required,
after consultation with a Qualified Environmental Consultant, taking such
actions with respect to the Mortgaged Property is reasonably likely to produce
a
greater recovery on a present value basis than not taking such
actions.
In
the
event that the Phase I Environmental Assessment first obtained or updated by
the
Master Servicer, or any Special Servicer acting on its behalf, with respect
to a
Mortgaged Property indicates that such Mortgaged Property may not be in
compliance with applicable environmental laws or that Hazardous Materials may
be
present but does not definitively establish such fact, the Master Servicer,
or
any Special Servicer acting on its behalf, shall cause such further
environmental tests as the Master Servicer, or any Special Servicer acting
on
its behalf, shall deem prudent to protect the interests of Certificateholders
to
be conducted by a Qualified Environmental Consultant. Any such tests shall
be
deemed part of the Phase I Environmental Assessment obtained by the Master
Servicer, or any Special Servicer acting on its behalf, for purposes of this
Section 3.27. The Master Servicer shall pay for the cost of preparation of
such
Phase I Environmental Assessments as well as the cost of any remedial,
corrective or other further action contemplated by clauses (A) and/or (B) of
this Section 3.27(c) as a Servicing Advance, unless such Advance would be a
Nonrecoverable Advance.
(d) The
Master Servicer, or any Special Servicer on its behalf, shall report to the
IRS
and to the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which
is
abandoned or foreclosed. The Master Servicer, or any Special Servicer acting
on
its behalf, shall deliver a copy of any such report to the Trustee.
Section
3.28. Title
and Management of REO Properties Related to Commercial or Mixed-Use
Loans.
(a) In
the
event that title to any Mortgaged Property related to a commercial or mixed-use
loan is acquired for the benefit of Certificateholders in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Trustee, or its nominee (which shall not include the Master Servicer
or any Special Servicer), or a separate trustee or co-trustee, on behalf of
the
Trust Fund and the Certificateholders. The Master Servicer, or any Special
Servicer on its behalf, shall maintain accurate records with respect to each
related REO Property reflecting the status of taxes, assessments and other
similar items that are or may become a lien on such REO Property and the status
of insurance premiums payable with respect thereto.
101
(b) The
Master Servicer, or any Special Servicer on its behalf, shall have full power
and authority, subject only to the specific requirements and prohibitions of
this Agreement, to do any and all things in connection with any REO Property
as
are consistent with the servicing standards herein, all on such terms and for
such period as the Master Servicer, or any Special Servicer on its behalf,
deems
to be in the best interests of Certificateholders, and, in connection therewith,
the Master Servicer, or any Special Servicer on its behalf, shall agree to
the
payment of management fees that are consistent with general market standards.
The Master Servicer, or any Special Servicer on its behalf, shall segregate
and
hold all revenues received by it with respect to any REO Property separate
and
apart from its own funds and general assets and shall establish and maintain
with respect to any REO Property a segregated custodial account (each, an “REO
Account”), each of which shall be an Eligible Account and shall be entitled
“___________________, as trustee, in trust for the registered holders of Impac
Secured Assets Corp., the Mortgage-Backed Certificates, Series 200_-_, REO
Account.” The Master Servicer, or any Special Servicer on its behalf, shall be
entitled to any interest or investment income earned on funds deposited in
an
REO Account to the extent provided in Section 3.10(a). The Master Servicer,
or
any Special Servicer on its behalf, shall deposit or cause to be deposited
in
the related REO Account within two Business Days after receipt all REO Proceeds
received by it with respect to any REO Property, and shall withdraw therefrom
funds necessary for the proper operation, management and maintenance of such
REO
Property, including:
(i) all
insurance premiums and ground rents, if any, due and payable in respect of
such
REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property and such other
Mortgaged Properties that may result in the imposition of a lien thereon;
and
(iii) all
costs
and expenses necessary to protect, maintain, manage, operate, repair and restore
such REO Property.
To
the
extent that such REO Proceeds are insufficient for the purposes set forth in
clauses (i) through (iii) above, the Master Servicer shall make a Servicing
Advance equal to the amount of such shortfall unless the Master Servicer
determines, in its good faith judgment, that such Servicing Advance would be
a
Nonrecoverable Advance. The Master Servicer shall be entitled to reimbursement
of such Servicing Advances (with interest) made pursuant to the preceding
sentence, to the extent permitted pursuant to Section 3.11. The Master Servicer,
or any Special Servicer on its behalf shall remit to the Master Servicer, from
each REO Account for deposit in the Custodial Account on a monthly basis prior
to the third Business Day prior to the related Payment Date the REO Proceeds
received or collected from the related REO Property, except that in determining
the amount of such REO Proceeds, the Master Servicer, or any Special Servicer
on
its behalf, may retain in such REO Account reasonable reserves for repairs,
replacements and necessary capital improvements and other related
expenses.
102
Section
3.29. Sale of
Specially Serviced Mortgage Loans and Related REO Properties.
(a)
The
Master Servicer shall appoint itself as Special Servicer or shall enter into
(or
have in place) a Subservicing Agreement with a Special Servicer (other than
the
Master Servicer) to service each Specially Serviced Mortgage Loan. With respect
to any Specially Serviced Mortgage Loan or related REO Property which the Master
Servicer, or any Special Servicer on its behalf, has determined to sell in
accordance with Section 3.27 or otherwise, the Master Servicer, or any Special
Servicer on its behalf, shall deliver to the Trustee an Officers’ Certificate to
the effect that the Master Servicer, or any Special Servicer on its behalf,
has
determined to sell such Specially Serviced Mortgage Loan or REO Property in
accordance with this Section 3.29. The Master Servicer, or any Special Servicer
on its behalf, will give the Trustee not less than 10 Business Days’ prior
written notice of its intention to sell any Specially Serviced Mortgage Loan
or
REO Property. The Repurchase Price for any Specially Serviced Mortgage Loan
or
REO Property purchased under this Section 3.29(a) shall be deposited into the
Custodial Account, and the Trustee, upon receipt of an Officers’ Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released the related Mortgage File, and shall execute
and
deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty as shall be provided to it and are
reasonably necessary to vest in the ownership of such commercial or mixed-use
loan or REO Property. In connection with any such purchase, the Master Servicer,
or any Special Servicer acting on its behalf, shall deliver the related
servicing file to the Person effecting such purchase.
(b) If
any
Specially Serviced Mortgage Loan or REO Property is not purchased as described
in the first sentence of Section 3.28(a) within 10 Business Days of the Trustee
having received notice in respect thereof pursuant to Section 3.29(a) above,
then either the Special Servicer or the Master Servicer, in that order, may,
at
its option, within 10 Business Days after the expiration of such 10 Business
Day
period, purchase (or designate an Affiliate thereof to purchase) such Mortgage
Loan or REO Property out of the Trust Fund at a cash price equal to the
Repurchase Price. The Repurchase Price for any such Mortgage Loan or REO
Property purchased under this Section 3.29(b) shall be deposited into the
Custodial Account, and the Trustee, upon receipt of an Officers’ Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Master Servicer or the Special Servicer
(or the designated Affiliate thereof), as applicable, the related Mortgage
File,
and shall execute and deliver such instruments of transfer or assignments,
in
each case without recourse, representation or warranty as shall be provided
to
it and are reasonably necessary to vest in the Master Servicer or the Special
Servicer (or the designated Affiliate thereof),as applicable, the ownership
of
such Mortgage Loan or REO Property. In connection with any such purchase by
the
Master Servicer, the Special Servicer, if any, shall deliver the related
servicing file to the Master Servicer.
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(c) The
Master Servicer, or any Special Servicer acting on its behalf, may offer to
sell
to any Person (including the Depositor, the Master Servicer and any Special
Servicer) any Specially Serviced Mortgage Loan or REO Property not otherwise
purchased pursuant to Section 3.29(a) or 3.29(b) if and when the Master
Servicer, or any Special Servicer acting on its behalf, determines, consistent
with the servicing standards herein, that such a sale would be in the best
economic interests of the Certificateholders (as a collective whole). The Master
Servicer, or any Special Servicer acting on its behalf, shall give the Trustee
not less than 10 Business Days prior written notice of its intention to sell
such Specially Serviced Mortgage Loan or REO Property, in which case the Master
Servicer, or any Special Servicer acting on its behalf, shall accept any offer
received from any Person that is determined by the Master Servicer, or any
Special Servicer acting on its behalf, to be a fair cash price, as determined
in
accordance with Section 3.29(b), for such Specially Serviced Mortgage Loan
or
REO Property if the offeror is a Person other than the Master Servicer, or
any
Special Servicer acting on its behalf, or an Affiliate thereof, or is determined
to be such a price by an independent appraiser if the offeror is the Master
Servicer, or any Special Servicer acting on its behalf, or an Affiliate thereof;
provided, however, that any offer by an Interested Person in the amount of
the
Repurchase Price shall be deemed to be a fair cash price. Notwithstanding
anything to the contrary herein, neither the Trustee in its individual capacity
nor any of its Affiliates, may make an offer to purchase or purchase any
Specially Serviced Mortgage Loan or any REO Property pursuant hereto. In
addition, in the event that the Master Servicer, or any Special Servicer acting
on its behalf, receives more than one fair offer with respect to any Specially
Serviced Mortgage Loan or REO Property, the Master Servicer, or any Special
Servicer acting on its behalf, may accept an offer that is not the highest
fair
cash offer if it determines, in accordance with the servicing standards herein,
that acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower
cash
offer is more likely to perform its obligations, or the terms offered by the
prospective buyer making the lower cash offer are more favorable). The Master
Servicer, or any Special Servicer acting on its behalf, shall use its best
efforts in accordance with the servicing standards herein, to sell any REO
Property no later than the day prior to the Determination Date immediately
prior
to the Final Scheduled Payment Date.
(d) In
determining whether any offer received represents a fair price for any Specially
Serviced Mortgage Loan or any REO Property, the Master Servicer, or any Special
Servicer acting on its behalf, shall be entitled to engage and may conclusively
rely on the opinion of an Independent appraiser or other expert in real estate
matters retained by the Master Servicer, or any Special Servicer acting on
its
behalf, the cost of which shall be advanced as a Servicing Advance, unless
such
Servicing Advance would be a Nonrecoverable Advance. In determining whether
any
offer constitutes a fair price for any Specially Serviced Mortgage Loan or
any
REO Property, the Master Servicer, or any Special Servicer acting on its behalf
(or, if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into account,
any appraisal obtained and, as applicable, among other factors, the period
and
amount of any delinquency on such Specially Serviced Mortgage Loan, the physical
(including environmental) condition of the related Mortgaged Property or such
REO Property, the state of the local economy and the Trust Fund’s obligation to
dispose of any REO Property within the time period specified in Section
3.28(a).
(e) Subject
to the provisions of Section 3.28, the Master Servicer, or any Special Servicer
acting on its behalf, shall act on behalf of the Trust Fund in negotiating
and
taking any other action necessary or appropriate in connection with the sale
of
any Specially Serviced Mortgage Loan or REO Property, including the collection
of all amounts payable in connection therewith. Any sale of a Specially Serviced
Mortgage Loan or any REO Property shall be without recourse to, or
representation or warranty by, the Trustee, the Depositor, the Master Servicer,
any Special Servicer or the Trust Fund (except that any contract of sale and
assignment and conveyance documents may contain customary warranties of title
and condition, so long as the only recourse for breach thereof is to the Trust
Fund), and, if such sale is consummated in accordance with the duties of the
Master Servicer, any Special Servicer, the Depositor and the Trustee pursuant
to
the terms of the servicing agreement, no such Person who so performed shall
have
any liability to the Trust Fund or any Certificateholder with respect to the
purchase price therefor accepted by the Master Servicer, or any Special Servicer
acting on its behalf.
104
(f) Liquidation
Proceeds related to any such sale shall be promptly, and in any event within
one
Business Day following receipt thereof, deposited in the Custodial Account
in
accordance with Section 3.10(a).
Section
3.30. Transfer
of Servicing Between Master Servicer and Special Servicer; Record
Keeping.
(a) Upon
determining that any commercial or mixed-use loan has become a Specially
Serviced Mortgage Loan, the Master Servicer shall immediately give notice
thereof, together with a copy of the related Mortgage File, to a Special
Servicer and shall use its best efforts to provide such Special Servicer with
all information, documents but excluding the original documents constituting
such Mortgage File) and records (including records stored electronically on
computer tapes, magnetic discs and the like) relating to such commercial or
mixed-use loan and reasonably requested by the Special Servicer to enable it
to
assume its duties hereunder with respect thereto without acting through a
Subservicer. The Master Servicer shall use its best efforts to comply with
the
preceding sentence within five Business Days of the date such commercial or
mixed-use loan became a Specially Serviced Mortgage Loan and in any event shall
continue to act as Master Servicer and administrator of such commercial or
mixed-use loan (i) if the Master Servicer does not exercise such discretion
or
(ii) until the Special Servicer has commenced the servicing of such commercial
or mixed-use loan, which shall occur upon the receipt by the Special Servicer
of
the information, documents and records referred to in the preceding sentence.
No
later than 10 Business Days before the Master Servicer is required to deliver
a
copy of the Mortgage File to the Special Servicer, it shall review the Mortgage
File and request from the Trustee any material documents that it is aware are
missing from the Mortgage File to the extent that the Trustee has such
documents. With respect to each commercial or mixed-use loan that becomes a
Specially Serviced Mortgage Loan, the Master Servicer shall instruct the related
Mortgagor to continue to remit all payments in respect of such Mortgage Loan
to
the Master Servicer. Upon determining that a commercial or mixed-use loan is
no
longer a Specially Serviced Mortgage Loan, the Special Servicer shall
immediately give notice thereof to the Master Servicer and upon giving such
notice, the Special Servicer’s obligation to service such commercial or
mixed-use loan shall terminate and the obligations of the Master Servicer to
service and administer such commercial or mixed-use loan as a Mortgage Loan
that
is not a Specially Serviced Mortgage Loan shall resume.
(b) In
servicing any Specially Serviced Mortgage Loan, the Special Servicer shall
provide to the Trustee originals of documents included within the definition
of
“Mortgage File” for inclusion in the related Mortgage File (to the extent such
documents are in the possession of the Special Servicer) and copies of any
additional related Mortgage Loan information, including correspondence with
the
related Mortgagor, and the Special Servicer shall provide copies of the
foregoing to the Master Servicer, including, without limitation, electronic
data
and/or files in CMSA IRP format.
105
(c) The
Master Servicer shall maintain ongoing payment records with respect to each
of
the Specially Serviced Mortgage Loans and shall provide any Special Servicer
with any information reasonably required by the Special Servicer to perform
its
duties under this Agreement. Any Special Servicer shall provide the Master
Servicer with any information the Master Servicer reasonably requires to perform
its duties under this Agreement.
(d) In
the
event that the Special Servicer is required under the terms of this Agreement
to
service, or perform any of its duties hereunder with respect to, a Mortgage
Loan
that is not a Specially Serviced Mortgage Loan, the Master Servicer shall
provide the Special Servicer with a copy of any document contained in the
Mortgage File that is necessary for the Special Servicer to perform any of
its
duties hereunder. Upon request, the Master Servicer shall provide the Special
Servicer, at the Special Servicer’s expense, with a copy of any document
contained in the Mortgage File that is not currently necessary for the Special
Servicer to perform its duties hereunder.
Section
3.31. Inspections.
(a) Commencing
in 2005, the Master Servicer (or, with respect to Specially Serviced Mortgage
Loans and the related REO Properties, any Special Servicer) shall, with respect
to each commercial or mixed-use loan, inspect or cause to be inspected the
related Mortgaged Property (i) when the Master Servicer determines that it
is
prudent to conduct such an inspection, (ii) with respect to any commercial
or
mixed-use loan with a Stated Principal Balance of greater than $1,000,000,
at
least once every year and (ii) with respect to any commercial or mixed-use
loan
with a Stated Principal Balance of less than or equal to $1,000,000, at least
once every two years. Promptly after a commercial or mixed-use loan becomes
a
Specially Serviced Mortgage Loan (and in any event within 60 days thereafter),
the Master Servicer, or any Special Servicer on its behalf, shall inspect the
Mortgaged Property. The annual inspections will be done at the expense of the
servicer performing the inspection. The inspection done at the time a Mortgage
Loan becomes a Specially Serviced Mortgage Loan will be an expense of the Trust
Fund. The Master Servicer and any Special Servicer shall each prepare or cause
to be prepared as soon as reasonably possible a written report of each such
inspection and shall deliver a copy of such report (which may be in electronic
format) to each Rating Agency within 15 days after the preparation
thereof.
Section
3.32. Available
Information and Notices.
(a) Upon
request, the Master Servicer, or any Special Servicer on its behalf, shall
promptly furnish to each Rating Agency and the Trustee (in written or electronic
format) annual reports of each Mortgagor with respect to the net operating
income and occupancy rates required to be delivered by the related Mortgagor
and
actually received by the Master Servicer, or any Special Servicer on its behalf,
with respect to Specially Serviced Mortgage Loans, to the extent that delivery
of such items is consistent with applicable law and the related Mortgage Loan
documents. Upon request, the Master Servicer, or any Special Servicer on its
behalf, shall promptly furnish to each Rating Agency and the Trustee (in written
or electronic format) all rent rolls and sales reports with respect to Specially
Serviced Mortgage Loans, to the extent they are delivered by the related
Mortgagor to the Master Servicer, or any Special Servicer on its behalf, and
to
the extent that delivery of such items is consistent with applicable law and
the
related Mortgage Loan documents. The Master Servicer, or any Special Servicer
on
its behalf, shall promptly notify each Rating Agency and the Trustee if it
obtains knowledge of any material uninsured damage to a Mortgaged Property
that
relates to a Specially Serviced Mortgage Loan. In addition to the other reports
and information made available and distributed pursuant to other provisions
of
this Agreement, the Master Servicer and any Special Servicer shall, in
accordance with such reasonable rules and procedures as it may adopt, also
make
available any information relating to the commercial or mixed-use loans and
the
related Mortgaged Properties or the related Mortgagors for review by the
Depositor, the Rating Agencies and the Trustee. The Master Servicer and any
Special Servicer acting on its behalf, as the case may be, will also make such
information available to any Person that is a Certificateholder or potential
Certificateholder.
106
ARTICLE
IV
PAYMENTS
TO CERTIFICATEHOLDERS
Section
4.01. Distributions.
(a) The
Trustee shall establish and maintain a Certificate Account, in which the Master
Servicer shall cause to be deposited on behalf of the Trustee on or before
5:00
P.M. New York time on each Certificate Account Deposit Date by wire transfer
of
immediately available funds an amount equal to the sum of (i) any Advance for
the immediately succeeding Distribution Date, (ii) any amount required to be
deposited in the Certificate Account pursuant to Sections 3.11, 3.13 or 3.23,
(iii) all other amounts constituting the Available Distribution Amount for
the
immediately succeeding Distribution Date, (iv) an amount equal to the
Certificate Insurer Premium payable on such Distribution Date and (iv) any
amounts on deposit in the Custodial Account representing Prepayment Charges
collected by the Master Servicer (and any Master Servicer Prepayment Charge
Payment Amounts paid by, or collected on behalf of the Trust Fund by, the Master
Servicer or any Sub-Servicer), other than any such Prepayment Charges or Master
Servicer Prepayment Charge Payment Amounts relating to Principal Prepayments
that occurred after the end of the related Prepayment Period.
On
each
Distribution Date, prior to making any other distributions referred to in
Section 4.01, the Trustee shall withdraw from the Certificate Account and pay
itself any interest earned on the Certificate Account for such Distribution
Date.
On
each
Distribution Date, prior to making any other distributions referred to in
Section 4.01 herein, the Trustee shall withdraw from the Certificate Account
and
pay to the Certificate Insurer, by wire transfer of immediately available funds
to the Insurer Account, the Policy Premium for such Distribution Date. The
Trustee shall deposit any amounts received from the Certificate Insurer pursuant
to the Certificate Guaranty Insurance Policy into the Insurance Account. The
amount necessary to pay any Insured Amount shall be distributed on the
immediately following Distribution Date as part of the Available Distribution
Amount. On each Distribution Date the Trustee shall distribute to each
Certificateholder of record as of the next preceding Record Date (other than
as
provided in Section 9.01 respecting the final distribution) either in
immediately available funds (by wire transfer or otherwise) to the account
of
such Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder has so notified the Trustee at least 5
Business Days prior to the related Record Date, or otherwise by check mailed
to
such Certificateholder at the address of such Holder appearing in the
Certificate Register, such Certificateholder’s share (based on the aggregate of
the Percentage Interests represented by Certificates of the applicable Class
held by such Holder) of the amounts required to be distributed to such Holder
pursuant to this Section 4.01.
On
each
Distribution Date, the Trustee shall withdraw from the Certificate Account
that
portion of Available Distribution Amount for such Distribution Date consisting
of the Interest Remittance Amount and the Insured Amount, if any, for such
Distribution Date, and make the following disbursements and transfers in the
order of priority described below, in each case to the extent of the Interest
Remittance Amount remaining for such Class for such Distribution
Date:
107
(i) to
the
Holders of the Class A Certificates, pro rata, the related Monthly Interest
Distributable Amount and any Unpaid
Interest Shortfall Amount for
each
such Class for such Distribution Date (with the interest portion of any Insured
Amount used to pay the related Monthly Interest Distributable Amount solely
on
the Class A-1W Certificates); and
(ii) sequentially,
to the Holders of the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8 and Class B Certificates, in that order, the
related Monthly Interest Distributable Amount for each such Class for such
Distribution Date.
(b) Except
as
provided in clause (d) below, on each Distribution Date (i) prior to the
Stepdown Date or (ii) on or after the Stepdown Date if a Trigger Event is in
effect, the Trustee shall withdraw from the Certificate Account an amount equal
to the Principal Distribution Amount and distribute to the Holders of the
Offered Certificates, distributions in respect of principal to the extent of
the
Principal Distribution Amount remaining for such Distribution Date:
(i) pro
rata
(based on (x) the aggregate Certificate Principal Balance of the Class A-1,
Class A-1M and Class A-1W Certificates in the case of clause (A) below and
(y)
the aggregate Certificate Principal Balance of the Class A-2A, Class A-2B,
Class
A-2C and Class A-2D Certificates in the case of clause (B) below):
(A) to
the
Holders of the Class A-1, Class A-1M and Class A-1W Certificates, pro rata,
based on the Certificate Principal Balances thereof, until
the
Certificate Principal Balance of each such Class is reduced to zero (with
any
Insured Amount used to pay principal solely on the Class A-1W
Certificates);
and
(B) sequentially,
to the Holders of the Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates, in that order, until the Certificate Principal Balance of each
such Class is reduced to zero; and
(ii) from
the
remaining Principal Distribution Amount, sequentially to the Holders of the
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8 and Class B Certificates, until the Certificate Principal Balance
of
each such Class is reduced to zero.
(c) Except
as
provided in clause (d) below, on each Distribution Date (i) on and after the
Stepdown Date and (ii) on which Trigger Event is not in effect, the Trustee
shall withdraw from the Certificate Account an amount equal to the Principal
Distribution Amount and distribute to the Holders of the Offered Certificates,
distributions in respect of principal to the extent of the Principal
Distribution Amount remaining for such Distribution Date:
108
(i) an
amount
equal to the Class A Principal Distribution Amount, pro rata (based on (x)
the
aggregate Certificate Principal Balance of the Class A-1, Class A-1M and Class
A-1W Certificates in the case of clause (A) below and (y) the aggregate
Certificate Principal Balance of the Class A-2A, Class A-2B, Class A-2C and
Class A-2D Certificates in the case of clause (B) below):
(A) to
the
Holders of the Class A-1, Class A-1M and Class A-1W Certificates, pro rata,
based on the Certificate Principal Balances thereof, until the Certificate
Principal Balance of each such Class is reduced to zero (with any Insured Amount
used to pay principal solely on the Class A-1W Certificates); and
(B) sequentially,
to the Holders of the Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates, in that order, until the Certificate Principal Balance of each
such Class is reduced to zero; and
(ii) sequentially,
to the Holders of the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8 and Class B Certificates, in that order, the
Subordinated Class Principal Distribution Amount for each such Class, until
the
Certificate Principal Balance of each such Class is reduced to zero.
(d) Notwithstanding
the foregoing, on any Distribution Date on which the aggregate Certificate
Principal Balance of the Subordinate Certificates and the Overcollateralized
Amount have been reduced to zero, the Principal Distribution Amount will be
paid
to the Class A Certificates on a pro rata basis, based on the Certificate
Principal Balance thereof, until reduced to zero.
(e) On
each
Distribution Date the Net Monthly Excess Cashflow shall be distributed in the
following order of priority, in each case to the extent of the Net Monthly
Excess Cashflow remaining for such Distribution Date:
(i) to
the
Certificate Insurer, the aggregate of all payments, if any, made by the
Certificate Insurer under the Certificate Guaranty Insurance Policy with respect
to the Class A-1W Certificates, including interest thereon, to the extent not
previously paid or reimbursed;
(ii) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, payable to such Holders as part of the Principal
Distribution Amount as described under Sections 4.01(b), (c) and (d) above,
as
applicable;
(iii) to
the
Holders of the Class A Certificates, pro rata, in an amount equal to any related
Allocated Realized Loss Amount for each such Class;
109
(iv) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class B Certificates, in that order, in each case in an
amount equal to the sum of the Unpaid Interest Shortfall Amount and the
Allocated Realized Loss Amount (such amount to be applied first to cover Unpaid
Interest Shortfall Amount for such Class and second to cover Allocated Realized
Loss Amount for such Class) for each such Class;
(v) from
amounts otherwise payable to the Holders of the Class C Certificates, to the
Net
WAC Shortfall Reserve Fund, (I) in an amount equal to the related Net WAC
Shortfall Amount for each Class of offered certificates which amount shall
be
distributed pursuant to Section 4.08(c) to the Holders of the Offered
Certificates, on a pro rata basis, based on the Certificate Principal Balances
thereof, to the extent needed to pay any remaining Net WAC Shortfall Amount
for
each such Class; provided that any Net Monthly Excess Cashflow remaining after
such allocation to pay Net WAC Shortfall Amount based on the Certificate
Principal Balances of these certificates will be distributed to each such Class
of certificates with respect to which there remains any unpaid Net WAC Shortfall
Amount (after the distribution based on Certificate Principal Balances), pro
rata, based on the amount of such unpaid Net WAC Shortfall Amount, and then
(II)
in an amount sufficient to maintain a balance in the Net WAC Shortfall Reserve
Fund equal to the Net WAC Shortfall Reserve Fund Deposit;
(vi) to
the
Swap Administrator
for payment to the Swap Provider any Swap Termination Payments owed to the
Swap
Provider due to a Swap Provider Trigger Event not previously paid (to the extent
not paid by the Swap Administrator from any upfront payment received pursuant
to
any replacement interest rate swap agreement that may be entered into by the
Supplemental Interest Trust Trustee);
(vii) to
the
Holders of the Class C Certificates, the Monthly Interest Distributable Amount
for such Class and the amount of any remaining Overcollateralization Release
Amount for such Distribution Date;
(viii) if
such
Distribution Date follows the Prepayment Period during which occurs the last
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero; and
(ix) any
remaining amounts to the Holders of the Class R Certificates (in respect of
the
appropriate Residual Interest).
(f) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and any Master
Servicer Prepayment Charge Amounts paid by the Master Servicer during the
related Prepayment Period will be withdrawn from the Certificate Account and
distributed by the Trustee to the Holders of the Class P Certificates and shall
not be available for distribution to the Holders of any other Class of
Certificates. The payment of the foregoing amounts to the Holders of the Class
P
Certificates shall not reduce the Certificate Principal Balances
thereof.
110
(g) On
or
before each Distribution Date, Net Swap Payments payable by the Swap Provider
pursuant to the Swap Agreement to the Swap Administrator, on behalf of the
Supplemental Interest Trust Trustee, will be deposited by the Swap
Administrator, acting on behalf of the Supplemental Interest Trust Trustee,
into
the Swap Account pursuant to the Swap Administration Agreement. The Swap
Administrator shall, to the extent provided in the Swap Administration
Agreement, remit amounts on deposit in the Swap Account to the Trustee for
deposit into the Net WAC Shortfall Reserve Fund. On each Distribution Date,
to
the extent required, the Trustee shall withdraw such amounts from the Net WAC
Shortfall Reserve Fund to distribute to the Certificates in the following order
of priority:
(i) concurrently
to the Holders of the Class A Certificates, pro rata, based on entitlement,
an
amount equal to any Unpaid
Interest Shortfall Amount
for such
Class or Classes to the extent not covered by the Interest Remittance Amount
on
that Distribution Date and solely to the extent the Unpaid Interest Shortfall
Amount is as a result of the interest portion of Realized Losses;
(ii) sequentially,
to the Holders of the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8 and Class B Certificates, in that order, in
an
amount equal to any Unpaid Interest Shortfall Amount for such Class or Classes
to the extent not covered by the Interest Remittance Amount on that Distribution
Date and solely to the extent the Interest Carry Forward Amount is as a result
of the interest portion of Realized Losses;
(iii) to
the
Holders of the Offered Certificates, an amount equal to any Extra Principal
Distribution Amount, to the extent not covered by the Net Monthly Excess
Cashflow on that Distribution Date and solely to the extent the payment of
the
Extra Principal Distribution Amount is as a result of current or prior period
Realized Losses, to be included in the Principal Distribution Amount for that
Distribution Date and payable to such Holders as part of the Principal
Distribution Amount as described under Sections 4.01(b), (c) and (d) above,
as
applicable;
(iv) to
the
Net WAC Reserve Fund, to pay Net WAC Shortfall Amounts to the Holders of the
Offered Certificates, on a pro rata basis, based on the aggregate amount of
Net
WAC Shortfall Amounts for such Class(es) of Offered Certificates remaining
unpaid, to the extent not covered by the Net Monthly Excess Cashflow on that
Distribution Date;
(v) to
the
Holders of the Class A Certificates, pro rata, in an amount equal to any
Allocated Realized Loss Amount for such Class or Classes, to the extent not
covered by the Net Monthly Excess Cashflow on that Distribution Date;
and
(vi) sequentially
to the Holders of the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8 and Class B Certificates, in that order, in
an
amount equal to any Allocated Realized Loss Amount for such Class or Classes,
to
the extent not covered by the Net Monthly Excess Cashflow on that Distribution
Date.
111
(h) Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Depositor
or the Master Servicer shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(i) The
Trustee shall invest or cause the institution maintaining the Certificate
Account to invest the funds in the Certificate Account in Permitted Investments
designated in the name of the Trustee for the benefit of the Certificateholders
and the Certificate Insurer, which shall mature no later than the Distribution
Date next following the date of such investment and shall not be sold or
disposed of prior to maturity. All income and gain realized from any such
investment shall be for the benefit of the Trustee and shall be subject to
its
withdrawal or order from time to time. The amount of any losses incurred in
respect of any such investments shall be deposited in the Certificate Account
by
the Trustee out of its own funds immediately as realized without any right
of
reimbursement.
(j) Except
as
otherwise provided in Section 9.01, if the Master Servicer anticipates that
a
final distribution with respect to any Class of Certificates will be made on
the
next Distribution Date, the Master Servicer shall, no later than the
Determination Date in the month of such final distribution, notify the Trustee
and the Trustee shall, no later than two (2) Business Days after such
Determination Date, mail on such date to each Holder of such Class of
Certificates a notice to the effect that: (i) the Trustee anticipates that
the
final distribution with respect to such Class of Certificates will be made
on
such Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Trustee or as otherwise specified therein,
and
(ii) no interest shall accrue on such Certificates from and after the end of
the
prior calendar month.
Any
funds
not distributed to any Holder or Holders of Certificates of such Class 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
4.01(i) shall not have been surrendered for cancellation within six months
after
the time specified in such notice, the Trustee 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 six months after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee shall take reasonable steps
as
directed by the Depositor, or appoint an agent to take reasonable steps, to
contact 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 Fund. If within nine months after the second notice any such
Certificates shall not have been surrendered for cancellation, the Class R
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust as a result of such
Certificateholder’s failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(i).
112
Section
4.02. Statements
to Certificateholders.
(a) On
each
Distribution Date, based, as applicable, on information provided to it by the
Master Servicer, the Trustee shall prepare and make available on the Trustee’s
website, which shall initially be located at “xxx.xxxxxxx.xxx” (assistance in
using the website can be obtained by calling the Trustee’s customer service desk
at (000) 000-0000), to each Holder of the Regular Certificates, the Certificate
Insurer, the Swap Provider, the Master Servicer and the Rating Agencies, a
statement as to the distributions made on such Distribution Date setting
forth:
(i) the
applicable record dates, accrual periods, determination dates for calculating
distributions and general distributions dates;
(ii) the
total
cash flows received and the general sources thereof;
(iii) the
amount of any Net Swap Payment payable to the Derivative Administrator, any
Net
Swap Payment payable to he Swap Provider, any Swap Termination Payment payable
to the Derivative Administrator and any Swap Termination Payment payable to
the
Swap Provider
(iv)
(A) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates, separately identified, allocable to principal
and
(B) the amount of the distribution made on such Distribution Date to the Holders
of the Class P Certificates allocable to Prepayment Charges and Master Servicer
Prepayment Charge Payment Amounts;
(v) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates (other than the Class P Certificates) allocable
to
interest, separately identified;
(vi) the
Pass-Through Rate on each Class of Regular Certificates (other than the Class
P
Certificates) for such Distribution Date;
(vii) the
aggregate amount of Advances for such Distribution Date (including the general
purpose of such Advances), the aggregate amount of unreimbursed Advances at
the
close of business on the Distribution Date, and the general source of funds
for
reimbursements;
(viii) the
number and Aggregate Stated Principal Balance of the Mortgage Loans as of the
end of the related Due Period;
113
(ix) the
Overcollateralization Release Amount and the Overcollateralization Deficiency
Amount for such Distribution Date;
(x) the
aggregate Certificate Principal Balance of each Class of Regular Certificates
after giving effect to the amounts distributed on such Distribution Date (in
the
case of each Class of the Offered Certificates, separately identifying any
reduction thereof due to the allocation of Realized Losses
thereto);
(xi) the
number and Stated Principal Balance of Mortgage Loans in respect of which (a)
one Scheduled Payment is delinquent, (b) two Scheduled Payments are delinquent,
(c) three or more Scheduled Payments are and (d) foreclosure proceedings have
been commenced, in each case as of the end of the calendar month prior to such
Distribution Date;
(xii) the
number, aggregate principal balance and book value of any REO Properties as
of
the close of business on the last day of the calendar month preceding the month
in which such Distribution Date occurs;
(xiii) the
weighted average remaining term to maturity, weighted average Mortgage Rate
and
weighted average Net Mortgage Rate of the Mortgage Loans as of the close of
business on the first day of the calendar month in which such Distribution
Date
occurs;
(xiv) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period;
(xv) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period and the cumulative amount of Realized Losses;
(xvi) if
applicable, material modifications, extensions or waivers to Mortgage Loan
terms, fees, penalties or payments during the preceding calendar month or that
have become material over time;
(xvii) the
aggregate amount of extraordinary Trust Fund expenses withdrawn from the
Custodial Account or the Certificate Account for such Distribution
Date;
(xviii) the
aggregate amount of any Prepayment Interest Shortfalls for such Distribution
Date, to the extent not covered by payments by the Master Servicer or a
Sub-Servicer pursuant to Section 3.23, and the aggregate amount of Relief Act
Interest Shortfalls for such Distribution Date;
(xix) the
Monthly Interest Distributable Amount in respect of each Class of the Offered
Certificates for such Distribution Date and the Unpaid Interest Shortfall
Amount, if any, with respect to each Class of Offered Certificates for such
Distribution Date;
(xx)
(A) the
Overcollateralization Target Amount, (B) the Overcollateralized Amount and
(C)
the amount, if any, by which the Overcollateralization Target Amount exceeds
the
Overcollateralized Amount, in each case after giving effect to the distribution
made on the Regular Certificates on such Distribution Date;
114
(xxi) the
aggregate amount of servicing compensation received by the Master Servicer
with
respect to the related Due Period and such other customary information as the
Trustee deems necessary or desirable, or which a Certificateholder reasonably
requests, to enable Certificateholders to prepare their tax
returns;
(xxii) the
aggregate of any deposits to and withdrawals from the Net WAC Shortfall Reserve
Fund for such Distribution Date and the remaining amount on deposit in the
Net
WAC Shortfall Reserve Fund after such deposits and withdrawals;
(xxiii) the
Available Distribution Amount for such Distribution Date;
(xxiv) the
Insured Amount, if any, paid by the Certificate Insurer under the Certificate
Guaranty Insurance Policy for such Distribution Date and the aggregate Insured
Amounts for all prior Distribution Dates paid by the Certificate Insurer under
the Certificate Guaranty Insurance Policy and not yet reimbursed;
(xxv) updated
pool composition data including the following with respect to each Loan Group:
average loan balance, weighted average mortgage rate, weighted average
loan-to-value ratio at origination, weighted average FICO at originationweighted
average remaining term; and [NOTE - Item 1121(a)(8) requires updated pool
composition information, the foregoing is a suggestion of what to
provide]
(xxvi) information
about any additions of, substitutions for or removal of any Mortgage Loans
from
the Trust Fund, and any changes in the underwriting, acquisition or selection
criteria as to any Mortgage Loans added to the Trust Fund.
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall also be expressed as a dollar amount per Single
Certificate.
On
each
Distribution Date the Trustee 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 Trustee
and Bloomberg.
Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
prepare and forward, to each Person who at any time during the calendar year
was
a Holder of a Certificate, a statement containing the information set forth
in
subclauses (i) and (ii) above, aggregated for such calendar year or applicable
portion thereof during which such person was a Certificateholder. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code and regulations thereunder as from
time
to time are in force.
115
On
each
Distribution Date the Trustee shall prepare and make available on the Trustee’s
website, which shall initially be located at “xxx.xxxxxxx.xxx” (assistance in
using the website can be obtained by calling the Trustee’s customer service desk
at (000) 000-0000), to each Holder of a Class R Certificate a copy of the
reports forwarded to the other Certificateholders on such Distribution
Date.
Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
prepare and forward, to each Person who at any time during the calendar year
was
a Holder of a Class R Certificate a statement containing the information
provided pursuant to the previous paragraph aggregated for such calendar year
or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time are in
force.
The
location of the Trustee’s website and the procedures used therein are subject to
change from time to time at the Trustee’s discretion. The Trustee shall have the
right to change the way monthly distribution statements are distributed in
order
to make such distribution more convenient and/or more accessible to the above
parties. The Trustee shall be entitled to rely on but shall not be responsible
for the content or accuracy of any information provided by third parties for
purposes of preparing the monthly statement, and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto). As a condition to access
the
Trustee’s website, the Trustee may require registration and the acceptance of a
disclaimer. Notwithstanding anything to the contrary set forth in this
Agreement, the parties hereto acknowledge that in connection with the Trustee’s
preparation of the foregoing reports, the Trustee will rely solely upon the
information provided to it in the Remittance Reports.
Section
4.03. Remittance
Reports; Advances by the Master Servicer.
(a) On
the
Business Day following each Determination Date, the Master Servicer shall
deliver to the Trustee a report, prepared as of the close of business on the
Determination Date (the “Remittance Report”), in the form of an electromagnetic
tape or disk. The Remittance Report and any written information supplemental
thereto shall include such information with respect to the Mortgage Loans that
is required by the Trustee for purposes of making the calculations and preparing
the statement described in Sections 4.01 and 4.02, as set forth in written
specifications or guidelines issued by the Trustee from time to time. The
Trustee shall have no obligation to recompute, recalculate or verify any
information provided to it by the Master Servicer.
116
(b) The
Master Servicer shall determine the aggregate amount of Advances required to
be
made for the related Distribution Date, which shall be in an aggregate amount
equal to the sum of (1) the aggregate amount of Monthly Payments (with each
interest portion thereof adjusted to the Mortgage Rate less the sum of the
Master Servicing Fee Rate, the Sub-Servicing Fee Rate and any applicable PMI
Insurer Fee Rate, other than Balloon Payments, less the amount of any reductions
in the amount of interest collectable from the Mortgagor pursuant to the Relief
Act, on the Outstanding Mortgage Loans as of the related Due Date, which Monthly
Payments were delinquent as of the close of business as of the related
Determination Date) plus (2) with respect to each Balloon Loan delinquent in
respect of its Balloon Payment as of the close of business on the related
Determination Date, an amount equal to the assumed Monthly Payment (net of
the
related Master Servicing Fees and Sub-Servicing Fees) that would have been
due
on the related Due Date based on the original principal amortization scheduled
for such Balloon Loan until such Balloon Loan is finally liquidated; provided
that no Advance shall be made if it would be a Nonrecoverable Advance. On or
before 4:00 P.M. New York time on each Certificate Account Deposit Date, the
Master Servicer shall either (i) deposit in the Certificate Account from its
own
funds, or funds received therefor from the Sub-Servicers, an amount equal to
the
Advances to be made by the Master Servicer or any Sub-Servicers in respect
of
the related Distribution Date, (ii) withdraw from amounts on deposit in the
Custodial Account and deposit in the Certificate Account all or a portion of
the
amounts held for future distribution in discharge of any such Advance, or (iii)
make advances in the form of any combination of (i) and (ii) aggregating the
amount of such Advance. Any portion of the amounts held for future distribution
so used shall be replaced by the Master Servicer by deposit in the Certificate
Account on or before 1:00 P.M. New York time on any future Certificate Account
Deposit Date to the extent that funds attributable to the Mortgage Loans that
are available in the Custodial Account for deposit in the Certificate Account
on
such Certificate Account Deposit Date shall be less than payments to
Certificateholders required to be made on the following Distribution Date.
The
amount of any reimbursement pursuant to Section 3.11 in respect of outstanding
Advances on any Distribution Date shall be allocated to specific Monthly
Payments due but delinquent for previous Due Periods, which allocation shall
be
made, to the extent practicable, to Monthly Payments which have been delinquent
for the longest period of time. Such allocations shall be conclusive for
purposes of reimbursement to the Master Servicer from recoveries on related
Mortgage Loans pursuant to Section 3.11. The determination by the Master
Servicer that it has made a Nonrecoverable Advance or that any proposed Advance,
if made, would constitute a Nonrecoverable Advance, shall be evidenced by a
certificate of a Servicing Officer delivered to the Sponsor, the Certificate
Insurer and the Trustee with the Remittance Report. The Trustee shall deposit
all funds it receives pursuant to this Section 4.03 into the Certificate
Account.
(c) In
the
event that the Master Servicer determines as of any Certificate Account Deposit
Date that it will be unable to deposit in the Certificate Account an amount
equal to the Advance required to be made for the immediately succeeding
Distribution Date in the amount determined by the Master Servicer pursuant
to
paragraph (b) above, it shall give notice to the Trustee of its inability to
Advance (such notice may be given by telecopy), not later than 4:00 P.M., New
York time, on such date, specifying the portion of such amount that it will
be
unable to deposit. Not later than 4:00 P.M., New York time, on the earlier
of
(x) two Business Days following such Certificate Account Deposit Date or (y)
the
Business Day preceding the related Distribution Date, unless by such time the
Master Servicer shall have directly or indirectly deposited in the Certificate
Account the entire amount of the Advances required to be made for the related
Distribution Date, pursuant to Section 7.01, the Trustee shall (a) terminate
all
of the rights and obligations of the Master Servicer under this Agreement in
accordance with Section 7.01 and (b) assume the rights and obligations of the
Master Servicer hereunder, including the obligation to deposit in the
Certificate Account an amount equal to the Advance for the immediately
succeeding Distribution Date.
117
Section
4.04. Distributions
on the REMIC Regular Interests.
(a) On
each
Distribution Date, the Trustee shall cause the Available Distribution Amount,
in
the following order of priority, to be distributed by REMIC 1 to REMIC 2 on
account of the REMIC 1 Regular Interests or withdrawn from the Certificate
Account and distributed to the Holders of the Class R Certificates (in respect
of the Class R-1 Interest), as the case may be:
(i) to
Holders of REMIC 1 Regular Interest I-1-A through I-59-B, REMIC 1 Regular
Interest P and REMIC 1 Regular Interest A-I, pro rata, in an amount equal to
(A)
Uncertificated Accrued Interest for such REMIC 1 Regular Interests for such
Distribution Date, plus (B) any amounts payable in respect thereof remaining
unpaid from previous Distribution Dates; and
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, payments of principal shall be allocated as follows: first, to REMIC
1
Regular Interests I-1-A through I-59-B starting with the lowest numerical
denomination until the Uncertificated Principal Balance of each such REMIC
1
Regular Interest is reduced to zero, provided that, for REMIC 1 Regular
Interests with the same numerical denomination, such payments of principal
shall
be allocated pro rata between such REMIC 1 Regular Interests, and second to
the
extent of any Overcollateralization Release to REMIC 1 Regular Interest A-I
until the Uncertificated Principal Balance of such REMIC 1 Regular Interest
is
reduced to zero.
(iii) to
the
Holders of REMIC 1 Regular Interest P, (A) on each Distribution Date, 100%
of
the amount paid in respect of Prepayment Charges and (B) on the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause;
(b) On
each
Distribution Date, the Trustee shall cause the Available Distribution Amount,
in
the following order of priority, to be distributed by REMIC 2 to REMIC 3 on
account of the REMIC 2 Regular Interests or withdrawn from the Certificate
Account and distributed to the Holders of the Class R Certificates (in respect
of the Class R-2 Interest), as the case may be:
(i) first,
to
the Holders of REMIC 2 Regular Interest IO, in an amount equal to (A)
Uncertificated Accrued Interest for such REMIC 2 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates and second, to the Holders of REMIC 2 Regular
Interest AA, REMIC 2 Regular Interest A-1, REMIC 2 Regular Interest A-1M, REMIC
2 Regular Interest A-1W, REMIC 2 Regular Interest A-2A, REMIC 2 Regular Interest
A-2B, REMIC 2 Regular Interest A-2C, REMIC 2 Regular Interest A-2D, REMIC 2
Regular Interest M-1, REMIC 2 Regular Interest M-2, REMIC 2 Regular Interest
M-3, REMIC 2 Regular Interest M-4, REMIC 2 Regular Interest M-5, REMIC 2 Regular
Interest M-6, REMIC 2 Regular Interest M-7, REMIC 2 Regular Interest M-8, REMIC
2 Regular Interest B, REMIC 2 Regular Interest ZZ, and REMIC 2 Regular Interest
P, pro rata, in an amount equal to
118
(A) the
related Uncertificated Accrued Interest for such Distribution Date, plus
(B) any
amounts in respect thereof remaining unpaid from the previous Distribution
Dates.
Amounts
payable as Uncertificated Accrued Interest in respect of REMIC 2 Regular
Interest ZZ shall be reduced when the REMIC 2 Overcollateralized Amount is
less
than the REMIC 2 Overcollateralization Target Amount, by the lesser of (x)
the
amount of such difference and (y) the Maximum Uncertificated Accrued Interest
Deferral Amount, and such amount will be payable to the Holders of REMIC 2
Regular Interest A-1, REMIC 2 Regular Interest A-1M, REMIC 2 Regular Interest
A-1W, REMIC 2 Regular Interest A-2A, REMIC 2 Regular Interest A-2B, REMIC 2
Regular Interest A-2C, REMIC 2 Regular Interest A-2D, REMIC 2 Regular Interest
M-1, REMIC 2 Regular Interest M-2, REMIC 2 Regular Interest M-3, REMIC 2 Regular
Interest M-4, REMIC 2 Regular Interest M-5, REMIC 2 Regular Interest M-6, REMIC
2 Regular Interest M-7, REMIC 2 Regular Interest M-8, REMIC 2 Regular Interest
B
in the same proportion as the Overcollateralization Deficiency Amount is
allocated to the Corresponding Certificates and the Uncertificated Principal
Balance of REMIC 2 Regular Interest ZZ shall be increased by such
amount;
(ii) to
the
Holders of REMIC 2 Regular Interest P, (A) on each Distribution Date, 100%
of
the amount paid in respect of Prepayment Charges on the Corresponding
Certificate and (B) on the Distribution Date immediately following the
expiration of the latest Prepayment Charge as identified on the Prepayment
Charge Schedule or any Distribution Date thereafter until $100 has been
distributed pursuant to this clause;
(iii) to
the
Holders of the REMIC 2 Regular Interests, in an amount equal to the remainder
of
the Available Funds for such Distribution Date after the distributions made
pursuant to clauses (i) and (ii) above, allocated as follows:
(A) 98%
of
such remainder to the Holders of REMIC 2 Regular Interest AA, until the
Uncertificated Principal Balance of such REMIC 2 Regular Interest is reduced
to
zero;
(B) 2.00%
of
such remainder, first, to the Holders of REMIC 2 Regular Interest A-1, REMIC
2
Regular Interest A-1M, REMIC 2 Regular Interest A-1W, REMIC 2 Regular Interest
A-2A, REMIC 2 Regular Interest A-2B, REMIC 2 Regular Interest A-2C, REMIC 2
Regular Interest A-2D, REMIC 2 Regular Interest M-1, REMIC 2 Regular Interest
M-2, REMIC 2 Regular Interest M-3, REMIC 2 Regular Interest M-4, REMIC 2 Regular
Interest M-5, REMIC 2 Regular Interest M-6, REMIC 2 Regular Interest M-7, REMIC
2 Regular Interest M-8, REMIC 2 Regular Interest B, 1% in the same proportion
as
principal payments are allocated to the Corresponding Certificates, until the
Uncertificated Principal Balances of such REMIC 2 Regular Interests are reduced
to zero, and second, to the Holders of REMIC 2 Regular Interest ZZ, until the
Uncertificated Principal Balance of such REMIC 2 Regular Interest is reduced
to
zero;
119
provided,
however, that 98% and 2% of any principal payments that are attributable to
an
Overcollateralization Release Amount shall be allocated to Holders of REMIC
2
Regular Interest AA and REMIC 2 Regular Interest ZZ, respectively;
and
(C) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-2 Interest);
Section
4.05. Allocation
of Realized Losses.
(a) All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee on
each
Distribution Date as follows: first, to Net Monthly Excess Cashflow, through a
distribution of the Extra Principal Distribution Amount for that Distribution
Date; second, to the Overcollateralized Amount by a reduction of the Certificate
Principal Balance of the Class C Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; third, to the Class B Certificates,
in
reduction of the Certificate Principal Balance thereof, until reduced to zero,
fourth, to the Class M-8 Certificates, in reduction of the Certificate Principal
Balance thereof, until reduced to zero, fifth, to the Class M-7 Certificates,
in
reduction of the Certificate Principal Balance thereof, until reduced to zero,
sixth, to the Class M-6 Certificates, in reduction of the Certificate Principal
Balance thereof, until reduced to zero, seventh, to the Class M-5 Certificates,
in reduction of the Certificate Principal Balance thereof, until reduced to
zero, eighth, to the Class M-4 Certificates, in reduction of the Certificate
Principal Balance thereof, until reduced to zero, ninth, to the Class M-3
Certificates, in reduction of the Certificate Principal Balance thereof, until
reduced to zero, tenth, to the Class M-2 Certificates, in reduction of the
Certificate Principal Balance thereof, until reduced to zero, eleventh, to
the
Class M-1 Certificates, in reduction of the Certificate Principal Balance
thereof, until reduced to zero, and twelfth, to the Class A Certificates, on
a
pro rata basis, in reduction of the Certificate Principal Balance of each such
Class, until reduced to zero, provided, however, that (i) any Realized Losses
on
the Mortgage Loans that would otherwise be allocated to the Class A-1
Certificates will instead be allocated to the Class A-1M Certificates, until
its
certificate principal balance has been reduced to zero and (ii) any Realized
Losses allocable to the Class A-1W Certificates will be covered by the
Certificate Guaranty Insurance Policy. All Realized Losses to be allocated
to
the Certificate Principal Balances of all Classes on any Distribution Date
shall
be so allocated after the actual distributions to be made on such date as
provided above. All references above to the Certificate Principal Balance of
any
Class of Certificates shall be to the Certificate Principal Balance of such
Class immediately prior to the relevant Distribution Date, before reduction
thereof by any Realized Losses, in each case to be allocated to such Class
of
Certificates, on such Distribution Date.
Any
allocation of Realized Losses to an Offered Certificate on any Distribution
Date
shall be made by reducing the Certificate Principal Balance thereof by the
amount so allocated. Any allocation of Realized Losses to a Class C Certificate
shall be made by first, reducing the amount otherwise payable in respect thereof
pursuant to Section 4.01(e)(vii), and second, by reducing the Certificate
Principal Balance thereof by the amount so allocated. No allocations of any
Realized Losses shall be made to the Certificate Principal Balances of the
Class
P Certificates.
120
(b) All
Realized Losses on the Mortgage Loans shall be allocated on each Distribution
Date to REMIC 1 Regular Interest A-I until the Uncertificated Principal Balance
of such REMIC 1 Regular Interest has been reduced to zero and second, to REMIC
1
Regular Interest I-1-A through REMIC 1 Regular Interest I-59-B, starting with
the lowest numerical denomination until such REMIC 1 Regular Interest has been
reduced to zero, provided that, for REMIC 1 Regular Interests with the same
numerical denomination, such Realized Losses shall be allocated pro
rata
between
such REMIC 1 Regular Interests.
(c) All
Realized Losses on the REMIC 1 Regular Interests shall be allocated to the
following REMIC 2 Regular Interests in the specified percentages, as follows:
first to Uncertificated Accrued Interest payable to the REMIC 2 Regular Interest
AA and REMIC 2 Regular Interest ZZ up to an aggregate amount equal to the REMIC
2 Interest Loss Allocation Amount, 98% and 2% respectively; second, to the
Uncertificated Principal Balances of REMIC 2 Regular Interest AA and REMIC
2
Regular Interest ZZ up to an aggregate amount equal to the REMIC 2 Principal
Loss Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest AA, REMIC 2 Regular Interest
B
and REMIC 2 Regular Interest ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest B has been reduced
to zero; fourth, to the Uncertificated Principal Balances of REMIC 2 Regular
Interest AA, REMIC 2 Regular Interest M-8 and REMIC 2 Regular Interest MT-ZZ,
98%, 1% and 1%, respectively, until the Uncertificated Principal Balance of
REMIC 2 Regular Interest M-8 has been reduced to zero; fifth, to the
Uncertificated Principal Balances of REMIC 2 Regular Interest AA, REMIC 2
Regular Interest M-7 and REMIC 2 Regular Interest ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest M-7 has been reduced to zero; sixth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest AA, REMIC 2 Regular Interest M-6 and REMIC
2 Regular Interest ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 2 Regular Interest M-6 has been reduced to zero;
seventh, to the Uncertificated Principal Balances of REMIC 2 Regular Interest
AA, REMIC 2 Regular Interest M-5 and REMIC 2 Regular Interest ZZ, 98%, 1% and
1%, respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest M-5 has been reduced to zero; eighth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest AA, REMIC 2 Regular Interest M-4 and REMIC
2 Regular Interest ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 2 Regular Interest M-4 has been reduced to zero;
ninth, to the Uncertificated Principal Balances of REMIC 2 Regular Interest
AA,
REMIC 2 Regular Interest M-3 and REMIC 2 Regular Interest ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest M-3 has been reduced to zero; tenth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest AA, REMIC 2 Regular Interest M-2 and REMIC
2 Regular Interest ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 2 Regular Interest M-2 has been reduced to zero;
and
eleventh, to the Uncertificated Principal Balances of REMIC 2 Regular Interest
AA, REMIC 2 Regular Interest M-1 and REMIC 2 Regular Interest ZZ, 98%, 1% and
1%, respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest M-1 has been reduced to zero.
121
Section
4.06. Information
Reports to Be Filed by the Master Servicer.
The
Master Servicer or the Sub-Servicers shall file information reports with respect
to the receipt of mortgage interest received in a trade or business,
foreclosures and abandonments of any Mortgaged Property and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050H, 6050J and 6050P of the Code,
respectively, and deliver to the Trustee an Officers’ Certificate stating that
such reports have been filed. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
Section
4.07. Compliance
with Withholding Requirements.
Notwithstanding
any other provision of this Agreement, the Trustee shall comply with all federal
withholding requirements respecting payments to Certificateholders of interest
or original issue discount on the Mortgage Loans, that the Trustee reasonably
believes are applicable under the Code. The consent of Certificateholders shall
not be required for such withholding. In the event the Trustee withholds any
amount from interest or original issue discount payments or advances thereof
to
any Certificateholder pursuant to federal withholding requirements, the Trustee
shall, together with its monthly report to such Certificateholders pursuant
to
Section 4.02 hereof, indicate such amount withheld.
Section
4.08. Net
WAC Shortfall Reserve Fund.
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of Offered Certificates, the Net WAC Shortfall Reserve Fund. In
addition, on the Closing Date, the Depositor shall deposit into the Net WAC
Shortfall Reserve Fund an amount equal to the Net WAC Shortfall Reserve Fund
Deposit.
(b) On
each
Distribution Date, to the extent required, the Trustee shall make withdrawals
from the Net WAC Shortfall Reserve Fund to the extent of any Net Swap Payment
received form the Swap Administrator and distribute such amounts in accordance
with the manner and priority as set forth in Section 4.01(g)
hereof.
(c) On
each
Distribution Date, the Trustee shall transfer from the Certificate Account
to
the Net WAC Shortfall Reserve Fund the amounts specified pursuant to Sections
4.01(e)(v). On each Distribution Date, to the extent required, the Trustee
shall
make withdrawals from the Net WAC Shortfall Reserve Fund and use the amounts
in
the Net WAC Shortfall Reserve Fund, other than amounts received from the Swap
Administrator, to make distributions to the Offered Certificates, in an amount
equal to the amount of any Net WAC Shortfall Amount on such Certificates. Any
such amounts shall be distributed to the Certificates in the order of priority
set forth in Section 4.01(e)(v) hereof. Any such amounts transferred shall
be
treated for federal tax purposes as amounts distributed by REMIC 2 to the
Holders of the Class C Certificates.
122
(d) The
Net
WAC Shortfall Reserve Fund shall be an Eligible Account. Amounts held in the
Net
WAC Shortfall Reserve Fund from time to time shall continue to constitute assets
of the Trust Fund, but not of the REMICs, until released from the Net WAC
Shortfall Reserve Fund pursuant to this Section 4.08. The Net WAC Shortfall
Reserve Fund constitutes an “outside reserve fund” within the meaning of
Treasury Regulation § 1.860G-2(h) and is not an asset of any REMIC. The Holders
of the Class C Certificates shall be the owner of the Net WAC Shortfall Reserve
Fund. The Trustee shall keep records that accurately reflect the funds on
deposit in the Net WAC Shortfall Reserve Fund. The Trustee shall, at the written
direction of the Majority Class C Certificateholder, invest amounts on deposit
in the Net WAC Shortfall Reserve Fund in Permitted Investments. In the absence
of written direction to the Trustee from the Majority Class C Certificateholder,
all funds in the Net WAC Shortfall Reserve Fund shall remain uninvested. On
each
Distribution Date, the Trustee shall distribute, not in respect of any REMIC,
any interest earned on the Net WAC Shortfall Reserve Fund to the Holders of
the
Class C Certificates.
Section
4.09. Supplemental
Interest Trust.
(a) As
of the
Closing Date, the Trustee shall establish and maintain in the name of the
Supplemental Interest Trust Trustee, the Supplemental Interest Trust, a separate
trust for the benefit of the Holders of the Offered Certificates and the Swap
Provider. The Supplemental Interest Trust shall hold the Swap Agreement, the
Swap Administration Agreement and the Swap Account. The Swap Account shall
be an
Eligible Account, and funds on deposit therein shall be held separate and apart
from, and shall not be commingled with, any other moneys, including, without
limitation, other moneys of the Trustee held pursuant to this Agreement. In
performing its duties hereunder and under the Swap Agreement and Swap
Administration Agreement, the Supplemental Interest Trust Trustee shall be
entitled to the same rights, protections and indemnities as provided to the
Trustee hereunder.
(b) Amounts
payable by the Trust Fund to the Swap Administrator in respect of Net Swap
Payments and Swap Termination Payments other than Swap Termination Payments
resulting from a Swap Provider Trigger Event (and to the extent not paid by
the
Swap Administrator from any upfront payment received pursuant to any replacement
interest rate swap agreement that may be entered into by the Supplemental
Interest Trust Trustee) shall
be
deducted from Available Distribution Amount prior to any distributions to the
Certificateholders. On
or
before each Distribution Date, such amounts will be distributed by the Trust
Fund to the Swap Administrator, and paid by the Swap Administrator to the Swap
Provider pursuant to the Swap Administration Agreement, first to make any Net
Swap Payment owed to the Swap Provider pursuant to the Swap Agreement for such
Distribution Date, and second to make any Swap Termination Payment not due
to a
Swap Provider Trigger Event owed to the Swap Provider pursuant to the Swap
Agreement (to the extent not paid by the Swap Administrator from any upfront
payment received pursuant to any replacement interest rate swap agreement that
may be entered into by the Swap Administrator). Payments by the Trust Fund
to
the Swap Administrator in respect of any Swap Termination Payment triggered
by a
Swap Provider Trigger Event owed to the Swap Provider pursuant to the Swap
Agreement (to the extent not paid by the Swap Administrator from any upfront
payment received pursuant to any replacement interest rate swap agreement that
may be entered into by the Supplemental Interest Trust Trustee) will be
subordinated to distributions to the Holders of the Offered Certificates and
shall be paid as set forth in Section 4.01(e)(vi).
123
(c) On
each
Distribution Date, the Swap Administrator shall deposit into the Swap Account
amounts received from the Swap Provider. The Swap Administrator shall, to the
extent provided in the Swap Administration Agreement, remit amounts on deposit
in the Swap Account to the Trustee for deposit into the Net WAC Shortfall
Reserve Fund. On each Distribution Date, to the extent required, the Trustee
shall withdraw such amounts from the Net WAC Shortfall Reserve Fund to
distribute to the Certificates in the following order of priority:
(i) first,
an
amount equal to the aggregate amount required under Section 4.01(g) to be
distributed on such Distribution Date, to the Offered Certificateholders in
accordance with Section 4.01(g) of this Pooling and Servicing Agreement, and
(ii) second,
any
remainder to Impac Funding Corporation.
(d) The
Supplemental Interest Trust constitutes an “outside reserve fund” within the
meaning of Treasury Regulation § 1.860G-2(h) and is not an asset of any REMIC.
The Holders of the Class C Certificates shall be the beneficial owner of the
Supplemental Interest Trust, subject to the power of the Swap Administrator
to
transfer amounts under this Agreement. The Swap Administrator shall keep records
that accurately reflect the funds on deposit in the Supplemental Interest Trust.
The Swap Administrator shall, at the written direction of the Holder of the
Majority Class C Certificateholder, invest amounts on deposit in the
Supplemental Interest Trust in Permitted Investments. In the absence of written
direction to the Swap Administrator from the Majority Class C Certificateholder,
all funds in the Supplemental Interest Trust shall remain uninvested. On each
Distribution Date, Swap Administrator shall distribute, not in respect of any
REMIC, any interest earned on the Supplemental Interest Trust to the Holders
of
the Class C Certificates.
(e) For
federal income tax purposes, amounts paid to the Swap Administrator on each
Distribution Date pursuant to Sections 4.09(b) and 4.01(e)(vi) shall first
be
deemed paid to the Swap Administrator in respect of Class IO Interest to the
extent of the amount distributable on such Class IO Interest on such
Distribution Date, and any remaining amount shall be deemed paid to the Swap
Administrator in respect of a Class IO Distribution Amount.
(f) The
Swap
Administrator shall treat the Holders of Certificates (other than the Class
P,
Class C and Class R Certificates) as having entered into a notional principal
contract with respect to the Holders of the Class C Certificates. Pursuant
to
each such notional principal contract, all Holders of Certificates (other than
the Class P, Class C and Class R Certificates) shall be treated as having agreed
to pay, on each Distribution Date, to the Holder of the Class C Certificates
an
aggregate amount equal to the excess, if any, of (i) the amount payable on
such
Distribution Date on the REMIC 3 Regular Interest ownership of which is
represented by such Class of Certificates over (ii) the amount payable on such
Class of Certificates on such Distribution Date (such excess, a “Class IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro rata among such Certificates based on the
amount of interest otherwise payable to such Certificates, and a Class IO
Distribution Amount payable from principal collections shall be allocated to
the
most subordinate Class of such Certificates with an outstanding principal
balance to the extent of such balance. In addition, pursuant to such notional
principal contract, the Holder of the Class C Certificates shall be treated
as
having agreed to pay Net WAC Shortfall Amounts to the Holders of the
Certificates (other than the Class C, Class P and Class R Certificates) in
accordance with the terms of this Agreement. Any payments to such Certificates
from amounts deemed received in respect of this notional principal contract
shall not be payments with respect to a Regular Interest in a REMIC within
the
meaning of Code Section 860G(a)(1). However, any payment from the Certificates
(other than the Class C, Class P and Class R Certificates) of a Class IO
Distribution Amount shall be treated for tax purposes as having been received
by
the Holders of such Certificates in respect of the REMIC 3 Regular Interest
ownership of which is represented by such Certificates, and as having been
paid
by such Holders to the Supplemental Interest Trust pursuant to the notional
principal contract. Thus, each Certificate (other than the Class P Certificates
and Class R Certificates) shall be treated as representing not only ownership
of
a Regular Interest in REMIC 3, but also ownership of an interest in, and
obligations with respect to, a notional principal contract.
124
(g) In
the
event that the Swap Agreement is terminated prior to the Distribution Date
in
January 2011, the Swap Administrator shall, at the direction of the Depositor,
use reasonable efforts to appoint a successor swap provider using any Swap
Termination Payments paid by the Swap Provider. If the Swap Administrator is
unable to locate a qualified successor swap provider, any such Swap Termination
Payments will be remitted to the Swap Administrator for payment to the Holders
of the Offered Certificates of amounts described in Section
4.09(c).
Section
4.10. The
Certificate Guaranty Insurance Policy.
(a) If
the
Trustee determines that a Deficiency Amount exists for such Distribution Date,
the Trustee shall complete the notice as set forth in the Certificate Guaranty
Insurance Policy (the “Notice”) and submit such Notice in accordance with the
Certificate Guaranty Insurance Policy to the Certificate Insurer no later than
12:00 P.M., New York City time, on the Business Day immediately preceding each
Distribution Date, as a claim for an Insured Amount (provided that the Trustee
shall submit such notice on the second Business Day immediately preceding such
Distribution Date if it is able to do so) in an amount equal to such Deficiency
Amount.
(b) The
Trustee shall establish and maintain the Insurance Account on behalf of the
Holders of the Class A-1W Certificates. Upon receipt of an Insured Amount from
the Certificate Insurer on behalf of the Class A-1W Certificateholders, the
Trustee shall deposit such Insured Amount in the Insurance Account. All amounts
on deposit in the Insurance Account shall remain uninvested. On each
Distribution Date, the Trustee shall transfer any Insured Amount then on deposit
in the Insurance Account to the Certificate Account. The Trustee shall
distribute on each Distribution Date the Deficiency Amount for such Distribution
Date from the Certificate Account, together with the distributions due to the
Class A-1W Certificateholders on such Distribution Date, as follows: (i) the
portion of any such Deficiency Amount related to the first and second sentences
of the definition of Deficiency Amount shall be distributed among the related
Class A-1W Certificateholders on a pro rata basis in accordance with their
respective shortfalls or allocations of Realized Losses, as applicable; and
(ii)
the portion of any such Deficiency Amount related to the third sentence of
the
definition of Deficiency Amount shall be distributed to the related Class A-1W
Certificateholders in accordance with Section 9.01(a).
(c) The
Trustee shall (i) receive as attorney-in-fact of each Class A-1W
Certificateholder any Insured Amount from the Certificate Insurer and (ii)
distribute such Insured Amount to such Class A-1W Certificateholders as set
forth in subsection (b) above. Insured Amounts disbursed by the Trustee from
proceeds of the Certificate Guaranty Insurance Policy shall not be considered
payment by the Trust Fund with respect to the Class A-1W Certificates, nor
shall
such disbursement of such Insured Amounts discharge the obligations of the
Trust
Fund with respect to the amounts thereof, and the Certificate Insurer shall
become owner of such amounts to the extent covered by such Insured Amounts
as
the deemed assignee of such Class A-1W Certificateholders. The Trustee hereby
agrees on behalf of each Class A-1W Certificateholder (and each Class A-1W
Certificateholder, by its acceptance of its Class A-1W Certificates, hereby
agrees) for the benefit of the Certificate Insurer that the Trustee shall
recognize that to the extent the Certificate Insurer pays Insured Amounts,
either directly or indirectly (as by paying through the Trustee), to the Class
A-1W Certificateholders, the Certificate Insurer will be entitled to be
subrogated to the rights of the Class A-1W Certificateholders to the extent
of
such payments.
125
ARTICLE
V
THE
CERTIFICATES
Section
5.01. The
Certificates.
(a) The
Certificates will be substantially in the respective forms annexed hereto as
Exhibits A and B-1 through B-4. The Certificates shall be issuable in registered
form, in the minimum dollar denominations, integral dollar multiples in excess
thereof (except that one Certificate of each Class may be issued in a different
amount which must be in excess of the applicable minimum dollar denomination)
and aggregate dollar denominations as set forth in the following
table:
126
|
CLASS
|
MINIMUM
DENOMINATION
|
INTEGRAL
MULTIPLE IN EXCESS OF MINIMUM
|
INITIAL
CERTIFICATE PRINCIPAL BALANCE OR NOTIONAL AMOUNT
|
|||||||
|
A-1
|
$
|
$1.00
|
$
|
|||||||
|
A-1M
|
$
|
$1.00
|
$
|
|||||||
|
A-1W
|
$
|
$1.00
|
$
|
|||||||
|
A-2A
|
$
|
$1.00
|
$
|
|||||||
|
A-2B
|
$
|
$1.00
|
$
|
|||||||
|
A-2C
|
$
|
$1.00
|
$
|
|||||||
|
A-2D
|
$
|
$1.00
|
$
|
|||||||
|
M-1
|
$
|
$1.00
|
$
|
|||||||
|
M-2
|
$
|
$1.00
|
$
|
|||||||
|
M-3
|
$
|
$1.00
|
$
|
|||||||
|
M-4
|
$
|
$1.00
|
$
|
|||||||
|
M-5
|
$
|
$1.00
|
$
|
|||||||
|
M-6
|
$
|
$1.00
|
$
|
|||||||
|
M-7
|
$
|
$1.00
|
$
|
|||||||
|
M-8
|
$
|
$1.00
|
$
|
|||||||
|
B
|
$
|
$1.00
|
$
|
|||||||
|
C
|
$
|
1.00
|
$
|
1.00
|
$
|
(1)
|
|
|||
|
P
|
$
|
100
|
N/A
|
$
|
100.00
|
|||||
|
R-1
|
100
|
%
|
N/A
|
N/A
|
||||||
|
R-2
|
100
|
%
|
N/A
|
N/A
|
||||||
|
R-3
|
100
|
%
|
N/A
|
N/A
|
||||||
|
(1)
This
is a Notional Amount.
|
|
|
|
127
Upon
original issue, the Certificates shall, upon the written request of the
Depositor executed by an officer of the Depositor, be executed and delivered
by
the Trustee, authenticated by the Trustee and delivered to or upon the order
of
the Depositor upon receipt by the Trustee of the documents specified in Section
2.01. The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee in its capacity as trustee hereunder by a Responsible
Officer. Certificates bearing the manual or facsimile signatures of individuals
who were at the time they signed the proper officers of the Trustee shall bind
the Trustee, 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 for herein executed by the
Trustee by manual signature, and such certificate upon any Certificate shall
be
conclusive evidence, and the only evidence, that such Certificate has been
duly
authenticated and delivered hereunder. All Certificates issued on the Closing
Date shall be dated the Closing Date and any Certificates delivered thereafter
shall be dated the date of their authentication.
(b) The
Offered Certificates shall initially be issued as one or more Certificates
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 Trustee
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 each of such
Book-Entry Certificates through the book-entry facilities of the Depository
and,
except as provided below, shall not be entitled to 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 transfer the Ownership Interests only 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
Trustee shall not be required to monitor, determine or inquire as to compliance
with the transfer restrictions with respect to the Book-Entry Certificates,
and
the Trustee shall have no liability for transfers of Ownership Interests in
the
Book Entry Certificates made through the book-entry facilities of the Depositary
or between or among Depositary Participants or Certificate Owners, made in
violation of the applicable restrictions.
The
Trustee, the Master Servicer and the Depositor may for all purposes (including
the making of payments due on the respective Classes of Book-Entry Certificates)
deal with the Depository as the authorized representative of the Certificate
Owners with respect to the respective Classes of Book-Entry Certificates for
the
purposes of exercising the rights of Certificateholders hereunder. The rights
of
Certificate Owners with respect to the respective Classes of Book-Entry
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 any Class of Book-Entry Certificates
with
respect to any particular matter shall not be deemed inconsistent if they are
made with respect to different Certificate Owners. The Trustee 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.
128
If
(i)(A)
the Depositor advises the Trustee 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 or (ii) the Depositor
at
its option advises the Trustee in writing that it elects to terminate the
book-entry system through the Depository, the Trustee 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. Upon surrender to the Trustee of the Book-Entry
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Trustee shall, at the expense
of the Depositor, issue the Definitive Certificates. Neither the Depositor,
the
Master Servicer nor the Trustee shall be liable for any actions taken by the
Depository or its nominee, including, without limitation, any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates
the
Trustee and the Master Servicer shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(c) Each
Certificate is intended to be a “security” governed by Article 8 of the Uniform
Commercial Code as in effect in the State of New York and any other applicable
jurisdiction, to the extent that any of such laws may be
applicable.
Section
5.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Trustee shall maintain a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates
as
herein provided.
(b) Except
as
provided in Section 5.02(c), no transfer, sale, pledge or other disposition
of a
Class P Certificate, Class C Certificate or a Class R Certificate shall be
made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the “Act”),
and any applicable state securities laws or is made in accordance with said
Act
and laws. In the event that a transfer of a Class P Certificate, Class C
Certificate or Class R Certificate is to be made under this Section 5.02(b),
(i)
the Trustee shall require an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee that such transfer shall be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from said Act and laws or is being made pursuant to said Act and laws, which
Opinion of Counsel shall not be an expense of the Trustee, the Depositor or
the
Master Servicer, provided that such Opinion of Counsel will not be required
in
connection with the initial transfer of any such Certificate by the Depositor
or
any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee
shall require the transferee to execute a representation letter, substantially
in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor
to execute a representation letter, substantially in the form of Exhibit G-2
hereto, each acceptable to and in form and substance satisfactory to the Trustee
certifying to the Depositor and the Trustee the facts surrounding such transfer,
which representation letters shall not be an expense of the Trustee, the
Depositor or the Master Servicer; provided,
however,
that
such representation letters will not be required in connection with any transfer
of any such Certificate by the Depositor to an affiliate of the Depositor and
the Trustee shall be entitled to conclusively rely upon a representation (which,
upon the request of the Trustee, shall be a written representation) from the
Depositor of the status of such transferee as an affiliate of the Depositor.
Any
such Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Depositor and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made
in
accordance with such applicable federal and state laws.
129
(c) Notwithstanding
the requirements of Section 5.02(b), transfers of Class P Certificates, Class
C
Certificates and Class R Certificates may be made in accordance with this
Section 5.02(c) if the prospective transferee of a Certificate provides the
Trustee and the Depositor with an investment letter substantially in the form
of
Exhibit G-3 attached hereto, which investment letter shall not be an expense
of
the Trustee, the Depositor or the Master Servicer, and which investment letter
states that, among other things, such transferee is a “qualified institutional
buyer” as defined under Rule 144A. Such transfers shall be deemed to have
complied with the requirements of Section 5.02(b) hereof; provided,
however,
that no
Transfer of any of the Class P Certificates, Class C Certificates or Class
R
Certificates may be made pursuant to this Section 5.02(c) by the Depositor.
Any
such Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Depositor and the Master Servicer against
any liability that may result if the transfer is not so exempt or is not made
in
accordance with such applicable federal and state laws.
The
Trustee shall require an Opinion of Counsel, on which the Trustee, Depositor
and
Master Servicer may rely, from a prospective transferee prior to the transfer
of
any Class P Certificate, Class C Certificate or Class R Certificate to any
employee benefit plan or other retirement arrangement, including individual
retirement accounts and Xxxxx plans, that is subject to the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Code
(any of the foregoing, a “Plan”), to a trustee or other Person acting on behalf
of any Plan, or to any other person who is using “plan assets” of any Plan to
effect such acquisition (including any insurance company using funds in its
general or separate accounts that may constitute “plan assets”). Such Opinion of
Counsel must establish to the satisfaction of the Trustee that such transfer
is
permissible under applicable law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA and Section 4975 of the Code, and will
not subject the Trustee, the Master Servicer or the Depositor to any obligation
in addition to those undertaken in this Agreement. Neither the Depositor, the
Master Servicer nor the Trustee will be required to obtain such Opinion of
Counsel on behalf of any prospective transferee.
Prior
to
the termination of the Supplemental Interest Trust, each beneficial owner of
an
Offered Certificate or any interest therein, shall be deemed to have
represented, by virtue of its acquisition or holding of the Offered Certificate,
or interest therein, that either (i) it is not a Plan or (ii) (A) it is an
accredited investor within the meaning of the Exemption and (B) the acquisition
and holding of such Certificate and the separate right to receive payments
from
the Supplemental Interest Trust are eligible for the exemptive relief available
under one of Prohibited Transaction Class Exemption (“PTCE”) 84-14, 91-38,
95-60, 90-1 or 96-23.
130
Each
beneficial owner of a Subordinate Certificate or any interest therein which
is
acquired subsequent to the termination of the Supplemental Interest Trust shall
be deemed to have represented, by virtue of its acquisition or holding of that
certificate or interest therein, that either (i) it is not a Plan or a trustee
or other Person acting on behalf of a Plan or using “plan assets” of a Plan to
effect such acquisition (including any insurance company using funds in its
general or separate accounts that may constitute “plan assets”), (ii) it has
acquired and is holding such certificate in reliance on Prohibited Transaction
Exemption 2002-41 (the “Exemption”), and that it understands that there are
certain conditions to the availability of the Exemption, including that the
certificate must be rated, at the time of purchase, not lower than “BBB-” (or
its equivalent) by S&P, Fitch Ratings, Inc. or Xxxxx’x, and the certificate
is so rated or (iii) (1) it is an insurance company, (2) 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 (3) the conditions in Sections I and III of
PTCE 95-60 have been satisfied.
(d)
[Reserved]
(e) (i)
Each
Person who has or who acquires any Ownership Interest in a Class R Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
authorized the Trustee or its designee under clause (iii)(A) below to deliver
payments to a Person other than such Person and to negotiate the terms of any
mandatory sale under clause (iii)(B) below and to execute all instruments of
transfer and to do all other things necessary in connection with any such sale.
The rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Class R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Class
R
Certificate, the Trustee shall require delivery to it, and shall not register
the Transfer of any Class R Certificate until its receipt of (I) an affidavit
and agreement (a “Transfer Affidavit and Agreement” in the form attached hereto
as Exhibit G-5) from the proposed Transferee, in form and substance satisfactory
to the Trustee representing and warranting, among other things, that it is
a
Permitted Transferee, 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, that for
so
long as it retains its Ownership Interest in a Class R Certificate, it will
endeavor to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02 and agrees to be bound by them, and (II) a
certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing
to transfer the Class R Certificate, in form and substance satisfactory to
the
Trustee representing and warranting, among other things, that no purpose of
the
proposed Transfer is to impede the assessment or collection of tax.
131
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if a Responsible Officer of the Trustee assigned to
this
transaction has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Class R Certificate to
such proposed Transferee shall be effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Class R Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest in a
Class R Certificate and (y) not to transfer its Ownership Interest unless it
provides a certificate to the Trustee in the form attached hereto as Exhibit
G-4.
(E) Each
Person holding or acquiring an Ownership Interest in a Class R Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the Trustee
written notice that it is a “pass-through interest holder” within the meaning of
Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Class R Certificate, if it is “a
pass-through interest holder”, or is holding an Ownership Interest in a Class R
Certificate on behalf of a “pass-through interest holder.”
(i) The
Trustee will register the Transfer of any Class R Certificate only if it shall
have received the Transfer Affidavit and Agreement in the form attached hereto
as Exhibit G-5, a certificate of the Holder requesting such transfer in the
form
attached hereto as Exhibit G-4 and all of such other documents as shall have
been reasonably required by the Trustee as a condition to such registration.
Transfers of the Class R Certificates other than to Permitted Transferees are
prohibited.
(ii)
(A) If
any Person other than a Permitted Transferee shall become a Holder of a Class
R
Certificate, then the last preceding Permitted Transferee shall be restored,
to
the extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Class R
Certificate. If a Non-United States Person shall become a Holder of a Class
R
Certificate, then the last preceding Permitted Transferee shall be restored,
to
the extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Class R
Certificate. If a transfer of a Class R Certificate is disregarded pursuant
to
the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof retroactive
to
the date of registration of such transfer of such Class R Certificate. The
prior
Holder shall be entitled to recover from any purported Holder of a Class R
Certificate that was in fact not a Permitted Transferee under this Section
5.05(b) at the time it became a Holder all payments made on such Class R
Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall
be deemed for all purposes to have consented to the provisions of this clause
(b) and to any amendment of this Agreement deemed necessary (whether as a result
of new legislation or otherwise) by counsel of the Depositor to ensure that
the
Class R Certificates are not transferred to any Person who is not a Permitted
Transferee and that any transfer of such Class R Certificates will not cause
the
imposition of a tax upon the Trust or cause any such REMIC to fail to qualify
as
a REMIC. The Trustee 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 5.02 or for making any payments due on such Certificate to
the
Holder thereof or for taking any other action with respect to such Holder under
the provisions of this Agreement.
132
(B) If
any purported Transferee shall become a Holder of a Class R Certificate in
violation of the restrictions in this Section 5.02 and to the extent that the
retroactive restoration of the rights of the Holder of such Class R Certificate
as described in clause (E)(ii)(A) above shall be invalid, illegal or
unenforceable, then the Trustee shall have the right, without notice to the
Holder or any prior Holder of such Class R Certificate, to sell such Class
R
Certificate to a purchaser selected by the Trustee on such terms as the Trustee
may choose. Such purported Transferee shall promptly endorse and deliver each
Class R Certificate in accordance with the instructions of the Trustee. Such
purchaser may be the Trustee itself. The proceeds of such sale, net of the
commissions (which may include commissions payable to the Trustee), expenses
and
taxes due, if any, will be remitted by the Trustee to such purported Transferee.
The terms and conditions of any sale under this clause (E)(ii)(B) shall be
determined in the sole discretion of the Trustee, and the Trustee 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.
(iii) The
Trustee shall make available to the Internal Revenue Service and those Persons
specified by the REMIC Provisions, all information necessary to compute any
tax
imposed (A) as a result of the transfer of an ownership interest in a Class
R
Certificate to any Person who is a Disqualified Organization, including the
information regarding “excess inclusions” of such Class R Certificates required
to be provided to the Internal Revenue Service and certain Persons as described
in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B)
as a
result of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in Section
1381
of the Code that holds an Ownership Interest in a Class R Certificate having
as
among its record Holders at any time any Person who is a Disqualified
Organization. The Trustee may charge and shall be entitled to reasonable
compensation for providing such information as may be required from those
Persons which may have had a tax imposed upon them as specified in clauses
(A)
and (B) of this paragraph for providing such information.
(F) Subject
to the preceding paragraphs, upon surrender for registration of transfer of
any
Certificate at the office of the Trustee maintained for such purpose, the
Trustee shall execute and the Trustee shall 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. Every Certificate
surrendered for transfer shall be accompanied by notification of the account
of
the designated transferee or transferees for the purpose of receiving
distributions pursuant to Section 4.01 by wire transfer, if any such transferee
desires and is eligible for distribution by wire transfer.
133
(G) At
the option of the Certificateholders, Certificates may be exchanged for other
Certificates of authorized denominations of the same Class of a like aggregate
Percentage Interest, upon surrender of the Certificates to be exchanged at
the
office of the Trustee. Whenever any Certificates are so surrendered for exchange
the Trustee 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
Trustee) be duly endorsed by, or be accompanied by a written instrument of
transfer in the form satisfactory to the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing. In addition, with respect
to
each Class R Certificate, the Holder thereof may exchange, in the manner
described above, such Class R Certificate for three separate Certificates,
each
representing such Holder’s respective Percentage Interest in the Class R-1
Interest, the Class R-2 Interest and the Class R-3 Interest, respectively,
in
each case that was evidenced by the Class R Certificate being
exchanged.
(H) No
service charge shall be made to the Certificateholders for any transfer or
exchange of Certificates, but the Trustee 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.
(I) All
Certificates surrendered for transfer and exchange shall be canceled and
retained by the Trustee in accordance with the Trustee’s standard
procedures.
Section
5.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Trustee and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee such security or
indemnity as may be required by it to save it harmless, then, in the absence
of
notice to the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee 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 Percentage Interest. Upon the issuance of
any
new Certificate under this Section, the Trustee 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
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership
in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section
5.04. Persons
Deemed Owners.
The
Depositor, the Master Servicer, the Trustee 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
4.01 and for all other purposes whatsoever, and neither the Depositor, the
Master Servicer, the Trustee nor any agent of any of them shall be affected
by
notice to the contrary.
134
Section
5.05. Rule
144A Information.
For
so
long as any Class P Certificates, Class C Certificates and Class R Certificates
are outstanding and are “restricted securities” within the meaning of Rule
144(a)(3) of the Securities Act, (1) the Depositor will provide or cause to
be
provided to any Holder of such Certificates and any prospective purchaser
thereof designated by such a Holder, upon the request of such Holder or
prospective purchaser, the information required to be provided to such Holder
or
prospective purchaser by Rule 144A(d)(4) under the Securities Act; and (2)
the
Depositor shall update such information from time to time in order to prevent
such information from becoming false and misleading and will take such other
actions as are necessary to ensure that the safe harbor exemption from the
registration requirements of the Securities Act under Rule 144A is and will
be
available for resales of such Certificates conducted in accordance with Rule
144A. The Master Servicer shall cooperate with the Depositor and furnish the
Depositor such information in the Master Servicer’s possession as the Depositor
may reasonably request.
ARTICLE
VI
THE
DEPOSITOR AND THE MASTER SERVICER
Section
6.01. 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 upon and undertaken
by the Depositor and the Master Servicer herein. Only the Master Servicer,
any
successor Master Servicer or the Trustee acting as Master Servicer shall be
liable with respect to the servicing of the Mortgage Loans and the REO Property
for actions taken by any such Person in contravention of the Master Servicer’s
duties hereunder.
Section
6.02. Merger,
Consolidation or Conversion of the Depositor or the Master
Servicer.
The
Depositor and the Master Servicer each will keep in full effect its existence,
rights and franchises as a corporation under the laws of the state of its
incorporation, and each will 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 Mortgage Loans
and to perform its respective duties under this Agreement.
Any
Person into which the Depositor or the Master Servicer may be merged,
consolidated or converted, or any corporation 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 successor or surviving Person
to
the Master Servicer shall be qualified to sell mortgage loans to and service
mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac.
135
Section
6.03. Limitation
on Liability of the Depositor, the Master Servicer and Others.
Neither
the Depositor, the Master Servicer nor any of the directors, officers, employees
or agents of the Depositor or the Master Servicer 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 for errors in judgment; provided, however, that this provision
shall not protect the Depositor or the Master Servicer (but this provision
shall
protect the above described persons) against any breach of warranties or
representations made herein, or against any specific liability imposed on the
Master Servicer pursuant to Section 3.01 or any other Section hereof; and
provided further that this provision shall not protect the Depositor, the Master
Servicer or any such person, 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. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer 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. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer 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 or the Certificates (including reasonable legal
fees
and disbursements of counsel), other than (a) any loss, liability or expense
related to Master Servicer’s servicing obligations with respect to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) or related to the
Master Servicer’s obligations under Section 3.01, or (b) 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. Neither the Depositor nor the Master Servicer
shall be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its respective duties under this Agreement and which
in its opinion may involve it in any expense or liability; provided,
however,
that
the Depositor or the Master Servicer may in its sole 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 action or
liability related to the Master Servicer’s obligations under Section 3.01) shall
be expenses, costs and liabilities of the Trust Fund, and the Depositor and
the
Master Servicer shall be entitled to be reimbursed therefor from the Certificate
Account as provided in Section 3.11, any such right of reimbursement being
prior
to the rights of Certificateholders to receive any amount in the Certificate
Account.
136
Section
6.04. Limitation
on Resignation of the Master Servicer.
The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except (a) upon appointment of a successor servicer reasonably acceptable
to the Trustee and the Certificate Insurer upon receipt by the Trustee and
the
Certificate Insurer of a letter from each Rating Agency (obtained by the Master
Servicer and at its expense) that such a resignation and appointment will not,
in and of itself, result in a downgrading of the Certificates without taking
the
Certificate Guaranty Insurance Policy into account or (b) upon determination
that its duties hereunder are no longer permissible under applicable law. Any
such determination permitting the resignation of the Master Servicer shall
be
evidenced by an Opinion of Counsel (at the expense of the resigning Master
Servicer) to such effect delivered to the Trustee and the Certificate Insurer.
No such resignation shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer’s responsibilities, duties,
liabilities and obligations hereunder.
Section
6.05. Sale
and Assignment of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in their entirety as Master Servicer under this Agreement;
provided,
however,
that:
(i) the purchaser or transferee accepting such assignment and delegation (a)
shall be a Person which shall be qualified to service mortgage loans for Xxxxxx
Xxx or Xxxxxxx Mac; (b) shall, in the case of successor master servicers only,
have a net worth of not less than $10,000,000 (unless otherwise approved by
each
Rating Agency pursuant to clause (ii) below); (c) shall be reasonably
satisfactory to the Trustee and the Certificate Insurer (as evidenced in a
writing signed by the Trustee and the Certificate Insurer) as having a
comparable servicing ability to that of the Master Servicer on the Closing
Date;
(d) shall execute and deliver to the Trustee and the Certificate Insurer an
agreement, in form and substance reasonably satisfactory to the Trustee and
the
Certificate Insurer, 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 and 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 or withdrawn as a result of such assignment, sale and
delegation without taking the Certificate Guaranty Insurance Policy into
account, as evidenced by a letter to such effect obtained by the Master Servicer
at its expense and delivered to 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 Counsel (at the expense of the Master
Servicer), 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.
137
ARTICLE
VII
DEFAULT
Section
7.01. Events
of Default.
“Event
of
Default”, wherever used herein, means any one of the following
events:
(i) any
failure by the Master Servicer to deposit into the Certificate Account on each
Certificate Account Deposit Date the amounts required to be deposited therein
(other than an Advance) under the terms of this Agreement which continues
unremedied for two (2) Business Days after such amount was required to be
remitted; or
(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 the Certificates or in this Agreement (including
any breach of the Master Servicer’s representations and warranties pursuant to
Section 2.03(a) which materially and adversely affects the interests of the
Certificateholders) which continues unremedied for a period of 60 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 Trustee, the Certificate
Insurer or to the Master Servicer, the Certificate Insurer and the Trustee
by
the Holders of Certificates entitled to at least 25% of the Voting Rights;
or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
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, marshaling of assets and
liabilities or similar proceedings, 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
60
consecutive days; or
(iv) the
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Master Servicer 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 or otherwise
voluntarily commence a case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar statute, make an assignment for
the
benefit of its creditors, or voluntarily suspend payment of its obligations;
or
138
(vi) the
Master Servicer shall fail to deposit in the Certificate Account on any
Certificate Account Deposit Date an amount equal to any required Advance which
continues unremedied for the earlier of (a) a period of two (2) Business Days
or
(b) the Business Day immediately preceding the Distribution Date.
If
an
Event of Default described in clauses (i) - (v) of this Section shall occur,
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Trustee, the Certificate Insurer (unless an Insurer
Default is continuing) or the Holders of Certificates entitled to at least
51%
of the Voting Rights, by notice in writing to the Master Servicer and the Swap
Provider (and to the Trustee if given by such Holders of Certificates), with
a
copy to the Rating Agencies, may terminate all of the rights and obligations
(but not the liabilities) of the Master Servicer under this Agreement and in
and
to the Trust Fund, other than its rights as a Certificateholder hereunder;
provided,
however,
that
the successor to the Master Servicer appointed pursuant to Section 7.02 shall
have accepted the duties of Master Servicer effective upon the resignation
or
termination of the Master Servicer. If an Event of Default described in clause
(vi) hereof shall occur, the Trustee shall, by notice to the Master Servicer,
the Certificate Insurer and the Depositor, terminate all of the rights and
obligations of the Master Servicer under this Agreement and in and to the Trust
Fund, other than its rights as a Certificateholder hereunder; provided,
however,
that if
the Trustee determines (in its sole discretion) that the failure by the Master
Servicer to make any required Advance was due to circumstances beyond its
control, and the required Advance was otherwise made, the Trustee shall not
terminate the Master Servicer. On or after the receipt by the Master Servicer
of
such notice, all authority and power of the Master Servicer under this
Agreement, whether with respect to the Certificates (other than as a Holder
thereof) or the Mortgage 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 to execute and deliver, on behalf of the
Master Servicer, as attorney-in-fact or otherwise, 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 Mortgage Loans and
related documents, or otherwise at the expense of the Master Servicer. The
Master Servicer agrees to cooperate with (and pay any related costs and expenses
of) the Trustee in effecting the termination of the Master Servicer’s
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee or the successor Master Servicer for administration
by
it of (i) the property and amounts which are then or should be part of the
Trust
Fund or which thereafter become part of the Trust Fund; (ii) originals or copies
of all documents of the Master Servicer reasonably requested by the Trustee
to
enable it to assume the Master Servicer’s duties thereunder; (iii) the rights
and obligations of the Master Servicer under the Sub-Servicing Agreements with
respect to the Mortgage Loans; and (iv) all cash amounts which shall at the
time
be deposited by the Master Servicer or should have been deposited to the
Custodial or the Certificate Account or thereafter be received with respect
to
the Mortgage Loans. To the extent such costs and expenses are not paid by the
Master Servicer, such amounts shall be reimbursed by the Trust Fund subject
to
the provisions of Section 9.05 of this Agreement. The Trustee shall not be
deemed to have breached any obligation hereunder as a result of a failure to
make or delay in making any distribution as and when required hereunder caused
by the failure of the Master Servicer to remit any amounts received by it or
to
deliver any documents held by it with respect to the Mortgage Loans. For
purposes of this Section 7.01, the Trustee shall not be deemed to have knowledge
of an Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless notice of any event which is in fact such an Event
of Default is received by the Trustee as provided in Section 11.05 and such
notice references the Certificates, the Trust Fund or this
Agreement.
139
Section
7.02. Trustee
to Act; Appointment of Successor.
Within
90
days of the time the Master Servicer receives a notice of termination pursuant
to Section 7.01(i) - (v), the Trustee or its appointed agent shall be the
successor in all respects to the Master Servicer in its capacity as Master
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject thereafter to all the responsibilities, duties
and
liabilities relating thereto placed on the Master Servicer including the
obligation to make Advances which have been or will be required to be made
(except for the responsibilities, duties and liabilities contained in Section
2.03 and its obligations to deposit amounts in respect of losses pursuant to
Section 3.12 and 4.01(h)) by the terms and provisions hereof; 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 4.03
shall not be considered a default by the Trustee hereunder. As compensation
therefor, the Trustee shall be entitled to all funds relating to the Mortgage
Loans which the Master Servicer would have been entitled to charge to the
Custodial Account and the Certificate Account if the Master Servicer had
continued to act hereunder. If the Trustee has become the successor to the
Master Servicer in accordance with Section 6.04 or Section 7.02, then
notwithstanding the above, if the Trustee shall be unwilling to so act, or
shall
be unable to so act, the Trustee may appoint, or petition a court of competent
jurisdiction or appoint, any established housing and home finance institution,
which is also a Xxxxxx Mae- or Xxxxxxx Mac-approved mortgage servicing
institution, having a net worth of not less than $10,000,000 as the successor
to
the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder.
Pending appointment of a successor to the Master Servicer hereunder, the Trustee
shall act in such capacity as herein above provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and
such
successor shall agree; provided, however, that no such compensation shall be
in
excess of that permitted the Master Servicer hereunder. Each of the Sponsor,
the
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. In no event
shall the successor Master Servicer be liable for the acts or omissions of
the
predecessor Master Servicer.
In
connection with the termination or resignation of the Master Servicer hereunder,
either (i) the successor Master Servicer, including the Trustee if the Trustee
is acting as successor Master Servicer, shall represent and warrant that it
is a
member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, in which case the
predecessor Master Servicer shall cooperate with the successor Master Servicer
in causing MERS to revise its records to reflect the transfer of servicing
to
the successor Master Servicer as necessary under MERS’ rules and regulations, or
(ii) the predecessor Master Servicer shall cooperate with the successor Master
Servicer in causing MERS to execute and deliver an assignment of Mortgage in
recordable form to transfer the Mortgage from MERS to the Trustee and to execute
and deliver such other notices, documents and other instruments as may be
necessary or desirable to effect a transfer of such Mortgage Loan or servicing
of such Mortgage Loan on the MERS® System to the successor Master Servicer. The
predecessor Master Servicer shall file or cause to be filed any such assignment
in the appropriate recording office. The predecessor Master Servicer shall
bear
any and all fees of MERS, costs of preparing any assignments of Mortgage, and
fees and costs of filing any assignments of Mortgage that may be required under
this Section 7.02. The successor Master Servicer shall cause such assignment
to
be delivered to the Custodian promptly upon receipt of the original with
evidence of recording thereon or a copy certified by the public recording office
in which such assignment was recorded.
140
Any
successor, including the Trustee, to the Master Servicer shall maintain in
force
during its term as master servicer hereunder policies and fidelity bonds to
the
same extent as the Master Servicer is so required pursuant to Section
3.18.
Notwithstanding
anything else herein to the contrary, in no event shall the Trustee be liable
for any Master Servicing Fee or Sub-Servicing Fee or for any differential in
the
amount of the Master Servicing Fee or Sub-Servicing Fee paid hereunder and the
amount necessary to induce any successor Master Servicer or Sub-Servicer, as
applicable, to act as successor Master Servicer or Sub-Servicer, as applicable,
under this Agreement and the transactions set forth or provided for
herein.
Section
7.03. Notification
to Certificateholders.
(a) Upon
any
such termination or appointment of a successor to the Master Servicer, the
Trustee shall give prompt notice thereof to Certificateholders, the Certificate
Insurer and to the Rating Agencies.
(b) Within
60
days after the occurrence of any Event of Default, the Trustee shall transmit
by
mail to all Holders of Certificates and the Swap Provider notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
Section
7.04. Waiver
of Events of Default.
The
Holders representing at least 51% of the Voting Rights of Certificates affected
by a default or Event of Default hereunder, may waive such default or Event
of
Default (other than an Event of Default set forth in Section 7.01(vi));
provided,
however,
that
(a) a default or Event of Default under clause (i) of Section 7.01 may be waived
only by all of the Holders of Certificates affected by such default or Event
of
Default and (b) no waiver pursuant to this Section 7.04 shall affect the Holders
of Certificates in the manner set forth in the second paragraph of Section
11.01
or materially adversely affect any non-consenting Certificateholder. Upon any
such waiver of a default or Event of Default by the Holders representing the
requisite percentage of Voting Rights of Certificates affected by such default
or Event of Default, such default or 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 Event of Default
or
impair any right consequent thereon except to the extent expressly so waived.
The Master Servicer shall give notice of any such waiver to the Rating
Agencies.
Section
7.05. List
of Certificateholders.
Upon
written request of three or more Certificateholders of record, for purposes
of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Trustee will afford such Certificateholders access during
business hours to the most recent list of Certificateholders held by the
Trustee.
141
ARTICLE
VIII
CONCERNING
THE TRUSTEE
Section
8.01. Duties
of Trustee.
The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiver of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Default occurs, is continuing and has not been waived,
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 their exercise as a
prudent man would exercise or use under the circumstances in the conduct of
his
own affairs. Any permissive right of the Trustee enumerated in this Agreement
shall not be construed as a duty.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them in accordance with the requirements of this
Agreement. If any such instrument is found not to conform to the requirements
of
this Agreement in a material manner, the Trustee shall take such action as
it
deems appropriate to have the instrument corrected, and if the instrument is
not
corrected to the Trustee’s satisfaction, the Trustee will provide notice thereof
to the Certificateholders. Notwithstanding the foregoing, the Trustee shall
not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by
the
Master Servicer hereunder or any Opinion of Counsel required
hereunder.
The
Trustee shall prepare and file or cause to be filed on behalf of the Trust
Fund
any tax return that is required with respect to REMIC 1 and REMIC 2 pursuant
to
applicable federal, state or local tax laws.
The
Trustee covenants and agrees that it shall perform its obligations hereunder
in
a manner so as to maintain the status of REMIC 1 and REMIC 2 under the REMIC
Provisions and to prevent the imposition of any federal, state or local income,
prohibited transaction, contribution or other tax on any of REMIC 1, REMIC
2 or
REMIC 3 to the extent that maintaining such status and avoiding such taxes
are
within the control of the Trustee and are reasonably within the scope of its
duties under this Agreement.
142
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct; provided, however, that:
(i) Prior
to
the occurrence of an Event of Default, and after the curing or waiver of all
such Events of Default which may have occurred, the duties and obligations
of
the Trustee shall be determined solely by the express provisions of this
Agreement, the Trustee shall not 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 and, in the absence of bad faith on the part of the Trustee, the Trustee
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 and conforming to the requirements of this Agreement;
(ii) The
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it shall
be
proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) The
Trustee shall not 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 entitled to at least 25% of the Voting Rights relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement.
Section
8.02. Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 8.01:
(a) The
Trustee may conclusively rely upon and shall be fully protected in acting or
refraining from acting in reliance 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;
(b) The
Trustee may consult with counsel and 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
therewith;
143
(c) The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Agreement, other than its obligation to give notice
pursuant to 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 or the Certificate Insurer shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby and the Certificate Insurer
has given its consent; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default of which
a
Responsible Officer of the Trustee’s corporate trust department has actual
knowledge (which has not been waived or cured), 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 man would exercise or use under the
circumstances in the conduct of his own affairs;
(d) The
Trustee shall not 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;
(e) Prior
to
the occurrence of an Event of Default hereunder and after the curing or waiver
of all Events of Default which may have occurred, the Trustee shall not 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 Certificate Insurer or the Holders of Certificates entitled to
at
least 25% of the Voting Rights with the written consent of the Certificate
Insurer; provided, however, that if the payment within a reasonable time to
the
Trustee 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, reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement reasonable expense of every such examination shall be paid by the
Certificateholders or the Certificate Insurer requesting the
investigation;
(f) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, nominees, custodians or
attorneys appointed with due care, and shall not be responsible for any willful
misconduct or negligence on the part of any agent, attorney, custodian or
nominee so appointed;
(g) The
Trustee shall not be required to give any bond or surety with respect to the
execution of the trust created hereby or the powers granted hereunder;
and
(h) Whenever
in the administration of the provisions of this Agreement the Trustee shall
deem
it necessary or desirable that a matter be proved or established prior to taking
or suffering any action to be taken hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of gross negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by a certificate signed and delivered
to the Trustee and such certificate, in the absence of gross negligence or
bad
faith on the part of the Trustee, shall be full warrant to the Trustee for
any
action taken, suffered or omitted by it under the provisions of this Agreement
upon the faith thereof.
144
The
Trustee shall have no obligation to invest and reinvest any cash held in the
absence of timely and specific written investment direction from the Master
Servicer. In no event shall the Trustee be liable for the selection of
investments or for investment losses incurred thereon. The Trustee shall have
no
liability in respect of losses incurred as a result of the liquidation of any
investment incurred as a result of the liquidation of any investment prior
to
its stated maturity or the failure of the Master Servicer to provide timely
written investment direction.
In
order
to comply with its duties under the U.S. Patriot Act, the Trustee shall obtain
and verify certain information and documentation from other parties hereto,
including, but not limited to, such party’s name, address and other identifying
information.
The
Trustee is hereby directed by the Depositor to execute and deliver the Swap
Administration Agreement (and any amendments or supplements to the Swap
Administration Agreement as may be requested by the Majority Class C
Certificateholder regarding the distributions to be made to it or its designees
thereunder). Amounts payable by the Trustee on any Distribution Date to the
Swap
Administrator shall be paid by the Trustee as provided herein. The Trustee
in
its individual capacity shall have no responsibility for any of the
undertakings, agreements or representations with respect to the Swap Agreement
or the Swap Administration Agreement, including, without limitation, for making
any payments thereunder.
(i) It
is
acknowledged and agreed that the Person serving as Trustee hereunder shall
also
serve as Swap Administrator under the Swap Administration Agreement and act
as
Supplemental Interest Trust Trustee under the Swap Agreement. The Trustee,
the
Swap Administrator and the Supplemental Interest Trust Trustee are hereby
directed by the Depositor to execute and deliver the Swap Administration
Agreement (and any amendments or supplements to the Swap Administration
Agreement) and the Supplemental Interest Trust Trustee is hereby directed to
execute and deliver the Swap Agreement, and to make the representations required
therein. The Swap Administrator shall not have any liability for any failure
or
delay in payments to the Trust Fund which are required under the Swap
Administration Agreement where such failure or delay is due to the failure
or
delay of the Swap Provider in making such payment to the Swap Administrator.
Each of the Swap Administrator, the Trustee and the Supplemental Interest Trust
Trustee shall be entitled to be indemnified and held harmless by the Trust
Fund
from and against any and all losses, claims, expenses or other liabilities
that
arise by reason of or in connection with the performance or observance by each
of the Swap Administrator, the Trustee and the Supplemental Interest Trust
Trustee of its duties or obligations under the Swap Agreement, except to the
extent that the same is due to the Swap Administrator’s, the Trustee’s or the
Supplemental Interest Trust Trustee’s gross negligence, willful misconduct or
fraud. Any Person appointed as successor trustee pursuant to Section 8.09 shall
also be required to serve as successor Swap Administrator and successor
supplemental interest trust trustee under the Swap Agreement and the Swap
Administration Agreement.
145
Section
8.03. Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Trustee, the authentication of the Trustee on the Certificates, the
acknowledgments of the Trustee contained in Article II) shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations or warranties as to the
validity or sufficiency of this Agreement or of the Certificates (other than
the
signature and authentication of the Trustee on the Certificates) or of any
Mortgage Loan or related document, or of MERS or the MERS® System. 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 Mortgage Loans or deposited in or withdrawn from the Custodial Account
by
the Master Servicer.
Section
8.04. Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity (other than as Trustee
hereunder) may become the owner or pledgee of Certificates with the same rights
it would have if it were not Trustee and may otherwise deal with the parties
hereto.
Section
8.05. Trustee’s
Fees.
On
each
Distribution Date, the Trustee shall be entitled to withdraw from the
Certificate Account as compensation hereunder any amounts earned on funds in
the
Certificate Account. Such compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
shall be paid for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder or of the Trustee. Except as otherwise provided in this
Agreement, the Trustee and any director, officer, employee or agent of the
Trustee shall be indemnified and held harmless by the Trust Fund against any
claim, loss, liability, fee or expense incurred in connection with any Event
of
Default, any breach of this Agreement or any claim or legal action (including
any pending or threatened claim or legal action) relating to the acceptance
or
administration of its trusts hereunder or the Trustee’s performance under the
Certificates, other than any claim, loss, liability or expense (i) sustained
in
connection with this Agreement related to the willful misfeasance, bad faith
or
negligence of the Master Servicer in the performance of its duties hereunder
or
(ii) incurred in connection with a breach constituting willful misfeasance,
bad
faith or negligence of the Trustee in the performance of its duties hereunder
or
by reason of reckless disregard of its obligations and duties
hereunder.
146
The
Master Servicer shall indemnify the Trustee and any director, officer, employee
or agent of the Trustee against any such claim or legal action (including any
pending or threatened claim or legal action), loss, liability, fee or expense
that may be sustained in connection with this Agreement related to the willful
misfeasance, bad faith, or negligence in the performance of the Master
Servicer’s duties hereunder.
The
provisions of this Section 8.05 shall survive the resignation or removal of
the
Trustee or the termination of this Agreement.
Section
8.06. Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be a corporation or a national banking
association organized and doing business under the laws of any state or the
United States of America or the District of Columbia, authorized under such
laws
to exercise corporate trust powers, having a combined capital and surplus of
at
least $50,000,000 and subject to supervision or examination by federal or state
authority. In addition, the Trustee shall at all times be acceptable to the
Rating Agency rating the Certificates. If such corporation publishes reports
of
condition 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 shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.07.
The corporation or national banking association serving as Trustee may have
normal banking and trust relationships with the Sponsor and their affiliates
or
the Master Servicer and its affiliates; provided,
however,
that
such corporation cannot be an affiliate of the Master Servicer other than the
Trustee in its role as successor to the Master Servicer.
Section
8.07. Resignation
and Removal of the Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Master Servicer; with a copy to the
Rating Agencies and the Swap Provider; provided,
that
such resignation shall not be effective until a successor trustee is appointed
and accepts appointment in accordance with the following provisions;
provided,
however,
that
the resigning Trustee shall not resign and be discharged from the trusts hereby
created until such time as the Rating Agency rating the Certificates approves
the successor trustee. Upon receiving such notice of resignation, the Master
Servicer shall promptly appoint a successor trustee who meets the eligibility
requirements of Section 8.06 by written instrument, in triplicate, one copy
of
which instrument shall be delivered to each of the resigning Trustee and to
the
successor trustee. If no successor trustee shall have been so appointed and
have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
147
If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 8.06 and shall fail to resign after written request therefor by the
Master Servicer, or if at any time the Trustee shall become incapable of acting,
or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or
of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, the Master Servicer with the
consent of the Certificate Insurer, which consent shall not be unreasonably
withheld, may remove the Trustee and appoint a successor trustee who meets
the
eligibility requirements of Section 8.06 by written instrument, in triplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee.
During
the continuance of an Insurer Default, the Holders of Certificates entitled
to
at least 51% of the Voting Rights, may at any time remove the Trustee and
appoint a successor trustee 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 Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor so
appointed. A copy of such instrument shall be delivered to the
Certificateholders and the Depositor by the Master Servicer.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall not become effective
until acceptance of appointment by the successor trustee as provided in Section
8.08.
Section
8.08. Successor
Trustee.
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Master Servicer and to its predecessor trustee
an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, 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 herein. The
predecessor trustee shall after payment of its outstanding fees and expenses,
promptly deliver to the successor trustee all assets and records of the Trust
Fund held by it hereunder, and the Master Servicer and the predecessor trustee
shall execute and deliver all such instruments and do such other things as
may
reasonably be required for more fully and certainly vesting and confirming
in
the successor trustee all such rights, powers, duties and
obligations.
148
No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such acceptance such successor trustee shall be eligible under
the
provisions of Section 8.06.
Upon
acceptance of appointment by a successor trustee as provided in this Section,
the Master Servicer shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Master Servicer fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Master
Servicer.
Section
8.09. Merger
or Consolidation of Trustee.
Any
state
bank or trust company or corporation or national banking association into which
the Trustee may be merged or converted or with which it may be consolidated
or
any state bank or trust company or national banking association resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any state bank or trust company or corporation or national banking
association succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such state bank or trust company or corporation or national banking
association shall be eligible under the provisions of Section 8.06 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 the Trust Fund or property
securing the same may at the time be located, the Master Servicer and the
Trustee acting jointly 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 the Trust Fund, and to vest in such
Person or Persons, in such capacity, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 8.10, such powers,
duties, obligations, rights and trusts as the Master Servicer and the Trustee
may consider necessary or desirable. If the Master Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment without the
Master Servicer. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
149
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 and required to be conferred or such co-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
(whether as Trustee hereunder or as successor to the 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 the Trust Fund 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 trusts
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.
150
ARTICLE
IX
TERMINATION
Section
9.01. Termination
Upon Repurchase or Liquidation of All Mortgage Loans or upon Purchase of
Certificates.
(a) Subject
to Section 9.03, the respective obligations and responsibilities of the
Depositor, the Master Servicer and the Trustee created hereby (other than the
obligations of the Master Servicer to the Trustee pursuant to Section 8.05
and
of the Master Servicer to provide for and the Trustee to make payments to
Certificateholders as hereafter set forth) shall terminate upon payment to
the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them hereunder following the earlier to occur of (i)
the
repurchase by the Master Servicer or its designee of all Mortgage Loans and
each
REO Property in respect thereof remaining in the Trust Fund at a price equal
to
(a) 100% of the unpaid principal balance of each Mortgage Loan (other than
one
as to which a REO Property was acquired) on the day of repurchase together
with
accrued interest on such unpaid principal balance at the Net Mortgage Rate
to
the first day of the month in which the proceeds of such repurchase are to
be
distributed, plus (b) the appraised value of any REO Property (but not more
than
the unpaid principal balance of the related Mortgage Loan, together with accrued
interest on that balance at the Net Mortgage Rate to the first day of the month
such repurchase price is distributed), less the good faith estimate of the
Master Servicer of liquidation expenses to be incurred in connection with its
disposal thereof, such appraisal to be conducted by an appraiser mutually agreed
upon by the Master Servicer and the Trustee at the expense of the Master
Servicer and plus (c) any Swap Termination Payment payable to the Swap Provider
which remains unpaid or which is due to the exercise of such option and plus
(d)
any unreimbursed amounts owed to the Certificate Insurer under the Certificate
Guaranty Insurance Policy, and (ii) the final payment or other liquidation
(or
any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund (or the disposition of all REO Property in respect thereof);
provided,
however,
that in
no event shall the trust created hereby continue beyond the earlier of (i)
the
Distribution Date occurring in March 2036 and (ii) the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the
late ambassador of the United States to the Court of St. Xxxxx, living on the
date hereof, and provided further,
that
the purchase price set forth above shall be increased as is necessary, as
determined by the Master Servicer, to avoid disqualification of any of REMIC
1,
REMIC 2 or REMIC 3 as a REMIC. In the case of any repurchase by the Master
Servicer pursuant to clause (i), the Master Servicer shall exercise reasonable
efforts to cooperate fully with the Trustee in effecting such repurchase and
the
transfer of the Mortgage Loans and related Mortgage Files and related records
to
the Master Servicer.
151
The
right
of the Master Servicer or its designee to repurchase all Mortgage Loans pursuant
to (i) above shall be conditioned upon the Aggregate Stated Principal Balance
of
such Mortgage Loans at the time of any such repurchase aggregating an amount
equal to or less than 10% of the Cut-off Date Balance of the Mortgage Loans;
provided,
however, that
no
such purchase will be permitted if it would result in a draw on the Certificate
Guaranty Insurance Policy, unless the Certificate Insurer consents in writing
to
such purchase. If such right is exercised, the Master Servicer upon such
repurchase shall provide to the Trustee, notice of such exercise prior to the
Determination Date in the month preceding the month of purchase and the
certification required by Section 3.16.
Written
notice of any termination, specifying the Distribution Date upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to the Certificateholders and the Certificate Insurer mailed
(a) in the event such notice is given in connection with the Master Servicer’s
election to repurchase, not earlier than the 15th day and not later than the
25th day of the month next preceding the month of such final distribution 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 final payment of the Certificates will be made upon presentation
and surrender of Certificates at the office of the Trustee therein designated,
(ii) the amount of any such final payment and (iii) 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 Trustee therein specified. In the event such notice is given in connection
with the Master Servicer or its designee’s election to repurchase, the Master
Servicer or its designee shall deliver to the Trustee for deposit in the
Certificate Account on the Business Day immediately preceding the Distribution
Date specified in such notice an amount equal to the above-described repurchase
price payable out of its own funds. Upon presentation and surrender of the
Certificates by the Certificateholders, the Trustee shall first, pay itself
its
fee for such Distribution Date (as described in Section 8.05 ) and any other
amounts owing to the Trustee under this Agreement, and second, distribute to
the
Certificateholders and the Certificate Insurer (i) the amount otherwise
distributable on such Distribution Date, if not in connection with the Master
Servicer’s election to repurchase, or (ii) if the Master Servicer elected to so
repurchase, an amount determined as follows: with respect to each Regular
Certificate, the outstanding Certificate Principal Balance thereof, plus with
respect to each Regular Certificate (other than the Class P Certificates),
one
month’s interest thereon at the applicable Pass-Through Rate and any Unpaid
Interest Shortfall Amount, plus with respect to each Offered Certificate, any
unpaid Allocated Realized Loss Amount; and with respect to the Class R
Certificates, the Percentage Interest evidenced thereby multiplied by the
difference, if any, between the above described repurchase price and the
aggregate amount to be distributed to the Holders of the Regular Certificates,
subject to the priorities set forth in Section 4.01; and with respect to the
Certificate Insurer, any amounts owed under the Certificate Guaranty Insurance
Policy. Notwithstanding the foregoing, by acceptance of the Class R
Certificates, the Holders of the Class R Certificates agree, in connection
with
any termination hereunder, to assign and transfer any amounts received in
respect of such termination to the Holders of the Class C Certificates and
to
pay any such amounts to the Holders of the Class C Certificates. Upon
certification to the Trustee and the Custodian by a Servicing Officer, following
such final deposit, the Custodian shall promptly release the Mortgage Files
as
directed by the Master Servicer for the remaining Mortgage Loans, and the
Trustee shall execute all assignments, endorsements and other instruments
required by the Master Servicer as being necessary to effectuate such
transfer.
152
In
the
event that all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the time specified in the
above-mentioned notice, the Trustee shall give a second notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice all of the Certificates shall not have been surrendered for
cancellation, the Trustee shall take reasonable steps as directed by the
Depositor in writing, or appoint an agent to take reasonable steps, to contact
the remaining Certificateholders concerning surrender of their Certificates,
and
the cost thereof shall be paid out of the funds and other assets which remain
subject hereto. If within nine months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Class R
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto.
Section
9.02. Termination
of REMIC 2.
REMIC
2
shall be terminated on the earlier of the Final Distribution Date and the date
on which it is deemed to receive the last deemed distributions on the REMIC
1
Regular Interests and the last distribution due on the REMIC 2 Regular Interests
and the Class R Certificates (in respect of the Class R-2 Interest) is
made.
Section
9.03. Additional
Termination Requirements.
(a) In
the
event the Master Servicer repurchases the Mortgage Loans as provided in Section
9.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Master Servicer, at its own expense, obtains
for the Trustee an Opinion of Counsel to the effect that the failure of the
Trust Fund to comply with the requirements of this Section 9.03 will not (i)
result in the imposition on the Trust of taxes on “prohibited transactions,” as
described in Section 860F of the Code, or (ii) cause either REMIC 1, REMIC
2 or
REMIC 3 to fail to qualify as a REMIC at any time that any Certificate is
outstanding:
(i) The
Trustee shall establish a 90-day liquidation period for REMIC 1 and REMIC 2,
as
the case may be, and specify the first day of such period in a statement
attached to the Trust Fund’s final Tax Return pursuant to Treasury regulations
Section 1.860F-1. The Trustee also shall satisfy all of the requirements of
a
qualified liquidation for REMIC 1 and REMIC 2, as the case may be, under Section
860F of the Code and regulations thereunder; and
153
(ii) The
Master Servicer shall notify the Trustee at the commencement of such 90-day
liquidation period and, at or prior to the time of making of the final payment
on the Certificates, the Trustee shall sell or otherwise dispose of all of
the
remaining assets of the Trust Fund in accordance with the terms
hereof.
(b) Each
Holder of a Certificate and the Trustee hereby irrevocably approves and appoints
the Master Servicer as its attorney-in-fact to adopt a plan of complete
liquidation for REMIC 1 and REMIC 2 at the expense of the Trust Fund in
accordance with the terms and conditions of this Agreement.
ARTICLE
X
REMIC
PROVISIONS
Section
10.01. REMIC
Administration.
(a) The
Trustee shall make an election to treat the Trust Fund as three REMICs under
the
Code and, if necessary, under applicable state law. Each such election will
be
made on Form 1066 or other appropriate federal tax or information return
(including Form 8811) 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 elections in respect of the Trust Fund,
(i) the Class R-1 Interest will constitute the sole Class of “residual interest”
in REMIC 1, and (ii) the Class R-2 Interest will constitute the sole Class
of
“residual interest” in REMIC 2, and the Regular Certificates shall be designated
as the “regular interest” in REMIC 2. The Master Servicer and the Trustee shall
not permit the creation of any “interests” (within the meaning of Section 860G
of the Code) in REMIC 1, REMIC 2 or REMIC 3 other than the REMIC 1 Regular
Interests and the Class R-1 Interest (in the case of REMIC 1), and the Regular
Certificates and the Class R-2 Interest (in the case of REMIC 2). The Trustee
will apply for an Employee Identification Number from the IRS via form SS-4
or
any other acceptable method for each of REMIC 1 and REMIC 2.
(b) The
Closing Date is hereby designated as the “startup day” of the Trust Fund within
the meaning of Section 860G(a)(9) of the Code.
154
(c) The
Trustee shall pay out of its own funds, without any right of reimbursement,
any
and all expenses relating to any tax audit of the REMICs (including, but not
limited to, any professional fees or any administrative or judicial proceedings
with respect to the REMICs that involve the Internal Revenue Service or state
tax authorities), other than the expense of obtaining any tax-related Opinion
of
Counsel except as specified herein. The Trustee, as agent for the REMICs’ tax
matters person, shall (i) act on behalf of the REMICs in relation to any tax
matter or controversy involving the Trust Fund 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. By their acceptance
thereof, the Holder of the largest Percentage Interest of the Class R
Certificates hereby agrees to irrevocably appoint the Trustee or an Affiliate
as
its agent to perform all of the duties of the tax matters person for the
REMICs.
(d) The
Trustee shall prepare, sign and file all of the Tax Returns (including Form
8811, which must be filed within 30 days of the Closing Date) in respect of
the
REMICs created hereunder. The expenses of preparing and filing such returns
shall be borne by the Trustee without any right of reimbursement therefor.
The
Master Servicer shall provide on a timely basis to the Trustee or its designee
such information with respect to the assets of the REMICs as is in its
possession and reasonably required by the Trustee to enable it to perform its
obligations under this Article X.
(e) The
Trustee shall perform on behalf of the REMICs all reporting and other tax
compliance duties that are the responsibility of the REMICs 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 Trustee shall provide (i) to any Transferor of a Class R Certificate such
information as is necessary for the application of any tax relating to the
transfer of a Class R Certificate to any Person who is not a Permitted
Transferee, (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 will serve as the
representative of the REMICs. The Master Servicer shall provide on a timely
basis to the Trustee such information with respect to the assets of the REMICs,
including, without limitation, the Mortgage Loans, as is in its possession
and
reasonably required by the Trustee to enable it to perform its obligations
under
this subsection. In addition, the Depositor shall provide or cause to be
provided to the Trustee, within ten (10) days after the Closing Date, all
information or data that the Trustee 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.
155
(f) The
Trustee shall take such action and shall cause the REMICs created hereunder
to
take such action as shall be necessary to create or maintain the status thereof
as REMICs under the REMIC Provisions (and the Master Servicer shall assist
it,
to the extent reasonably requested by it). The Trustee 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 (i) endanger the status of the REMIC 1, REMIC
2
or REMIC 3 as REMICs or (ii) result in the imposition of a tax upon the REMICs
(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 the Trustee has received an Opinion of Counsel, addressed to the Trustee
(at the expense of the party seeking to take such action but in no event at
the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to the REMICs created hereunder, endanger such status or result
in
the imposition of such a tax, nor shall the Master Servicer 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. In
addition, prior to taking any action with respect to the REMICs or the assets
of
the REMICs, or causing the REMICs to take any action, which is not contemplated
under the terms of this Agreement, the Master Servicer will 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 the Trust Fund, and the
Master Servicer shall not take any such action or cause the Trust Fund 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. At all times as may be required by the Code,
the
Trustee will ensure that substantially all of the assets of the REMICs created
hereunder will consist of “qualified mortgages” as defined in Section 860G(a)(3)
of the Code and “permitted investments” as defined in Section 860G(a)(5) of the
Code.
(g) In
the
event that any tax is imposed on “prohibited transactions” of the REMICs created
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income from
foreclosure property” of the REMICs as defined in Section 860G(c) of the Code,
on any contributions to the REMICs 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 10.03 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 Master Servicer pursuant to Section 10.03 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 this Article X, or otherwise, (iii) to the
Master Servicer as provided in Section 3.05 and (iv) against amounts on deposit
in the Certificate Account and shall be paid by withdrawal therefrom to the
extent not required to be paid by the Master Servicer or the Trustee pursuant
to
another provision of this Agreement.
156
(h) On
or
before April 15 of each calendar year, commencing April 15, 2006, the Trustee
shall deliver to the Master Servicer and the Rating Agency a Certificate from
a
Responsible Officer of the Trustee stating the Trustee’s compliance with this
Article X.
(i) The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to the REMICs on a calendar year and on an accrual basis.
(j) Following
the Startup Day, the Trustee shall not accept any contributions of assets to
the
REMICs other than in connection with any Qualified Substitute Mortgage Loan
delivered in accordance with Section 2.04 unless it shall have received an
Opinion of Counsel to the effect that the inclusion of such assets in the REMICs
will not cause the REMIC 1, REMIC 2 or REMIC 3 to fail to qualify as REMICs
at
any time that any Certificates are outstanding or subject either REMIC 1, REMIC
2 or REMIC 3 to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(k) Neither
the Trustee nor the Master Servicer shall enter into any arrangement by which
the REMICs will receive a fee or other compensation for services nor permit
the
REMICs 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.
Section
10.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
foreclosure of a Mortgage 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 the Trust Fund, (iii) the termination of REMIC 1, REMIC 2 or
REMIC
3 pursuant to Article IX of this Agreement, (iv) a substitution pursuant to
Article II of this Agreement or (v) a purchase of Mortgage Loans pursuant to
Article II or III of this Agreement), nor acquire any assets for the Trust
Fund
(other than REO Property acquired in respect of a defaulted Mortgage Loan),
nor
sell or dispose of any investments in the Custodial Account or the Certificate
Account for gain, nor accept any contributions to the REMICs after the Closing
Date (other than a Qualified Substitute Mortgage Loan delivered in accordance
with Section 2.04), 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 REMIC 1, REMIC
2 or
REMIC 3 as REMICs or (b) cause the Trust Fund to be subject to a tax on
“prohibited transactions” or “contributions” pursuant to the REMIC
Provisions.
157
Section
10.03. Master
Servicer and Trustee Indemnification.
(a) The
Trustee agrees to indemnify the Trust Fund, the Depositor, and the Master
Servicer for any taxes and costs including, without limitation, any reasonable
attorneys’ fees imposed on or incurred by the Trust Fund, the Depositor or the
Master Servicer, as a result of a breach of the Trustee’s covenants set forth in
this Article X.
(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 Certificate
Insurer, the Depositor or the Trustee, as a result of a breach of the Master
Servicer’s covenants set forth in Article III or this Article X, in each case
with respect to compliance with the REMIC Provisions.
158
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, the Master Servicer
and the Trustee, with the consent of the Certificate Insurer and without the
consent of any of the Certificateholders or the Swap Provider, (i) to cure
any
ambiguity, (ii) to correct or supplement any provisions herein which may be
defective or inconsistent with any other provisions herein or to correct any
error, (iii) to amend this Agreement in any respect subject to the provisions
in
clauses (A) and (B) below, or (iv) if such amendment, as evidenced by an Opinion
of Counsel (provided by the Person requesting such amendment) delivered to
the
Trustee, is reasonably necessary to comply with any requirements imposed by
the
Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any
proposed such action which, if made effective, would apply retroactively to
the
Trust Fund at least from the effective date of such amendment; provided
that
such action (except any amendment described in (iv) above) shall not adversely
affect in any material respect the interests of any Certificateholder (other
than Certificateholders who shall consent to such amendment) and the Certificate
Insurer, as evidenced by (A) an Opinion of Counsel (provided by the Person
requesting such amendment) delivered to the Trustee, the Certificate Insurer
and
(B) a letter from each Rating Agency, confirming that such amendment shall
not
cause it to lower its rating on any of the Certificates without taking the
Certificate Guaranty Insurance Policy into account.
This
Agreement may also be amended from time to time by the Depositor, the Master
Servicer and the Trustee and Holders of Certificates entitled to at least
66-2/3% of the Voting Rights for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders of Certificates;
provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed
on
any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i), without the
consent of the Holders of Certificates of such Class evidencing at least 66-2/3%
of the Voting Rights of such Class, or (iii) reduce the aforesaid percentage
of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Sponsor or the Master Servicer or any affiliate
thereof shall be entitled to Voting Rights with respect to matters described
in
(i), (ii) and (iii) of this paragraph.
159
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 (provided by the Person requesting such amendment) to the effect that
such amendment will not result in the imposition of any tax on either REMIC
1,
REMIC 2 or REMIC 3 pursuant to the REMIC Provisions or cause either REMIC 1,
REMIC 2 or REMIC 3 to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
Promptly
after the execution of any such amendment the Trustee shall furnish a copy
of
such amendment or a written statement describing the amendment to each
Certificateholder, with a copy to the Rating Agencies and the Swap
Provider.
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01
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.
Notwithstanding
any of the other provisions of this Section 11.01, none of the Depositor, the
Master Servicer or the Trustee shall enter into any amendment to Section 4.09
or
Section 4.01(e)(vi) of this Agreement without the prior written consent of
the
Swap Provider and shall not enter into an amendment that has a materially
adverse effect on the Swap Provider without the Swap Provider’s
consent.
Prior
to
executing any amendment pursuant to this Section, the Trustee shall be entitled
to receive an Opinion of Counsel (provided by the Person requesting such
amendment) to the effect that such amendment is authorized or permitted by
this
Agreement. The cost of any Opinion of Counsel delivered pursuant to this Section
11.01 shall be an expense of the party requesting such amendment, but in any
case shall not be an expense of the Trustee.
The
Trustee may, but shall not be obligated to, enter into any amendment pursuant
to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
160
Section
11.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement 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 Master Servicer at the
expense of the Certificateholders, but only upon direction of the Depositor
accompanied by 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
11.03. 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 to 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.
No
Certificateholder shall have any right to vote (except as expressly provided
for
herein) 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
party by reason of any action taken by the parties to this Agreement pursuant
to
any provision hereof.
No
Certificateholder shall have any right by virtue 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 notice of an Event of Default, or of a default
by
the Sponsor or the Trustee in the performance of any obligation hereunder,
and
of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates entitled to at least 51% of the Voting Rights 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 is
understood and intended, and 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 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 equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at
law
or in equity.
161
Section
11.04. Governing
Law.
This
Agreement and the Certificates shall be construed in accordance with the laws
of
the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section
11.05. Notices.
All
demands, notices and direction hereunder shall be in writing and shall be deemed
effective upon receipt when delivered to (a) in the case of the Depositor,
0000
Xxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: General Counsel, or
such other address as may hereafter be furnished to the other parties hereto
in
writing; (b) in the case of Impac Funding, 0000 Xxxx Xxxxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000, Attention: General Counsel, or such other address as may
hereafter be furnished to the other parties hereto in writing; (c) in the case
of the Trustee, to its Corporate Trust Office, or such other address as may
hereafter be furnished to the other parties hereto in writing; or (d) in the
case of the Rating Agencies, [Standard & Poor’s, 00 Xxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, XX 00000], Attention: Asset Backed Surveillance Department; and
[Moody’s, Xxxxx’x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000]; (e) in the case of the ____________________, Attention: ____________
or
such other address as may be hereafter furnished to the Depositor, the Trustee
and the Master Servicer in writing by the Certificate Insurer; or (f) in the
case of the Swap Provider, ____________________, Attention: ____________. Any
notice required or permitted to be mailed 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, whether
or not the Certificateholder receives such notice.
Section
11.06. 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.
162
Section
11.07. Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Trustee, the Certificate Insurer
and the Certificateholders.
Section
11.08. Article
and Section Headings.
The
article and Section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
Section
11.09. Notice
to Rating Agencies.
The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency and the Certificate Insurer referred to below 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 Event of Default that has not been cured;
3.
The
resignation or termination of the Master Servicer or the Trustee;
4.
The
repurchase or substitution of Mortgage Loans pursuant to Section
2.04;
5.
The
final payment to Certificateholders; and
6.
Any
change in the location of the Custodial Account or the Certificate
Account.
In
addition, the Trustee shall promptly furnish to the Rating Agency copies of
each
report to Certificateholders described in Section 4.02; and the Master Servicer
shall promptly furnish to the Rating Agency copies of each annual independent
public accountants’ servicing report received as described in Section
3.20.
163
Any
such
notice pursuant to this Section 11.09 shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to (i) in the case of [Standard
& Poor’s, 00 Xxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 10041], Attention: [Asset Backed Surveillance Department]
and
(ii) in the case of [Moody’s, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000], or,
in each case, such other address as either such Rating Agency may designate
in
writing to the parties thereto.
Section
11.10. Rights
of the Certificate Insurer.
(a) The
Certificate Insurer is an express third-party beneficiary of this
Agreement.
(b) On
each
Distribution Date the Trustee shall make available to the Certificate Insurer
a
copy of the reports made available to the Certificateholders and the Depositor
on such Distribution Date.
(c) The
Trustee shall provide to the Certificate Insurer copies of any report, notice,
Opinion of Counsel, Officers’ Certificate, request for consent or request for
amendment to any document related hereto promptly upon the Trustee’s production
or receipt thereof.
(d) Unless
an
Insurer Default exists, the Trustee and the Depositor shall not agree to any
amendment to this Agreement without first having obtained the prior written
consent of the Certificate Insurer, which consent shall not be unreasonably
withheld.
(e) So
long
as there does not exist a failure by the Certificate Insurer to make a required
payment under the Policy, the Certificate Insurer shall have the right to
exercise all rights of the Holders of the Class A-1W Certificates under this
Agreement without any consent of such Holders, and such Holders may exercise
such rights only with the prior written consent of the Certificate Insurer,
except as provided herein.
(f) The
Certificate Insurer shall not be entitled to exercise any of its rights
hereunder so long as there exists a failure by the Certificate Insurer to make
a
required payment under the Certificate Guaranty Insurance Policy.
Section
11.11. Third
Party Rights.
The
Swap
Provider and the Swap Administrator shall be third-party beneficiaries of this
Agreement to the same extent as if they were parties hereto, and shall have
the
right to enforce the provisions of this Agreement.
164
IN
WITNESS WHEREOF, the Depositor, the Master Servicer 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.
| IMPAC SECURED ASSETS CORP., | ||
| Depositor | ||
| By: ___________________________ | ||
| Name: | ||
| Title: | ||
| IMPAC FUNDING CORPORATION | ||
| Master Servicer | ||
| By: ___________________________ | ||
| Name: | ||
| Title: | ||
| [NAME OF THE TRUSTEE] | ||
| Trustee | ||
| By:____________________________ | ||
| Name: | ||
| Title: |
000
|
XXXXX
XX XXXXXXXXXX
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
On
the
___ day of ___________, 200_, before me, a notary public in and for said State,
personally appeared ___________, known to me to be the ___________ of Impac
Secured Assets Corp., 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]
000
|
XXXXX
XX XXXXXXXXXX
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
On
the
___ day of _________, 200_, before me, a notary public in and for said State,
personally appeared _____________, known to me to be ________________ of Impac
Funding Corporation, 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]
000
|
XXXXX
XX XXXXXXXXXX
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
On
the
___ day of ____________, 200_, before me, a notary public in and for said State,
personally appeared ___________________, known to me to be a(n) _______________
of [NAME OF THE TRUSTEE], the entity 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]
168
EXHIBIT
A
FORM
OF
CLASS A-[] 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”).
THIS
CERTIFICATE SHALL INITIALLY BE ISSUED AS ONE OR MORE CERTIFICATES 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 TRUSTEE 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 EACH OF SUCH
BOOK-ENTRY CERTIFICATES THROUGH THE BOOK-ENTRY FACILITIES OF THE DEPOSITORY
AND,
EXCEPT AS PROVIDED BELOW, SHALL NOT BE ENTITLED TO DEFINITIVE CERTIFICATES
IN
RESPECT OF SUCH OWNERSHIP INTERESTS. ALL TRANSFERS BY CERTIFICATE OWNERS OF
THEIR RESPECTIVE OWNERSHIP 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 TRANSFER THE OWNERSHIP INTERESTS ONLY 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 TRUSTEE SHALL
NOT BE REQUIRED TO MONITOR, DETERMINE OR INQUIRE AS TO COMPLIANCE WITH THE
TRANSFER RESTRICTIONS WITH RESPECT TO THE BOOK-ENTRY CERTIFICATES, AND THE
TRUSTEE SHALL HAVE NO LIABILITY FOR TRANSFERS OF OWNERSHIP INTERESTS IN THE
BOOK-ENTRY CERTIFICATES MADE THROUGH THE BOOK-ENTRY FACILITIES OF THE DEPOSITORY
OR BETWEEN OR AMONG DEPOSITORY PARTICIPANTS OR CERTIFICATE OWNERS, MADE IN
VIOLATION OF THE APPLICABLE RESTRICTIONS.
A-1
|
Certificate
No. 1
|
Adjustable
Pass-Through Rate
|
|
|
Class
A-[] Senior
|
|
|
|
Date
of Pooling and Servicing Agreement and
Cut-off
Date: _________, 200_
|
Percentage
Interest: [_]%
|
|
|
First
Distribution Date: _________, 200_
|
Aggregate
Initial [Certificate Principal] [Notional] Balance of the Class A-[]
Certificates: $[_____________]
|
|
|
Master
Servicer:
|
Initial
[Certificate Principal] [Notional]
|
|
|
Impac
Funding Corporation
|
Balance
of this Certificate:
|
|
|
$[____________]
|
||
|
Assumed
Final
|
CUSIP:
[_________]
|
|
|
Distribution
Date: [_____________], 20__
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
200_-_
evidencing
a percentage interest in the distributions allocable to the Class A-[]
Certificates with respect to a Trust Fund consisting primarily of a pool of
conforming one- to four-family adjustable-rate first lien mortgage loans formed
and sold by IMPAC SECURED ASSETS CORP.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Impac Secured Assets Corp., the Master
Servicer, the Trustee referred to below or any of their affiliates. Neither
this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any
governmental agency or instrumentality or by Impac Secured Assets Corp., the
Master Servicer, the Trustee or any of their affiliates. None of the Depositor,
the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from
payments on the Certificates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Initial Certificate
Principal Balance of this Certificate by the aggregate Initial Certificate
Principal Balance of all Class A-[] Certificates, both as specified above)
in
certain distributions with respect to the Trust Fund consisting primarily of
an
interest in a pool of conforming one- to four-family adjustable-rate first
lien
mortgage loans (the “Mortgage Loans”), formed and sold by Impac Secured Assets
Corp. (hereinafter called the “Depositor,” which term includes any successor
entity under the Agreement referred to below). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as specified above (the
“Agreement”) among the Depositor, the Master Servicer and ___________, as
trustee (the “Trustee”), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned 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 the
acceptance hereof assents and by which such Holder is bound.
A-2
Pursuant
to the terms of the Agreement, a distribution 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 (the Distribution Date”), commencing as described in the
Agreement, 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 of such Distribution Date (the “Record Date”), from the Available
Distribution Amount in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount of interest and principal, if
any ,
required to be distributed to Holders of Class A-[] Certificates on such
Distribution Date.
[CLASS
5-A ONLY] [Pursuant to the terms of the Agreement, a distribution 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 (the Distribution Date”), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered on the Business Day immediately preceding such Distribution Date
(the
“Record Date”), from the Available Funds in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount of interest
and principal, if any, required to be distributed to Holders of Class 5-A-1
Certificates on such Distribution Date.]
Distributions
on this Certificate will be made either by the Trustee or by a Paying Agent
appointed by the Trustee either in immediately available funds (by wire transfer
or otherwise) for the account of the Person entitled thereto if such Person
shall have so notified the Trustee or such Paying Agent at least 5 Business
Days
prior to the related Record Date, or by check mailed 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 of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose in the City and State of New York. The Initial Certificate
Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of distributions
allocable to principal.
This
Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified
hereon (herein collectively called the “Certificates”).
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. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries
on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
A-3
As
provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made
by
the Master Servicer from time to time for purposes other than distributions
to
Certificateholders, such purposes including without limitation reimbursement
to
the Trustee, the Depositor and the Master Servicer of advances made, or certain
expenses incurred, by either of them.
The
Agreement permits, with certain exceptions therein provided, the amendment
of
the Agreement and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests
of
each Class of Certificates affected thereby. 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 the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders
of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of 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 Trustee, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
Classes and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of authorized denominations evidencing the
same Class and 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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered
as
the owner hereof for all purposes, and neither the Depositor, the Master
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-4
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of New York.
The
obligations created by the Agreement in respect of the Certificates and the
Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of
(i) the purchase by the Subservicer from the Trust Fund of all remaining
Mortgage Loans and each REO Property in respect thereof remaining in the Trust
Fund, thereby effecting early retirement of the Certificates and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund (or the disposition of all REO
Property in respect thereof). The Agreement permits, but does not require,
the
Subservicer to purchase at a price determined as provided in the Agreement
all
remaining Mortgage Loans and all REO Property; provided, that any such option
may only be exercised on the Distribution Date after the aggregate Stated
Principal Balance of the Mortgage Loans as of the Distribution Date upon which
the proceeds of any such purchase are distributed is less than one percent
of
the aggregate Stated Principal Balance of the Mortgage Loans at the Cut-off
Date.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
A-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
___________, 200_
|
____________________
as
Trustee
By:______________________________
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class A-[] Certificates referred to in the within-mentioned
Agreement.
|
_______________________
as
Trustee
By:______________________________
Authorized
Signatory
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_____________________________________ (Please print or typewrite name and
address including postal zip code of assignee) a Percentage Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
| _________________________________________________________________________________________________ |
| _________________________________________________________________________________________________ |
|
Dated:
|
________________________________________________ |
|
Signature
by or on behalf of assignor
|
|
| ________________________________________________ | |
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
||||||||
|
to
_______________________________________________________________________________________________________
|
,
|
|||||||
|
for
the account of
___________________________________________________________________________________________
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
______________________________________________________________
|
,
|
|||||||
|
Applicable
statements should be mailed to
________________________________________________________________________
|
,
|
|||||||
| ____________________________________________________________________________________________ |
.
|
|||||||
|
This
information is provided
by_________________________________________________________________________________
|
,
|
|||||||
|
the
assignee named above, or
__________________________________________________________________________________
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
B-1
FORM
OF
CLASS [M]-[_] CERTIFICATE
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES[,
THE
CLASS M-[]] CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED
BELOW).
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 SHALL INITIALLY BE ISSUED AS ONE OR MORE CERTIFICATES 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 TRUSTEE 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 EACH OF SUCH
BOOK-ENTRY CERTIFICATES THROUGH THE BOOK-ENTRY FACILITIES OF THE DEPOSITORY
AND,
EXCEPT AS PROVIDED BELOW, SHALL NOT BE ENTITLED TO DEFINITIVE CERTIFICATES
IN
RESPECT OF SUCH OWNERSHIP INTERESTS. ALL TRANSFERS BY CERTIFICATE OWNERS OF
THEIR RESPECTIVE OWNERSHIP 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 TRANSFER THE OWNERSHIP INTERESTS ONLY 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 TRUSTEE SHALL
NOT BE REQUIRED TO MONITOR, DETERMINE OR INQUIRE AS TO COMPLIANCE WITH THE
TRANSFER RESTRICTIONS WITH RESPECT TO THE BOOK-ENTRY CERTIFICATES, AND THE
TRUSTEE SHALL HAVE NO LIABILITY FOR TRANSFERS OF OWNERSHIP INTERESTS IN THE
BOOK-ENTRY CERTIFICATES MADE THROUGH THE BOOK-ENTRY FACILITIES OF THE DEPOSITORY
OR BETWEEN OR AMONG DEPOSITORY PARTICIPANTS OR CERTIFICATE OWNERS, MADE IN
VIOLATION OF THE APPLICABLE RESTRICTIONS.
ANY
TRANSFEREE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH IN SECTION
5.02(C) OF THE POOLING AND SERVICING AGREEMENT.
B-1-1
|
Certificate
No. 1
|
Adjustable
Pass-Through Rate
|
|
|
Class
[M]-[ ]
|
Aggregate
Initial Certificate Principal
|
|
|
Balance
of the Class [M]-[ ] Certificates:
|
||
|
$[____________]
|
||
|
Date
of Pooling and Servicing
|
Initial
Certificate Principal Balance of this
Certificate:
|
|
|
Agreement:
_________, 200_ and Cut-off
Date:
__________, 200_
|
$[____________]
|
|
|
|
||
|
First
Distribution Date:
|
CUSIP:
[________]
|
|
|
_________,
200_
|
|
|
|
Master
Servicer:
|
||
|
Impac
Funding Corporation
|
||
|
Assumed
Final Distribution Date:
|
||
|
[________
__], 20__
|
B-1-2
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
200_-_
evidencing
a percentage interest in any distributions allocable to the Class [M]-[]
Certificates with respect to the Trust Fund consisting primarily of a pool
of
conforming one- to four-family adjustable-rate first lien mortgage loans formed
and sold by IMPAC SECURED ASSETS CORP.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Impac Secured Assets Corp., the Master
Servicer, the Trustee referred to below or any of their affiliates. Neither
this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any
governmental agency or instrumentality or by Impac Secured Assets Corp., the
Master Servicer, the Trustee or any of their affiliates. None of the Depositor,
the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from
payments on the Certificates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Initial Certificate
Principal Balance of this Certificate by the aggregate Initial Certificate
Principal Balance of all Class [M]-[] Certificates, both as specified above)
in
certain distributions with respect to a Trust Fund consisting primarily of
a
pool of conforming one- to four-family adjustable-rate first lien mortgage
loans
(the “Mortgage Loans”), formed and sold by Impac Secured Assets Corp.
(hereinafter called the “Depositor,” which term includes any successor entity
under the Agreement referred to below). The Trust Fund was created pursuant
to a
Pooling and Servicing Agreement dated as specified above (the “Agreement”) among
the Depositor, the Master Servicer and ____________, as trustee (the “Trustee”),
a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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 the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, a distribution 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 (the “Distribution Date”), commencing as described in the
Agreement, 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 of such Distribution Date (the “Record Date”), from the Available
Distribution Amount in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount of interest and principal, if
any ,
required to be distributed to Holders of Class [M]-[] Certificates on such
Distribution Date.
B-1-3
Distributions
on this Certificate will be made either by the Trustee or by a Paying Agent
appointed by the Trustee either in immediately available funds (by wire transfer
or otherwise) for the account of the Person entitled thereto if such Person
shall have so notified the Trustee or such Paying Agent at least 5 Business
Days
prior to the related Record Date, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Any
transferee shall be deemed to have made the representation set forth in Section
5.02(c) of the Agreement.
Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose in the City and State of New York. The Initial Certificate
Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of the distributions
allocable to principal and any Realized Losses allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified
hereon (herein collectively called the “Certificates”).
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. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries
on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As
provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made
by
the Master Servicer from time to time for purposes other than distributions
to
Certificateholders, such purposes including without limitation reimbursement
to
the Trustee, the Depositor and the Master Servicer of advances made, or certain
expenses incurred, by either of them.
The
Agreement permits, with certain exceptions therein provided, the amendment
of
the Agreement and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests
of
each Class of Certificates affected thereby. 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 the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders
of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
B-1-4
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 Trustee, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
Classes and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of authorized denominations evidencing the
same Class and 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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered
as
the owner hereof for all purposes, and neither the Depositor, the Master
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of New York.
The
obligations created by the Agreement in respect of the Certificates and the
Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of
(i) the purchase by (A) the Holder of at least 50.01% Percentage Interest in
the
Class C Certificates (the “Majority Class C Certificateholder”) or (B) GMAC
Mortgage Corporation from the Trust Fund of all remaining Mortgage Loans and
each REO Property in respect thereof remaining in the Trust Fund, thereby
effecting early retirement of the Certificates and (ii) the final payment or
other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund (or the disposition of all REO Property in
respect thereof). The Agreement permits, but does not require, the Majority
Class C Certificateholder or GMAC Mortgage Corporation to purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all
REO
Property; provided, that any such option may only be exercised on the
Distribution Date after the aggregate Stated Principal Balance of the Mortgage
Loans as of the Distribution Date upon which the proceeds of any such purchase
are distributed is less than ten percent (in the case of the Majority Class
C
Certificateholder) or five percent (in the case of GMAC Mortgage Corporation)
of
the aggregate Stated Principal Balance of the Mortgage Loans at the Cut-off
Date.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
B-1-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
_________, 200_
|
________________________
as
Trustee
By:______________________________
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [M]-[] Certificates referred to in the within-mentioned
Agreement.
|
________________________
Trustee
By:______________________________
Authorized
Signatory
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_____________________________________ (Please print or typewrite name and
address including postal zip code of assignee) a Percentage Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
| _________________________________________________________________________________________________ |
| _________________________________________________________________________________________________ |
|
Dated:
|
________________________________________________ |
|
Signature
by or on behalf of assignor
|
|
| ________________________________________________ | |
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
||||||||
|
to
_______________________________________________________________________________________________________
|
,
|
|||||||
|
for
the account of
___________________________________________________________________________________________
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
______________________________________________________________
|
,
|
|||||||
|
Applicable
statements should be mailed to
________________________________________________________________________
|
,
|
|||||||
| ____________________________________________________________________________________________ |
.
|
|||||||
|
This
information is provided
by_________________________________________________________________________________
|
,
|
|||||||
|
the
assignee named above, or
__________________________________________________________________________________
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
B-2
FORM
OF
CLASS C CERTIFICATES
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A, CLASS M-1,
CLASS
M-2, CLASS M-3, CLASS M-4, CLASS M-5, CLASS M-6, CLASS M-7 AND CLASS M-8
CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED
BELOW).
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 HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
B-2-1
|
Certificate
No. [ ]
|
||
|
Class
C
|
Aggregate
Initial Notional Amount of the Class C Certificates:
|
|
|
$_____________]
|
||
|
Date
of Pooling and Servicing
|
Initial
Notional Amount of this Certificate:
|
|
|
Agreement:
___________, 200_ and Cut-off Date: ___________, 200_
|
$[_____________]
|
|
|
|
||
|
First
Distribution Date:
|
Initial
Certificate Principal Balance
|
|
|
___________,
200_
|
of
this Certificate $[_________]
|
|
|
Master
Servicer:
|
Percentage
Interest of this
|
|
|
Impac
Funding Corporation
|
Certificate:
[___]%
|
|
|
Assumed
Final Distribution Date:
|
CUSIP:
[_________]
|
|
|
[_______
___], 20--
|
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
200_-_
evidencing
percentage interest in the distributions allocable to the Class C Certificates
with respect to a Trust Fund consisting primarily of a pool of conforming one-
to four- family adjustable-rate first lien mortgage loans formed and sold by
IMPAC SECURED ASSETS CORP.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Impac Secured Assets Corp., the Master
Servicer, the Trustee referred to below or any of their affiliates. Neither
this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any
governmental agency or instrumentality or by Impac Secured Assets Corp., the
Master Servicer, the Trustee or any of their affiliates. None of the Depositor,
the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other or obligation secured by or payable from
payments on the Certificates.
B-2-2
This
certifies that ___________ is the registered owner of the Percentage Interest
evidenced by this Class C Certificate (obtained by dividing the Original Class
C
Certificate by the Original Class Certificate Principal Balance) in certain
distributions with respect to a Trust consisting primarily of the Mortgage
Loans
deposited by Impac Secured Assets Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of ___________, 200_
(the
“Agreement”) among the Depositor, Impac Funding Corporation, as master servicer
(the “Master Servicer”) and ___________, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class C Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class C Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, a distribution 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 (the “Distribution Date”), commencing as described in the
Agreement, 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 of such Distribution Date (the “Record Date”), from the Available
Distribution Amount in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of interest and principal, if
any)
required to be distributed to Holders of Class C Certificates on such
Distribution Date.
Distributions
on this Certificate will be made either by the Trustee or by a Paying Agent
appointed by the Trustee either in immediately available funds (by wire transfer
or otherwise) for the account of the Person entitled thereto if such Person
shall have so notified the Trustee or such Paying Agent at least 5 Business
Days
prior to the related Record Date, or by check mailed 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 of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose in the City and State of New York.
This
Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified
hereon (herein collectively called the “Certificates”).
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. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries
on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
B-2-3
As
provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made
by
the Master Servicer from time to time for purposes other than distributions
to
Certificateholders, such purposes including without limitation reimbursement
to
the Trustee, the Depositor and the Master Servicer of advances made, or certain
expenses incurred, by either of them.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Master Servicer or the Depositor; or there shall be delivered
to
the Trustee and the Depositor a transferor certificate by the transferor and
an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor 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 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.
The
Agreement permits, with certain exceptions therein provided, the amendment
of
the Agreement and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests
of
each Class of Certificates affected thereby. 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 the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders
of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of 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 Trustee, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
B-2-4
The
Certificates are issuable only as registered Certificates without coupons in
Classes and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of authorized denominations evidencing the
same Class and 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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered
as
the owner hereof for all purposes, and neither the Depositor, the Master
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of New York.
The
obligations created by the Agreement in respect of the Certificates and the
Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of
(i) the purchase by (A) the Holder of at least 50.01% Percentage Interest in
the
Class C Certificates (the “Majority Class C Certificateholder”) or (B) GMAC
Mortgage Corporation from the Trust Fund of all remaining Mortgage Loans and
each REO Property in respect thereof remaining in the Trust Fund, thereby
effecting early retirement of the Certificates and (ii) the final payment or
other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund (or the disposition of all REO Property in
respect thereof). The Agreement permits, but does not require, the Majority
Class C Certificateholder or GMAC Mortgage Corporation to purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all
REO
Property; provided, that any such option may only be exercised on the
Distribution Date after the aggregate Stated Principal Balance of the Mortgage
Loans as of the Distribution Date upon which the proceeds of any such purchase
are distributed is less than ten percent (in the case of the Majority Class
C
Certificateholder) or five percent (in the case of GMAC Mortgage Corporation)
of
the aggregate Stated Principal Balance of the Mortgage Loans at the Cut-off
Date.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
B-2-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
___________, 200_
|
_________________________
as
Trustee
By:______________________________
Authorized Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class C Certificates referred to in the within-mentioned
Agreement.
|
_________________________
as
Trustee
By:______________________________
Authorized
Signatory
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_____________________________________ (Please print or typewrite name and
address including postal zip code of assignee) a Percentage Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
| _________________________________________________________________________________________________ |
| _________________________________________________________________________________________________ |
|
Dated:
|
________________________________________________ |
|
Signature
by or on behalf of assignor
|
|
| ________________________________________________ | |
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds to
________________________________________________for the account of
______________
account
number ___________, or, if mailed by check, to________________
_____
Applicable statements should be mailed to ______________________________________
______________________________________________________________________________
_________.
This
information is provided by __________________, the assignee named
above,
or
____________________,
as its
agent.
EXHIBIT
B-3
FORM
OF
CLASS P CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
B-3-1
|
Certificate
No. []
|
||
|
Class
P
|
Aggregate
Initial Certificate Principal
|
|
|
Balance
of the Class P Certificates:
|
||
|
$100.00
|
||
|
Date
of Pooling and Servicing
|
Initial
Certificate Principal Balance
|
|
|
Agreement:
__________, 200_ and Cut-off Date:
|
of
this Certificate Denomination:
|
|
|
___________,
200_
|
$[_____________]
|
|
|
First
Distribution Date
|
Percentage
Interest of this Certificate:
|
|
|
___________,
200_
|
[___]%
|
|
|
Master
Servicer
|
CUSIP:
[_________]
|
|
|
Impac
Funding Corporation
|
||
|
Assumed
Final Distribution Date:
|
||
|
[________
___], 20__
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
200_-_
evidencing
a percentage interest in any distributions allocable to the Class P Certificates
with respect to the Trust Fund consisting primarily of a pool of one-to
four-family adjustable-rate first lien mortgage loans formed and sold by IMPAC
SECURED ASSETS CORP.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Impac Secured Assets Corp., the Master
Servicer, the Trustee referred to below or any of their affiliates. Neither
this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any
governmental agency or instrumentality or by Impac Secured Assets Corp., the
Master Servicer, the Trustee or any of their affiliates. None of the Depositor,
the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from
payments on the Certificates.
B-3-2
This
certifies that ___________ is the registered owner of the Percentage Interest
evidenced by this Class P Certificate (obtained by dividing the Denomination
of
this Class P Certificate by the Original Class Certificate Principal Balance)
in
certain distributions with respect to a Trust Fund consisting primarily of
a
pool of one- to four-family adjustable-rate first lien mortgage loans (the
“Mortgage Loans”), formed and sold by Impac Secured Assets Corp. (hereinafter
called the “Depositor,” which term includes any successor entity under the
Agreement referred to below). The Trust Fund was created pursuant to a Pooling
and Servicing Agreement dated as specified above (the “Agreement”) among the
Depositor, the Master Servicer, ___________, as trustee (the “Trustee”), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned 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 the acceptance hereof
assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, a distribution 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 (the “Distribution Date”), commencing as described in the
Agreement, 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 of such Distribution Date (the “Record Date”), from the Available
Distribution Amount in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of Prepayment Charges and
principal, if any) required to be distributed to Holders of Class P Certificates
on such Distribution Date.
Distributions
on this Certificate will be made either by the Trustee or by a Paying Agent
appointed by the Trustee either in immediately available funds (by wire transfer
or otherwise) for the account of the Person entitled thereto if such Person
shall have so notified the Trustee or such Paying Agent at least 5 Business
Days
prior to the related Record Date, or by check mailed 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 of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose in the City and State of New York. The Initial Certificate
Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced to the extent of the distributions
allocable to principal allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified
hereon (herein collectively called the “Certificates”).
B-3-3
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. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries
on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As
provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made
by
the Master Servicer from time to time for purposes other than distributions
to
Certificateholders, such purposes including without limitation reimbursement
to
the Trustee, the Depositor and the Master Servicer of advances made, or certain
expenses incurred, by either of them.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Master Servicer or the Depositor; or there shall be delivered
to
the Trustee and the Depositor a transferor certificate by the transferor and
an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor 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 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.
The
Agreement permits, with certain exceptions therein provided, the amendment
of
the Agreement and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests
of
each Class of Certificates affected thereby. 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 the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders
of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
B-3-4
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 Trustee, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
Classes and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of authorized denominations evidencing the
same Class and 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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered
as
the owner hereof for all purposes, and neither the Depositor, the Master
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of New York.
The
obligations created by the Agreement in respect of the Certificates and the
Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of
(i) the purchase by (A) the Holder of at least 50.01% Percentage Interest in
the
Class C Certificates (the “Majority Class C Certificateholder”) or (B) GMAC
Mortgage Corporation from the Trust Fund of all remaining Mortgage Loans and
each REO Property in respect thereof remaining in the Trust Fund, thereby
effecting early retirement of the Certificates and (ii) the final payment or
other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund (or the disposition of all REO Property in
respect thereof). The Agreement permits, but does not require, the Majority
Class C Certificateholder or GMAC Mortgage Corporation to purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all
REO
Property; provided, that any such option may only be exercised on the
Distribution Date after the aggregate Stated Principal Balance of the Mortgage
Loans as of the Distribution Date upon which the proceeds of any such purchase
are distributed is less than ten percent (in the case of the Majority Class
C
Certificateholder) or five percent (in the case of GMAC Mortgage Corporation)
of
the aggregate Stated Principal Balance of the Mortgage Loans at the Cut-off
Date.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
B-3-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
___________, 200_
|
_____________________
as
Trustee
By:______________________________
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class P Certificates referred to in the within-mentioned
Agreement.
|
_____________________
as
Trustee
By:______________________________
Authorized
Signatory
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| _________________________________________________________________________________________________ | |
| _________________________________________________________________________________________________ |
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
| _________________________________________________________________________________________________ | |
| _________________________________________________________________________________________________ |
| Dated: | _______________________________ |
| Signature by or on behalf of assignor |
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-4
FORM
OF
CLASS [R] CERTIFICATE
THIS
CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(C) OF THE AGREEMENT
OR
AN OPINION OF COUNSEL AS PROVIDED IN SECTION 5.02(C) THAT THE PURCHASE OF THIS
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF
THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE DEPOSITOR OR THE TRUSTEE
TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING
AND SERVICING AGREEMENT (THE “AGREEMENT”).
THIS
CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER SERVICER
AND
THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE
OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B)
ANY
ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE)
WHICH 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, (C)
ANY
ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREIN REFERRED TO
AS A
“DISQUALIFIED ORGANIZATION”) OR (D) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2)
NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX
AND
(3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OR 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
OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF
THIS
PARAGRAPH.
B-4-1
|
Certificate
No. 1
|
||
|
Class
[R] Senior
|
||
|
Date
of Pooling and Servicing
|
Percentage
Interest: 100%
|
|
|
Agreement
and Cut-off Date: ____________, 200_
|
||
|
First
Distribution Date: ___________, 200_
|
||
|
Master
Servicer:
|
||
|
Impac
Funding Corporation
|
||
|
Assumed
Final Distribution Date: [_________], 20__
|
CUSIP:
[_________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES
200_-_
evidencing
a percentage interest in any distributions allocable to the Class [R]
Certificates with respect to the Trust Fund consisting primarily of a pool
of
one- to four-family adjustable-rate first lien mortgage loans formed and sold
by
IMPAC SECURED ASSETS CORP.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Impac Secured Assets Corp., the Master
Servicer, the Trustee referred to below or any of their affiliates. Neither
this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any
governmental agency or instrumentality or by Impac Secured Assets Corp., the
Master Servicer, the Trustee or any of their affiliates. None of the Depositor,
the Master Servicer or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from
payments on the Certificates.
This
certifies that Impac Funding Corporation is the registered owner of the
Percentage Interest evidenced by this Certificate stated above in certain
distributions with respect to a Trust Fund, consisting primarily of a pool
of
one- to four-family adjustable-rate first lien mortgage loans (the “Mortgage
Loans”), formed and sold by Impac Secured Assets Corp. (hereinafter called the
“Depositor,” which term includes any successor entity under the Agreement
referred to below). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as specified above (the “Agreement”) among the
Depositor, the Master Servicer, ___________, N.A., as trustee (the “Trustee”), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned 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 the acceptance hereof
assents and by which such Holder is bound.
B-4-2
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the Patent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
office or agency maintained by the Trustee.
This
Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified
hereon (herein collectively called the “Certificates”).
As
provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made
by
the Master Servicer from time to time for purposes other than distributions
to
Certificateholders, such purposes including without limitation reimbursement
to
the Trustee, the Depositor and the Master Servicer of advances made, or certain
expenses incurred, by either of them.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Master Servicer or the Depositor; or there shall be delivered
to
the Trustee and the Depositor a transferor certificate by the transferor and
an
investment letter shall be executed by the transferee. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee and the Depositor 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 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.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest, in
this
Certificate may be transferred without delivery to the Trustee of (a) a transfer
affidavit of the proposed transferee and (b) a transfer certificate of the
transferor, each of such documents to be in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must
agree
not to transfer an Ownership Interest in this Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v)
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. Pursuant to the Agreement, the Trustee
will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws
on
transfers of residual interests to disqualified organizations, if any person
other than a Permitted Transferee acquires an Ownership Interest on a Class
R-[]
Certificate in violation of the restrictions mentioned above.
B-4-3
The
Agreement permits, with certain exceptions therein provided, the amendment
of
the Agreement and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests
of
each Class of Certificates affected thereby. 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 the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders
of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of 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 Trustee, duly endorsed by, or accompanied by an,
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
Classes and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of authorized denominations evidencing the
same Class and 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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered
as
the owner hereof for all purposes, and neither the Depositor, the Master
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of New York.
B-4-4
The
obligations created by the Agreement in respect of the Certificates and the
Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of
(i) the purchase by the Subservicer from the Trust Fund of all remaining
Mortgage Loans and each REO Property in respect thereof remaining in the Trust
Fund, thereby effecting early retirement of the Certificates and (ii) the final
payment or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund (or the disposition of all REO
Property in respect thereof). The Agreement permits, but does not require,
the
Subservicer to purchase at a price determined as provided in the Agreement
all
remaining Mortgage Loans and all REO Property; provided, that any such option
may only be exercised on the Distribution Date after the aggregate Stated
Principal Balance of the Mortgage Loans as of the Distribution Date upon which
the proceeds of any such purchase are distributed is less than one percent
of
the aggregate Stated Principal Balance of the Mortgage Loans at the Cut-off
Date.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
B-4-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
___________, 200_
|
_______________________
as
Trustee
By:______________________________
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [R] Certificates referred to in the within-mentioned
Agreement.
|
_______________________
as
Trustee
By:______________________________
Authorized
Signatory
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| _________________________________________________________________________________________________ |
| _________________________________________________________________________________________________ |
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
| _________________________________________________________________________________________________ |
| _________________________________________________________________________________________________ |
| Dated: | ________________________________________ |
| Signature by or on behalf of assignor |
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
C
FORM
OF
CUSTODIAN'S INITIAL CERTIFICATION
____________,
200_
Impac
Funding Corporation
0000
Xxxx
Xxxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of __________, 200_ among Impac
Secured
Assets Corp., Impac Funding Corporation and ___________,
Mortgage
Pass-Through Certificates, Series 200_-_
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement, the undersigned, as Custodian, hereby certifies that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or listed on the attachment hereto) it has reviewed the Mortgage
File and the Mortgage Loan Schedule and has determined that: (i) all documents
required to be included in the Mortgage File are in its possession; (ii) such
documents have reviewed by it and appear regular on their face and relate to
such Mortgage Loan; and (iii) based on examination by it, and only as to such
documents, the information set forth in items (iii) and (iv) of the definition
or description of “Mortgage Loan Schedule” is correct.
The
Custodian has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Custodian makes no representation that
any
documents specified in clause (vi) of Section 2.01 should be included in any
Mortgage File. The Custodian makes no representations as to and shall not be
responsible to verify: (i) the validity, legality, sufficiency, enforceability,
due authorization, recordability or genuineness of any of the documents
contained in each Mortgage File of any of the Mortgage Loans identified on
the
Mortgage Loan Schedule, (ii) the collectability, insurability, effectiveness
or
suitability of any such Mortgage Loan, or (iii) the existence of any assumption,
modification, written assurance or substitution agreement with respect to any
Mortgage File if no such documents appear in the Mortgage File delivered to
the
Custodian.
C-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Pooling and Servicing Agreement.
|
[_______________________________]
|
|
|
By:
________________________________
|
|
|
Name:
|
|
|
Title:
|
C-2
EXHIBIT
D
FORM
OF
CUSTODIAN FINAL CERTIFICATION
______________,
20__
Impac
Funding Corporation
0000
Xxxx
Xxxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of ___________, 200_ among Impac
Secured
Assets Corp., Impac Funding Corporation and ____________, Mortgage
Pass-Through
Certificates, Series 200_-________
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement, the undersigned, as Custodian, hereby certifies that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or listed on the attachment hereto) it has received the documents
set forth in Section 2.01.
The
Custodian has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Custodian makes no representation that
any
documents specified in clause (vi) of Section 2.01 should be included in any
Mortgage File. The Custodian makes no representations as to and shall not be
responsible to verify: (i) the validity, legality, sufficiency, enforceability,
due authorization, recordability or genuineness of any of the documents
contained in each Mortgage File of any of the Mortgage Loans identified on
the
Mortgage Loan Schedule, (ii) the collectability, insurability, effectiveness
or
suitability of any such Mortgage Loan or (iii) the existence of any assumption,
modification, written assurance or substitution agreement with respect to any
Mortgage File if no such documents appear in the Mortgage File delivered to
the
Custodian.
D-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Pooling and Servicing Agreement.
|
[_________________________]
|
|
|
By: ________________________________
|
|
|
Name:
|
|
|
Title:
|
D-2
EXHIBIT
E
FORM
OF
REMITTANCE REPORT
(Provided
Upon Request)
E-1
EXHIBIT
F-1
REQUEST
FOR RELEASE
(for
Custodian)
|
Loan
Information
|
||||
|
Name
of Mortgagor:
|
___________________________
|
|||
|
Master
Servicer
|
||||
|
Loan
No.:
|
___________________________
|
|||
|
Trustee
|
||||
|
Name:
|
___________________________
|
|||
|
Address:
|
___________________________
|
|||
|
___________________________
|
||||
|
Trustee
|
||||
|
Mortgage
File No.:
|
___________________________
|
F-1-1
Request
for Requesting Documents (check one):
|
1.
|
Mortgage
Loan Liquidated.
|
(The
Master Servicer hereby certifies that all proceeds of foreclosure, insurance
or
other liquidation have been finally received and deposited into the Custodial
Account to the extent required pursuant to the Pooling and Servicing
Agreement.)
|
2.
|
Mortgage
Loan in Foreclosure.
|
|
3.
|
Mortgage
Loan Repurchased Pursuant to Section 9.01 of the Pooling and Servicing
Agreement.
|
|
4.
|
Mortgage
Loan Repurchased Pursuant to Article II of the Pooling and Servicing
Agreement.
|
(The
Master Servicer hereby certifies that the repurchase price has been deposited
into the Custodial Account pursuant to the Pooling and Servicing
Agreement.)
|
5.
|
Other
(explain).
|
|
|
|
|
|
|
|
|
|
|
|
|
F-1-2
The
undersigned Master Servicer hereby acknowledges that it has received from the
Trustee for the Holders of Mortgage Pass-Through Certificates, Series 200_-_,
the documents referred to below (the “Documents”). All capitalized terms not
otherwise defined in this Request for Release shall have the meanings given
them
in the Pooling and Servicing Agreement, dated as of ___________, 200_ (the
“Pooling and Servicing Agreement”), among Impac Secured Assets Corp., Impac
Funding Corporation and the Trustee.
|
(
)
|
Promissory
Note dated _________________, 200_, in the original principal sum
of
$__________, made by __________________, payable to, or endorsed
to the
order of, the Trustee.
|
|
(
)
|
Mortgage
recorded on _________________________ as instrument no. ___________
in the
County Recorders Office of the County of ______________________,
State of
_____________________ in book/reel/docket of official records at
page/image _______________.
|
|
(
)
|
Deed
of Trust recorded on ____________________ as instrument no._____________
in the County Recorder's Office of the County of ______________________,
State of _____________________in book/reel/docket __________________
of
official records at page/image
________________.
|
|
(
)
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on _______________
as instrument no. ______________ in the County Recorder's Office
of the
County of ________________, State of ___________________ in
book/reel/docket ____________ of official records at page/image
___________.
|
|
(
)
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
|
(
)
|
___________________________
|
|
(
)
|
___________________________
|
|
(
)
|
___________________________
|
|
(
)
|
___________________________
|
F-1-3
The
undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The
Master Servicer shall hold and retain possession of the Documents in trust
for
the benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The
Master Servicer shall not cause or knowingly permit the Documents to become
subject to, or encumbered by, any claim, liens, security interest, charges,
writs of attachment or other impositions nor shall the Master Servicer assert
or
seek to assert any claims or rights of setoff to or against the Documents or
any
proceeds thereof.
(3) The
Master Servicer shall return each and every Document previously requested from
the Mortgage File to the Custodian when the need therefor no longer exists,
unless the Mortgage Loan relating to the Documents has been liquidated and
the
proceeds thereof have been remitted to the Custodial Account and except as
expressly provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of the Master Servicer shall at all times be
earmarked for the account of the Trustee, and the Master Servicer shall keep
the
Documents and any proceeds separate and distinct from all other property in
the
Master Servicer's possession, custody or control.
|
IMPAC
FUNDING CORPORATION
|
|
|
By:
___________________________
Title:
___________________________
|
Date:
_________________, 200_
F-1-4
EXHIBIT
F-2
REQUEST
FOR RELEASE
[Mortgage
Loans Paid in Full]
OFFICER'S
CERTIFICATE AND TRUST RECEIPT
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
200_-_
_____________________________________
HEREBY CERTIFIES THAT HE/SHE IS AN OFFICER OF THE MASTER SERVICER, HOLDING
THE
OFFICE SET FORTH BENEATH HIS/HER SIGNATURE, AND HEREBY FURTHER CERTIFIES AS
FOLLOWS:
WITH
RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
ALL
PAYMENTS OF PRINCIPAL, PREMIUM (IF ANY), AND INTEREST HAVE BEEN
MADE.
|
LOAN
NUMBER: _____________________
|
BORROWER'S
NAME: ________________
|
|
COUNTY:
___________________________
|
F-2-1
WE
HEREBY
CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS, WHICH ARE
REQUIRED TO BE DEPOSITED IN THE CUSTODIAL ACCOUNT PURSUANT TO SECTION 3.10
OF
THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE CREDITED.
|
_________
____________
|
DATED:
_____________________
|
// VICE
PRESIDENT
// ASSISTANT
VICE PRESIDENT
F-2-2
EXHIBIT
G-1
FORM
OF
INVESTOR REPRESENTATION LETTER
___________,200__
Impac
Secured Assets Corp.
0000
Xxxx
Xxxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
[TRUSTEE]
Attention:
Impac Secured Assets Corp. Series 200_-_
|
|
Re:
|
Impac
Secured Assets Corp. Mortgage
Pass-Through Certificates Series 200_-_, Class
|
Ladies
and Gentlemen:
______________
(the “Purchaser”) intends to purchase from ______________ (the “Sponsor”)
$_________ Initial Certificate Principal Balance of Mortgage Pass-Through
Certificates, Series 200_-_, Class _____ (the “Certificates”), issued pursuant
to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”),
dated as of ___________, 200_ among Impac Secured Assets Corp., as depositor
(the “Depositor”), Impac Funding Corporation, as master servicer, ____________,
as trustee (the “Trustee”). All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Purchaser hereby certifies, represents and warrants to, and covenants with,
the
Depositor and the Trustee that:
1. The
Purchaser understands that (a) the Certificates have not been and will not
be
registered or qualified under the Securities Act of 1933, as amended (the “Act”)
or any state securities law, (b) the Depositor is not required to so register
or
qualify the Certificates, (c) the Certificates may be resold only if registered
and qualified pursuant to the provisions of the Act or any state securities
law,
or if an exemption from such registration and qualification is available, (d)
the Pooling and Servicing Agreement contains restrictions regarding the transfer
of the Certificates and (e) the Certificates will bear a legend to the foregoing
effect.
2. The
Purchaser is acquiring the Certificates for its own account for investment
only
and not with a view to or for sale in connection with any distribution thereof
in any manner that would violate the Act or any applicable state securities
laws.
G-1-1
3. The
Purchaser is (a) a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters, and, in particular,
in such matters related to securities similar to the Certificates, such that
it
is capable of evaluating the merits and risks of investment in the Certificates,
(b) able to bear the economic risks of such an investment and (c) an “accredited
investor” within the meaning of Rule 501 (a) promulgated pursuant to the
Act.
4. The
Purchaser has been furnished with, and has had an opportunity to review (a)
a
copy of the Pooling and Servicing Agreement and (b) such other information
concerning the Certificates, the Mortgage Loans and the Depositor as has been
requested by the Purchaser from the Depositor or the Sponsor and is relevant
to
the Purchaser's decision to purchase the Certificates. The Purchaser has had
any
questions arising from such review answered by the Depositor or the Sponsor
to
the satisfaction of the Purchaser.
5. The
Purchaser has not and will not nor has it authorized or will it authorize any
person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other similar security
to
any person in any manner, (b) solicit any offer to buy or to accept a pledge,
disposition of other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest
in
any Certificate or any other similar security with any person in any manner,
(d)
make any general solicitation by means of general advertising or in any other
manner or (e) take any other action, that (as to any of (a) through (e) above)
would constitute a distribution of any Certificate under the Act, that would
render the disposition of any Certificate a violation of Section 5 of the Act
or
any state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer any of
the
Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
|
Very
truly yours,
|
|
|
(Purchaser) |
|
|
By:________________________________
|
|
| Name: _____________________________ | |
|
Title:
______________________________
|
G-1-2
EXHIBIT
G-2
FORM
OF
TRANSFEROR REPRESENTATION LETTER
______________,
200___
Impac
Secured Assets Corp.
0000
Xxxx
Xxxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
[TRUSTEE]
Attention:
Impac Secured Assets Corp. Series 200_-_
|
|
Re:
|
Impac
Secured Assets Corp. Mortgage
Pass-Through Certificates, Series 200_-_, Class
|
Ladies
and Gentlemen:
In
connection with the sale by ___________ (the “Sponsor”) to ________ (the
“Purchaser”) of $_________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 200_-_, Class _____ (the “Certificates”),
issued pursuant to the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”), dated as of ____________, 200_ among Impac Secured Assets
Corp., as depositor (the “Depositor”), Impac Funding Corporation, as master
servicer, ___________, as trustee (the “Trustee”). The Sponsor hereby certifies,
represents and warrants to, and covenants with, the Depositor and the Trustee
that:
Neither
the Sponsor 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 Sponsor will not act in
any
manner set forth in the foregoing sentence with respect to any Certificate.
The
Sponsor 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.
G-2-1
|
Very
truly yours,
_____________________
(Sponsor)
|
|
|
By:
_____________________
Name:
___________________
Title:
_____________________
|
G-2-2
EXHIBIT
G-3
FORM
OF
RULE 144A INVESTMENT REPRESENTATION
Description
of Rule 144A Securities, including numbers:
Impac
Secured Assets Corp.
Mortgage
Pass-Through Certificates
Series
200_-_, Class ____, No. ____
The
undersigned seller, as registered holder (the “Transferor”), intends to transfer
the Rule 144A Securities described above to the undersigned buyer (the
“Buyer”).
1.
In
connection with such transfer and in accordance with the agreements pursuant
to
which the Rule 144A Securities were issued, the Transferor hereby certifies
the
following facts: Neither the Transferor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other
disposition of the Rule 144A Securities, or otherwise approached or negotiated
with respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, any person in any manner, or
made
any general solicitation by means of general advertising or in any other manner,
or taken any other action, which would constitute a distribution of the Rule
144A Securities under the Securities Act of 1933, as amended (the “1933 Act”),
or which would render the disposition of the Rule 144A Securities a violation
of
Section 5 of the 1933 Act or require registration pursuant thereto, and that
the
Transferor has not offered the Rule 144A Securities to any person other than
the
Buyer or another “qualified institutional buyer” as defined in Rule 144A under
the 0000 Xxx.
2.
The
Buyer warrants and represents to, and covenants with, the Transferor, the
Trustee and the Master Servicer pursuant to Section 5.02 of the Pooling and
Servicing Agreement as follows:
a.
The
Buyer understands that the Rule 144A Securities have not been registered under
the 1933 Act or the securities laws of any state.
b.
The
Buyer considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Rule 144A
Securities.
c.
The
Buyer has been furnished with all information regarding the Rule 144A Securities
that it has requested from the Transferor, the Trustee or the Master
Servicer.
G-3-1
d.
Neither the Buyer nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Rule 144A Securities, any interest
in
the Rule 144A Securities or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the Rule
144A
Securities, any interest in the Rule 144A Securities or any other similar
security from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Rule 144A Securities under the
1933
Act or that would render the disposition of the Rule 144A Securities a violation
of Section 5 of the 1933 Act or require registration pursuant thereto, nor
will
it act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e.
The
Buyer is a “qualified institutional buyer” as that term is defined in Rule 144
under the 1933 Act and has completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that
the
sale to it is being made in reliance on Rule 144A. The Buyer is acquiring the
Rule 144A Securities for its own account or the account of other qualified
institutional buyers, understands that such Rule 144 Securities 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.
3.
The
Buyer warrants and represents to, and covenants with, the Transferor, the
Servicer and the Depositor that either (1) the Buyer is not an employee benefit
plan within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”) (“Plan”), or a plan within the
meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986 (the “Code”)
(also a “Plan”), and the Buyer is not directly or indirectly purchasing the Rule
144A Securities on behalf of, as investment manager of, as named fiduciary
of,
as trustee of, or with assets of a Plan, or (2) the Buyer has provided the
Trustee with the opinion letter required by section 5.02(c) of the Pooling
and
Servicing Agreement.
4.
This
document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same document.
G-3-2
IN
WITNESS WHEREOF, each of the parties has executed this document as of the date
set forth below.
|
________________________________
Print
Name of Transferor
|
________________________________
Print
Name of Buyer
|
|
|
|
|
By:
________________________________
Name:
Title:
|
By:
________________________________
Name:
Title:
|
|
Taxpayer
Identification:
No.
________________________________
Date:
_________________________
|
Taxpayer
Identification:
No.
________________________________
Date:
_________________________
|
G-3-3
ANNEX
1 TO EXHIBIT G-
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2.
In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Buyer 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 Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
|
____
|
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue
Code.
|
|
____
|
Bank.
The Buyer (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
statement, a copy of which is attached
hereto.
|
|
____
|
Savings
and Loan.
The Buyer (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.
|
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in
securities.
G-3-4
|
____
|
Broker-dealer.
The Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
|
|
____
|
Insurance
Company.
The Buyer 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 Buyer 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 Buyer is an employee benefit plan within the meaning of Title
I of the
Employee Retirement Income Security Act of
1974.
|
|
____
|
Investment
Adviser.
The Buyer is an investment adviser registered under the Investment
Advisers Act of 1940.
|
|
____
|
SBIC.
The Buyer is a Small Business Investment Company licensed by the
U.S.
Small Business Administration under Section 301(c) or (d) of the
Small
Business Investment Act of 1958.
|
|
____
|
Business
Development Company.
The Buyer is a business development company as defined in Section
202(a)(22) of the Investment Advisers Act of
1940.
|
|
____
|
Trust
Fund.
The Buyer is a trust fund whose trustee is a bank or trust company
and
whose participants are exclusively (a) plans 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,
or (b) employee benefit plans within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, but is not a trust
fund
that includes as participants individual retirement accounts or H.R.
10
plans.
|
3.
The
term “securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (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.
G-3-5
4.
For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer's direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5.
The
Buyer acknowledges that it is familiar with Rule 144A and understands that
the
seller to it 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
Buyer may be in reliance on Rule 144A.
|
___
|
___
|
Will the Buyer be purchasing the Rule 144A | |
|
Yes
|
No
|
Securities only for the Buyer's own account? | |
6.
If the
answer to the foregoing question is “no”, the Buyer agrees that, in connection
with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer
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 Buyer
agrees that the Buyer will not purchase securities for a third party unless
the
Buyer 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
Buyer 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 Buyer's purchase of Rule 144A Securities will constitute a reaffirmation
of
this certification as of the date of such purchase.
|
________________________________
Print
Name of Buyer
|
|
|
By:
________________________________
Name:
Title:
Date:
________________________________
|
G-3-6
ANNEX
2 TO EXHIBIT G-3
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers That Are Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2.
In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked
below, the Buyer alone, or the Buyer'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 Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's Family
of
Investment Companies, the cost of such securities was used.
|
____
|
The
Buyer owned $_______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
|
|
____
|
The
Buyer 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 Buyer'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
Buyer or are part of the Buyer's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps.
G-3-7
5.
The
Buyer is familiar with Rule 144A and understands that each of the parties to
which this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer's
own account.
6.
The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of
this
certification by the undersigned as of the date of such purchase.
|
________________________________
Print
Name of Buyer
|
|
|
By:
________________________________
Name:
Title:
|
|
|
IF
AN ADVISER:
|
|
|
________________________________
Print
Name of Buyer
|
|
|
Date:
________________________________
|
G-3-8
EXHIBIT
G-4
FORM
OF
TRANSFEROR CERTIFICATE
______________,
200__
Impac
Secured Assets Corp.
0000
Xxxx
Xxxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
[TRUSTEE]
Attention:
Impac Secured Assets Corp. Series 200_-_
|
|
Re:
|
Impac
Secured Assets Corp. Mortgage Pass-Through Certificates Series
200_-_, Class [R] ________
|
Ladies
and Gentlemen:
This
letter is delivered to you in connection with the sale by
________________________ (the “Sponsor”) to
_______________________________________ (the “Purchaser”) of a ____% Percentage
Interest in the Mortgage Pass-Through Certificates, Series 200_-_, Class [R]
“Certificates”), issued pursuant to Section 5.02 of the Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), dated as of ___________,
200_, among Impac Secured Assets Corp., as depositor (the “Depositor”), Impac
Funding Corporation, as master servicer and ___________, as trustee (the
“Trustee”). All terms used herein and not otherwise defined shall have the
meaning set forth in the Pooling and Servicing Agreement. The Sponsor hereby
certifies, represents and warrants to, and covenants with, the Depositor and
the
Trustee that:
1. No
purpose of the Sponsor relating to the sale of the Certificates by the Sponsor
to the Purchaser is or will be to impede the assessment or collection of any
tax.
2. The
Sponsor understands that the Purchaser has delivered to the Trustee and the
Master Servicer a transfer affidavit and agreement in the form attached to
the
Pooling and Servicing Agreement as Exhibit G-5. The Sponsor does not know or
believe that any representation contained therein is false.
3. The
Sponsor has at the time of the transfer conducted a reasonable investigation
of
the financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Sponsor
has determined that the Purchaser has historically paid its debts as they have
become due and has found no significant evidence to indicate that the Purchaser
will not continue to pay its debts as they become due in the future. The Sponsor
understands that the transfer of the Certificates may not be respected for
United States income tax purposes (and the Sponsor may continue to be liable
for
United States income taxes associated therewith) unless the Sponsor has
conducted such an investigation.
G-4-1
4. The
Sponsor has no actual knowledge that the proposed Transferee is a Disqualified
Organization, an agent of a Disqualified Organization or a Non-United States
Person.
|
Very
truly yours,
________________________________
(Sponsor)
|
|
|
By:
________________________________
Name________________________________
Title:
________________________________
|
G-4-2
EXHIBIT
G-5
FORM
OF
TRANSFER AFFIDAVIT AND AGREEMENT
|
STATE
OF
|
)
|
|
:ss.
|
|
|
COUNTY
OF
|
)
|
___________________,
being first duly sworn, deposes, represents and warrants:
1. That
he/she is [Title of Officer] of [Name of Owner], a [savings institution]
[corporation] duly organized and existing under the laws of [the State of
__________] [the United States], (the “Owner”), (record or beneficial owner of
the Class [R] Certificates (the “Class [R] Certificates”) on behalf of which
he/she makes this affidavit and agreement). This Class [R] Certificates were
issued pursuant to the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”) dated as of ____________, 200_ among Impac Secured Assets
Corp., as depositor, Impac Funding Corporation, as master servicer (the “Master
Servicer”) and ___________, as trustee (the “Trustee”).
2. That
the Owner (i) is not and will not be a “disqualified organization” as of
_____________ [date of transfer] within the meaning of Section 860E(e)(5) of
the
Internal Revenue Code of 1986, as amended (the “Code”), (ii) will endeavor to
remain other than a disqualified organization for so long as it retains its
ownership interest in the Class [R] Certificates, and (iii) is acquiring the
Class [R] Certificates for its own account or for the account of another Owner
from which it has received an affidavit and agreement in substantially the
same
form as this affidavit and agreement. (For this purpose, a “disqualified
organization” means the United States, any state or political subdivision
thereof, any agency or instrumentality of any of the foregoing (other than
an
instrumentality all of the activities of which are subject to tax and, except
for Xxxxxxx Mac, a majority of whose board of directors is not selected by
any
such governmental entity) or any foreign government, international organization
or any agency or instrumentality of such foreign government or organization,
any
rural electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax unless
such organization is subject to the tax on unrelated business taxable
income).
3. That
the Owner is aware (i) of the tax that would be imposed on transfers of Class
R
Certificates to disqualified organizations under the Code, that applies to
all
transfers of Class [R] Certificates after March 31, 1988; (ii) that such tax
would be on the transferor, or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a disqualified organization,
on the agent; (iii) that the person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such person
an
affidavit that the transferee is not a disqualified organization and, at the
time of transfer, such person does not have actual knowledge that the affidavit
is false; and (iv) that the Class [R] Certificates may be “noneconomic residual
interests” within the meaning of Treasury regulations promulgated pursuant to
the Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
unless no significant purpose of the transfer was to impede the assessment
or
collection of tax.
G-5-1
4. That
the Owner is aware of the tax imposed on a “pass-through entity” holding Class
[R] Certificates if at any time during the taxable year of the pass-through
entity a disqualified organization is the record holder of an interest in such
entity. (For this purpose, a “pass through entity” includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives.)
5. That
the Owner is aware that the Trustee will not register the transfer of any Class
[R] Certificates unless the transferee, or the transferee's agent, delivers
to
it an affidavit and agreement, among other things, in substantially the same
form as this affidavit and agreement. The Owner expressly agrees that it will
not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are
false.
6. That
the Owner has reviewed the restrictions set forth on the face of the Class
[R]
Certificates and the provisions of Section 5.02(f) of the Pooling and Servicing
Agreement under which the Class [R] Certificates were issued (in particular,
clause (iii)(A) and (iii)(B) of Section 5.02(f) which authorize the Trustee
to
deliver payments to a person other than the Owner and negotiate a mandatory
sale
by the Trustee in the event the Owner holds such Certificates in violation
of
Section 5.02(f)). The Owner expressly agrees to be bound by and to comply with
such restrictions and provisions.
7. That
the Owner consents to any additional restrictions or arrangements that shall
be
deemed necessary upon advice of counsel to constitute a reasonable arrangement
to ensure that the Class [R] Certificates will only be owned, directly or
indirectly, by an Owner that is not a disqualified organization.
8. The
Owner's Taxpayer Identification Number is ____________________.
9. This
affidavit and agreement relates only to the Class [R] Certificates held by
the
owner and not to any other holder of the Class [R] Certificates. The Owner
understands that the liabilities described herein relate only to the Class
[R]
Certificates.
10. That
no purpose of the Owner relating to the transfer of any of the Class [R]
Certificates by the Owner is or will be to impede the assessment or collection
of any tax.
11. That
the Owner has no present knowledge or expectation that it will be unable to
pay
any United States taxes owed by it so long as any of the Certificates remain
outstanding. In this regard, the Owner hereby represents to and for the benefit
of the person from whom it acquired the Class [R] Certificate that the Owner
intends to pay taxes associated with holding such Class [R] Certificate as
they
become due, fully understanding that it may incur tax liabilities in excess
of
any cash flows generated by the Class [R] Certificate.
G-5-2
12. That
the Owner has no present knowledge or expectation that it will become insolvent
or subject to a bankruptcy proceeding for so long as any of the Class [R]
Certificates remain outstanding.
13. The
Owner is a citizen or resident of the United States, a corporation, partnership
or other entity created or organized in, or under the laws of, the United States
or any political subdivision thereof, provided that with respect to any
partnership or other entity treated as a partnership for United States federal
income tax purposes, 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 required by the applicable operative agreement
to be United States Persons, or an estate or trust whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of
a
trade or business within the United States.
14. (a)
The Certificates (i) are not being acquired by, and will not be transferred
to,
any employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx
plans
and bank collective investment funds and insurance company general or separate
accounts in which such plans, accounts or arrangements are invested, that is
subject to ERISA or Section 4975 of the Internal Revenue Code of 1986 (the
“Code”) (any of the foregoing, a “Plan”), (ii) are not being acquired with “plan
assets” of a Plan within the meaning of the Department of Labor (“DOL”)
regulation, 29 C.F.R. § 2510.3-101 or otherwise under ERISA, and (iii) will not
be transferred to any entity that is deemed to be investing in plan assets
within the meaning of the DOL regulation, 29 C.F.R. § 2510.3-101 or otherwise
under ERISA; or
(b)
The
Owner will provide the Trustee with an opinion of counsel, as specified in
Section 5.02(c) of the Pooling and Servicing Agreement, 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 Trustee, the Depositor or the Master Servicer
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
addition, the Owner hereby certifies, represents and warrants to, and covenants
with, the Depositor, the Trustee and the Master Servicer that the Owner will
not
transfer such Certificates to any Plan or person unless either such Plan or
person meets the requirements set forth in either (a) or (b) above.
Capitalized
terms used but not defined herein shall have the meanings assigned in the
Pooling and Servicing Agreement.
G-5-3
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, by its [Title of Officer] and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this ______ day of
_____________, _____.
|
___________________________________________
|
||
|
[NAME
OF OWNER]
|
||
|
|
By:
________________________________________
[Name
of Officer]
[Title
of Officer]
|
|
|
[Corporate
Seal]
|
||
|
ATTEST:
|
||
|
________________________________
[Assistant]
Secretary
|
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 Owner, and acknowledged to me that such person executed the
same
as such person's free act and deed and the free act and deed of the
Owner.
Subscribed
and sworn before me this ____ day of ___________, 200__.
| ________________________________ | ||
|
NOTARY
PUBLIC
|
||
| COUNTY OF_________________________ | ||
| STATE OF___________________________ | ||
|
My
Commission expires the ____ day of __________,
200__.
|
EXHIBIT
H
MORTGAGE
LOAN SCHEDULE
H-1
EXHIBIT
I
SPONSOR
REPRESENTATIONS AND WARRANTIES
Sponsor
's Representations Assigned by Depositor to Trustee
Representations
and Warranties. Pursuant to the Mortgage Loan Purchase Agreement, the Sponsor
has made certain representations and warranties to the Depositor. The Sponsor
shall confirm such representations and warranties and shall deliver a Sponsor's
Warranty Certificate and an Officer's Certificate on the Closing Date (i)
reaffirming such representations and warranties and (ii) specifically restating
and reaffirming the following representations and warranties as of such date.
The following representations are, pursuant to the Pooling and Servicing
Agreement, assigned by the Depositor to the Trustee for the benefit of the
Certificateholders, together with the related repurchase rights specified in
the
Mortgage Loan Purchase Agreement. Pursuant to the Mortgage Loan Purchase
Agreement, the Sponsor's Warranty Certificate and related Officer's Certificate,
the Sponsor affirms each such representation and warranty and agrees, consents
to and acknowledges the assignment thereof to the Trustee. All capitalized
terms
herein shall have the meanings assigned in the Pooling and Servicing Agreement
and the Sponsor 's Warranty Certificate, as applicable.
The
Sponsor hereby represents and warrants to the Depositor and Trustee, as to
each
Mortgage Loan, that as of the Closing Date or as of such other date specifically
provided herein:
(i)
the
information set forth in the Mortgage Loan Schedule hereto is true and correct
in all material respects;
(ii)
the
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments, (i) if
required by law in the jurisdiction where the Mortgaged Property is located,
or
(ii) to protect the interests of the Trustee on behalf of the
Certificateholders;
(iii)
the
Mortgage File for each Mortgage Loan contains a true and complete copy of each
of the documents contained in such Mortgage File, including all amendments,
modifications and, if applicable, waivers and assumptions that have been
executed in connection with such Mortgage Loan;
(iv)
immediately prior to the transfer to the Purchaser, the Sponsor was the sole
owner of beneficial title and holder of each Mortgage and Mortgage Note relating
to the Mortgage Loans and is conveying the same free and clear of any and all
liens, claims, encumbrances, participation interests, equities, pledges, charges
or security interests of any nature and the Sponsor has full right and authority
to sell or assign the same pursuant to this Agreement;
(v)
each
Mortgage is a valid and enforceable first lien on the property securing the
related Mortgage Note and each Mortgaged Property is owned by the Mortgagor
in
fee simple (except with respect to common areas in the case of condominiums,
PUDs and de minimis PUDs) or by leasehold for a term longer than the term of
the
related Mortgage, subject only to (i) the lien of current real property taxes
and assessments, (ii) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of
such
Mortgage, such exceptions being acceptable to mortgage lending institutions
generally or specifically reflected in the appraisal obtained in connection
with
the origination of the related Mortgage Loan or referred to in the lender's
title insurance policy delivered to the originator of the related Mortgage
Loan
and (iii) other matters to which like properties are commonly subject which
do
not materially interfere with the benefits of the security intended to be
provided by such Mortgage;
I-1
(vi)
no
payment of principal of or interest on or in respect of any Mortgage Loan is
30
or more days past due;
(vii)
there is no mechanics' lien or claim for work, labor or material affecting
the
premises subject to any Mortgage which is or may be a lien prior to, or equal
with, the lien of such Mortgage except those which are insured against by the
title insurance policy referred to in (xii) below;
(viii)
as
of the Cut off Date, (i) no Mortgage Loan had been 30 days or more delinquent
more than once during the preceding 12 months, (ii) no Mortgage Loan had been
delinquent for 60 days or more during the preceding 12 months and (iii) to
Sponsor 's knowledge, there was no delinquent tax or assessment lien against
the
property subject to any Mortgage, except where such lien was being contested
in
good faith and a stay had been granted against levying on the
property;
(ix)
there is no valid offset, defense or counterclaim to any Mortgage Note or
Mortgage, including the obligation of the Mortgagor to pay the unpaid principal
and interest on such Mortgage Note;
(x)
to
Sponsor 's knowledge, except to the extent insurance is in place which will
over
such damage, the physical property subject to any Mortgage is free of material
damage and is in good repair and there is no proceeding pending or threatened
for the total or partial condemnation of any Mortgaged Property;
(xi)
each
Mortgage Loan complies in all material respects with applicable local, state
and
federal laws, including, without limitation, usury, equal credit opportunity,
real estate settlement procedures, the Federal Truth In Lending Act and
disclosure laws, including, but not limited to, any applicable predatory lending
laws. The consummation of the transactions contemplated hereby, including
without limitation, the receipt of interest by the owner of such Mortgage Loan
or the holders of Certificates secured thereby, will not involve the violation
of any such laws. Each Mortgage Loan is being serviced in all material respects
in accordance with applicable local, state and federal laws, including, without
limitation, the Federal Truth In Lending Act and other consumer protection
laws,
real estate settlement procedures, usury, equal credit opportunity and
disclosure laws;
I-2
(xii)
a lender's title insurance policy (on an ALTA or CLTA form) or
binder, or other assurance of title customary in the relevant jurisdiction
therefor in a form acceptable to Xxxxxx Xxx or Xxxxxxx Mac, was issued on
the
date that each Mortgage Loan was created by a title insurance company which,
to
the best of Sponsor's knowledge, was qualified to do business in the
jurisdiction where the related Mortgaged Property is located, insuring the
Sponsor and its successors and assigns that the Mortgage is a first priority
lien on the related Mortgaged Property in the original principal amount of
the
Mortgage Loan. Sponsor is the sole insured under such lender's title insurance
policy, and such policy, binder or assurance is valid and remains in full
force
and effect, and each such policy, binder or assurance shall contain all
applicable endorsements including a negative amortization endorsement, if
applicable;
(xiii)
in
the event the Mortgage constitutes a deed of trust, either a trustee, duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage or if no duly qualified
trustee has been properly designated and so serves, the Mortgage contains
satisfactory provisions for the appointment of such trustee by the holder of
the
Mortgage at no cost or expense to such holder, and no fees or expenses are
or
will become payable by Purchaser to the trustee under the deed of trust, except
in connection with a trustee's sale after default by the mortgagor;
(xiv)
(i)
the Loan-to-Value Ratio of each Mortgage Loan at origination was not more than
[___]%; (ii) except with regard to [___]% of the Mortgage Loans, each Mortgage
Loan with a Loan-to-Value Ratio at origination in excess of [____]% will be
insured by one of the following: (a) a Primary Insurance Policy issued by a
private mortgage insurer or (b) a Radian Lender-Paid PMI Policy. Each Primary
Insurance Policy will insure against default under each insured Mortgage Note
as
follows: (i) for which the outstanding principal balance at origination of
such
Mortgage Loan is greater than or equal to [____] % and up to and including
[____]% of the lesser of the Appraised Value and the sales price, such Mortgage
Loan is covered by a Primary Insurance Policy in an amount equal to at least
[____]% of the Allowable Claim and (ii) for which the outstanding principal
balance at origination of such Mortgage Loan exceeded 90.00% of the lesser
of
the Appraised Value and the sales price, such Mortgage Loan is covered by a
Primary Insurance Policy in an amount equal to at least [____]% of the Allowable
Claim. Each Radian Lender-Paid PMI Policy will insure against default under
each
insured Mortgage Note related to a covered Mortgage Loan as follows: (i) for
which the outstanding principal balance at origination of such Mortgage Loan
is
at least [____]% and up to and including [____]% of the lesser of the Appraised
Value and the sales price, such Mortgage Loan is covered by such Radian
Lender-Paid PMI Policy in an amount equal to at least [____]% of the Allowable
Claim and (ii) for which the outstanding principal balance at origination of
such Mortgage Loan is at least [____]% and up to and including [____]% of the
lesser of the Appraised Value and the sales price, such Mortgage Loan is covered
by such Radian Lender-Paid PMI Policy in an amount equal to at least [____]%
of
the Allowable Claim. The “Appraised Value” is the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan. The
“Allowable Claim” for any Mortgage Loan covered by a Primary Insurance Policy or
a Radian Lender-Paid PMI Policy is the current principal balance of such
Mortgage Loan plus accrued interest and allowable expenses at the time of the
claim;
I-3
(xv)
at
the time of origination, each Mortgaged Property was the subject of an
appraisal
which conforms to the Sponsor's underwriting requirements, and a complete
copy
of such appraisal is contained in the Mortgage File;
(xvi)
on
the basis of a representation by the borrower at the time of origination
of the
Mortgage Loans, at least [___]% of the Mortgage Loans (by aggregate principal
balance) will be secured by Mortgages on owner occupied primary residence
properties;
(xvii)
neither the Sponsor nor any servicer of the related Mortgage Loans has advanced
funds or knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required by
the
Mortgage, except for (i) interest accruing from the date of the related Mortgage
Note or date of disbursement of the Mortgage Loan proceeds, whichever is later,
to the date which precedes by 30 days the first Due Date under the related
Mortgage Note, and (ii) customary advances for insurance and taxes;
(xviii)
each Mortgage Note, the related Mortgage and other agreements executed in
connection therewith are genuine, and each is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance with its terms except
as such enforcement may be limited by bankruptcy, insolvency, reorganization
or
other similar laws affecting the enforcement of creditor's rights generally
and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law); and, to the best of Sponsor's
knowledge, all parties to each Mortgage Note and the Mortgage had legal capacity
to execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage has been duly and properly executed by the Mortgagor;
(xix)
to
the extent required under applicable law, each conduit seller and subsequent
mortgagee or servicer of the Mortgage Loans was authorized to transact and
do
business in the jurisdiction in which the related Mortgaged Property is located
at all times when it held or serviced the Mortgage Loan; and any obligations
of
the holder of the related Mortgage Note, Mortgage and other loan documents
have
been complied with in all material respects; servicing of each Mortgage Loan
has
been in accordance with the servicing standard set forth in Section 3.01 of
the
Pooling and Servicing Agreement and the terms of the Mortgage Notes, the
Mortgage and other loan documents, whether the creation of such Mortgage Loan
and servicing was done by the Sponsor, its affiliates, or any third party which
created the Mortgage Loan on behalf of, or sold the Mortgage Loan to, any of
them, or any servicing agent of any of the foregoing;
(xx)
the
related Mortgage Note and Mortgage contain customary and enforceable provisions
such as to render the rights and remedies of the holder adequate for the
realization against the Mortgaged Property of the benefits of the security,
including realization by judicial, or, if applicable, non judicial foreclosure,
and, to Sponsor 's knowledge, there is no homestead or other exemption available
to the Mortgagor which would interfere with such right to
foreclosure;
(xxi)
except with respect to holdbacks required by certain Mortgage Loans which
holdbacks create a fund for (i) the repair of Mortgaged Property due to damage
from adverse weather conditions, or (ii) the completion of new construction,
or
both, the proceeds of the Mortgage Loans have been fully disbursed, there is
no
requirement for future advances thereunder and any and all requirements as
to
completion of any on site or off site improvements and as to disbursements
of
any escrow funds therefor have been complied with; and all costs, fees and
expenses incurred in making, closing or recording the Mortgage Loan have been
paid, except recording fees with respect to Mortgages not recorded as of the
Closing Date;
I-4
(xxii)
as
of the Closing Date, the improvements on each Mortgaged Property securing a
Mortgage Loan is insured (by an insurer which is acceptable to the Sponsor)
against loss by fire and such hazards as are covered under a standard extended
coverage endorsement in the locale in which the Mortgaged Property is located,
in an amount which is not less than the lesser of the maximum insurable value
of
the improvements securing such Mortgage Loan or the outstanding principal
balance of the Mortgage Loan, but in no event in an amount less than an amount
that is required to prevent the Mortgagor from being deemed to be a co insurer
thereunder; if the improvement on the Mortgaged Property is a condominium unit,
it is included under the coverage afforded by a blanket policy for the
condominium project; if upon origination of the related Mortgage Loan, the
improvements on the Mortgaged Property were in an area identified as a federally
designated flood area, a flood insurance policy is in effect in an amount
representing coverage not less than the least of (i) the outstanding principal
balance of the Mortgage Loan, (ii) the restorable cost of improvements located
on such Mortgaged Property or (iii) the maximum coverage available under federal
law; and each Mortgage obligates the Mortgagor thereunder to maintain the
insurance referred to above at the Mortgagor's cost and expense;
(xxiii)
there is no monetary default existing under any Mortgage or the related Mortgage
Note and there is no material event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach or event of acceleration; and neither the Sponsor, any of its
affiliates nor any servicer of any related Mortgage Loan has taken any action
to
waive any default, breach or event of acceleration; no foreclosure action is
threatened or has been commenced with respect to the Mortgage Loan;
(xxiv)
to
Sponsor's knowledge, no Mortgagor, at the time of origination of the applicable
Mortgage, was a debtor in any state or federal bankruptcy or insolvency
proceeding;
(xxv)
each Mortgage Loan was originated or funded by (a) a savings and loan
association, savings bank, commercial bank, credit union, insurance company
or
similar institution which is supervised and examined by a federal or state
authority (or originated by (i) a subsidiary of any of the foregoing
institutions which subsidiary is actually supervised and examined by applicable
regulatory authorities or (ii) a mortgage loan correspondent of any of the
foregoing and that was originated pursuant to the criteria established by any
of
the foregoing) or (b) a mortgagee approved by the Secretary of Housing and
Urban
Development pursuant to sections 203 and 211 of the National Housing Act, as
amended;
(xxvi)
all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect
to
the use and occupancy of the same, including, but not limited to, certificates
of occupancy and fire underwriting certificates, have been made or obtained
from
the appropriate authorities;
I-5
(xxvii)
to Sponsor's knowledge, the Mortgaged Property and all improvements thereon
comply with all requirements of any applicable zoning and subdivision laws
and
ordinances;
(xxviii)
no instrument of release or waiver has been executed in connection with the
Mortgage Loans, and no Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement which has been approved by the
primary mortgage guaranty insurer, if any, and which has been delivered to
the
Trustee;
(xxix)
[Reserved]
(xxx)
no
Mortgage Loan was originated based on an appraisal of the related Mortgaged
Property made prior to completion of construction of the improvements thereon
unless a certificate of completion was obtained prior to closing of the Mortgage
Loan;
(xxxi)
each of the Mortgaged Properties consists of a single parcel of real property
with a detached single family residence erected thereon, or a two to four family
dwelling, or an individual condominium unit in a condominium project or a
townhouse, a condohotel, an individual unit in a PUD or an individual unit
in a
de minimis PUD;
(xxxii)
no Mortgaged Property consists of a single parcel of real property with a
cooperative housing development erected thereon. Any condominium unit, PUD
or de
minimis PUD conforms with Progressive Loan Series Program requirements regarding
such dwellings or is covered by a waiver confirming that such condominium unit,
PUD or de minimis PUD is acceptable to the Sponsor;
(xxxiii)
as of the Cut off Date, the Mortgage Rate of each Mortgage Loan was not less
than _____% per annum and not more than ____% per annum, and the weighted
average Mortgage Rate of the Mortgage Loans was approximately ____% per
annum;
(xxxiv)
measured by principal balance, no more than ____% of the Mortgage Loans are
secured by an individual unit in a condominium project or hi rise, at least
____% of the Mortgage Loans are secured by real property with two-to-four family
residences, at least ____% of the Mortgage Loans are secured by real properties
in planned unit developments, at least ____% of the Mortgage Loans are secured
by real property with a condominium erected thereon; and at least ____% of
the
Mortgage Loans are secured by real property with a detached single family
residence erected thereon, including de minimis PUDs;
(xxxv)
as
of the Cut off Date, the remaining term to scheduled maturity of each Mortgage
Loan is not less than ____ months and not more than ____ months;
(xxxvi)
as of the Cut off Date, no more than ____% (by aggregate principal balance)
of
the Mortgage Loans are cash out refinances;
(xxxvii)
as of the Cut off Date, no more than ____% (by aggregate principal balance)
of
the Mortgage Loans are rate and term refinances;
I-6
(xxxviii)
as of the Cut off Date, no fewer than ____% (by aggregate principal balance)
of
the Mortgage Loans are purchase money loans;
(xxxix)
as of the Cut off Date, no more than ____% and ____% of the Mortgage Loans
(by
aggregate principal balance) are secured by properties located in the states
of
California and Florida, respectively;
(xl)
as
of the Cut off Date, the principal balances of the Mortgage Loans range from
approximately $________ to approximately $_________, and the average unpaid
principal balance is $_________.
(xli)
with respect to Mortgaged Properties at the time of origination of the related
Mortgage Loans, measured by aggregate unpaid principal balance as of the Cut
off
Date, at least ____% of the Mortgaged Properties are owner occupied primary
residences, no more than ____% of the Mortgaged Properties are second homes
and
no more than ____% of the Mortgaged Properties are investor owned
properties;
(xlii)
as
of the Cut off Date, none of the Mortgage Loans (by aggregate principal balance)
are Buydown Mortgage Loans;
(xliii)
each Mortgage Loan constitutes a “qualified mortgage” under Section
860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G
2(a)(1);
(xliv)
with respect to each Mortgage Loan directly originated by the Sponsor (and
not
through a third party broker or other third party) as of the Closing Date,
to
the best of Sponsor's knowledge, there has been no fraud, misrepresentation
or
dishonesty with respect to the origination of any Mortgage Loan;
(xlv)
no
selection procedure reasonably believed by the Sponsor to be adverse to the
interests of the Certificateholders was utilized in selecting the Mortgage
Loans;
(xlvi)
no
Mortgage Loan is subject to the Home Ownership and Equity Protection Act of
1994
or any comparable state law;
(xlvii)
no proceeds from any Mortgage Loan were used to finance single premium credit
insurance policies;
(xlviii)
no Mortgage Loan provides for payment of a Prepayment Charge on Principal
Prepayments made more than five years from the date of the first contractual
Due
Date of the related Mortgage Loan; and
(xlix)
none of the Mortgage Loans is a “high cost home loan” as defined in the Georgia
Fair Lending Act, as amended (the “Georgia Act”), the New York Predatory Lending
Law, codified as N.Y. Banking Law §6 I, N.Y. Gen. Bus. Law §771 a, and N.Y. Real
Prop. Acts Law §1302 (together, the “New York Act”), the Arkansas Home Loan
Protection Act, as amended (the “Arkansas Act”), or Kentucky Revised Statutes
§360.100, as amended (the “Kentucky Act”); and all the Mortgage Loans that are
subject to the Georgia Act, the New York Act, the Arkansas Act and the Kentucky
Act comply with the requirements of each such act. Each Mortgage Loan for which
the related Mortgaged Property is located in the State of Georgia was originated
prior to October 1, 2002, or on or after March 9, 2003.
I-7
(l)
no
mortgage loan in the trust is a “high cost home,” “covered” (excluding home
loans defined as “covered home loans” in the New Jersey Home Ownership Security
Act of 2002 that were originated between November 26, 2003 and July 7, 2004),
“high risk home” or “predatory” loan under any other applicable state, federal
or local law (or a similarly classified loan using different terminology under
a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees).
(li)
no
subprime mortgage loan originated on or after October 1, 2002 underlying the
Security will impose a prepayment premium for a term in excess of three years.
Any loans originated prior to such date, and any non subprime loans, will not
impose prepayment penalties in excess of five years.
(lii)
the
servicer for each mortgage loan underlying the Security has fully furnished
and
will fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e., favorable
and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans Union
Credit Information Company (three of the credit repositories), on a monthly
basis.
(liii)
with respect to any mortgage loan originated on or after August 1, 2004 and
underlying the Security, neither the related mortgage nor the related mortgage
note requires the borrower to submit to arbitration to resolve any dispute
arising out of or relating in any way to the mortgage loan
transaction.
(liv)
No
mortgage loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the then current Standard & Poor's LEVELS® Glossary which is
now Version 5.6b Revised, Appendix E) and no mortgage loan originated on or
after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
(lv)
Information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements.
(lvi)
The
prepayment penalties included in the transaction are enforceable and were
originated in compliance with all applicable federal, state and local
laws.
(lvii)
The schedule of Prepayment Charges is true and correct.
I-8
EXHIBIT
J
FORM
OF
NOTICE UNDER SECTION 3.24 OF POOLING AND SERVICING
AGREEMENT
___________,
200_
[Addressee]
|
|
Re:
|
Impac
Secured Assets Corp.
Mortgage
Pass-Through Certificates
Series
200_-_____________________
|
Pursuant
to Section 3.25 of the Pooling and Servicing Agreement, dated as of
____________, 200_, relating to the Certificates referenced above, the
undersigned does hereby notify you that:
(a) The
prepayment assumption used in pricing the Certificates with respect to the
Mortgage Loans in Series 200_-_ consisted of a Prepayment Assumption (the
“Prepayment Assumption”) of ____% per annum.
(b) With
respect to each Class of Certificates comprising the captioned series, set
forth
below is (i), the first price, as a percentage of the Certificate Principal
Balance or Notional Amount of each Class of Certificates, at which 10% of the
aggregate Certificate Principal Balance or Notional Amount of each such Class
of
Certificates was first sold at a single price, if applicable, or (ii) if more
than 10% of a Class of Certificates have been sold but no single price is paid
for at least 10% of the aggregate Certificate Principal Balance or Notional
Amount of such Class of Certificates, then the weighted average price at which
the Certificates of such Class were sold expressed as a percentage of the
Certificate Principal Balance or Notional Amount of such Class of Certificates,
(iii) if less than 10% of the aggregate Certificate Principal Balance or
Notional Amount of a Class of Certificates has been sold, the purchase price
for
each such Class of Certificates paid by ___________ (the “Underwriter”),
expressed as a percentage of the Certificate Principal Balance or Notional
Amount of such Class of Certificates calculated by: (1) estimating the fair
market value of each such Class of Certificates as of ___________, 200_; (2)
adding such estimated fair market value to the aggregate purchase prices of
each
Class of Certificates described in clause (i) or (ii) above; (3) dividing each
of the fair market values determined in clause (1) by the sum obtained in clause
(2); (4) multiplying the quotient obtained for each Class of Certificates in
clause (3) by the purchase price paid by the Underwriters for all the
Certificates purchased by it; and (5) for each Class of Certificates, dividing
the product obtained from such Class of Certificates in clause (4) by the
initial Certificate Principal Balance or Notional Amount of such Class of
Certificates or (iv) the fair market value (but not less than zero) as of the
Closing Date of each Certificate of each Class of Certificates retained by
the
Depositor or an affiliate corporation, or delivered to the sponsor:
J-1
Series
200_-_
|
Class
A-1:
|
____%
|
|
Class
A-1M:
|
____%
|
|
Class
A-2A:
|
____%
|
|
Class
A-2B:
|
____%
|
|
Class
A-2C:
|
____%
|
|
Class
M-1:
|
____%
|
|
Class
M-2:
|
____%
|
|
Class
M-3:
|
____%
|
|
Class
M-4:
|
____%
|
|
Class
M-5:
|
____%
|
|
Class
M-6:
|
____%
|
|
Class
M-7:
|
____%
|
|
Class
M-8:
|
____%
|
|
Class
B:
|
____%
|
|
Class
C:
|
____%
|
|
Class
P:
|
____%
|
|
Class
R:
|
____%
|
J-2
The
prices and values set forth above do not include accrued interest with respect
to periods before the closing.
|
IMPAC
SECURED ASSETS CORP.
By:___________________________
Name:
Title:
|
EXHIBIT
K
IMPAC
FUNDING CORPORATION SERVICING GUIDE
(provided
upon request)
K-1
EXHIBIT
L-1
FORM
CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER
WITH
FORM
10-K
|
|
Re:
|
Impac
Secured Assets Corp., Mortgage
Pass-Through Certificates, Series 200_-_
|
I,
[identify the certifying individual], certify that:
1.
I have
reviewed this report on Form 10-K and all reports on Form 10-D required to
be
filed in respect of the period covered by this report on Form 10-K of [identify
the issuing entity] (the “Exchange Act periodic reports”);
2.
Based
on my knowledge, the Exchange Act periodic reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3.
Based
on my knowledge, all of the distribution, servicing and other information
required to be provided under Form 10-D for the period covered by this report
is
included in the Exchange Act periodic reports;
4.
[I am
responsible for reviewing the activities performed by the servicer(s) and based
on my knowledge and the compliance review(s) conducted in preparing the servicer
compliance statement(s) required in this report under Item 1123 of Regulation
AB, and except as disclosed in the Exchange Act periodic reports, the
servicer(s) [has/have] fulfilled [its/their] obligations under the servicing
agreement(s); and] [Based on my knowledge and the servicer compliance
statement(s) required in this report under Item 1123 of Regulation AB, and
except as disclosed in the Exchange Act periodic reports, the servicer(s)
[has/have] fulfilled [its/their] obligations under the servicing agreement(s);
and]
[Based
on
my knowledge and the servicer compliance statement(s) required in this report
under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act
periodic reports, the servicer(s) [has/have] fulfilled [its/their] obligations
under the servicing agreement(s); and]
5.
All of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
L-1-1
[In
giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties [name of servicer,
sub-servicer, co-servicer, depositor or trustee].]
Date:
. .
. . . . . . . . . . . .
_______________________
[Signature]
[Title]
X-0-0
XXXXXXX
X-0
FORM
CERTIFICATION TO BE
PROVIDED
TO MASTER SERVICER BY THE TRUSTEE
|
|
Re:
|
Impac
Secured Assets Corp.,
Mortgage
Pass-Through Certificates, Series
200_-_
|
I,
[Identify the certifying individual], a [______________] of ___________, as
Trustee, hereby certify to Impac Funding Corporation and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon
this
certification, that:
1. I
have reviewed the annual report on Form 10-K for the fiscal year [__], and
all
reports on Form 8-K containing distribution reports filed in respect of periods
included in the year covered by that annual report, of the Issuing Entity
relating to the above-referenced trust;
2. Based
on my knowledge, the information in these distribution reports prepared by
the
Trustee, taken as a whole, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made,
in
light of the circumstances under which such statements were made, not misleading
as of the last day of the period covered by that annual report; and
3. Based
on my knowledge, the distribution information required to be provided by the
Trustee under the Agreement is included in these distribution
reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated ___________, 200_ (the “Agreement”),
among Impac Secured Assets Corp., as Depositor, Impac Funding Corporation,
as
Master Servicer, ___________, as Trustee.
__________________________,
as
Trustee
By:__________________________
Name:
Title:
Date:
X-0-0
XXXXXXX
X-0
FORM
CERTIFICATION TO BE
PROVIDED
TO MASTER SERVICER BY THE TRUSTEE
|
|
Re:
|
Impac
Secured Assets Corp.,
Mortgage
Pass-Through Certificates, Series
200_-_
|
I,
[Identify the certifying individual], a [_________________] of ____________,
as
Trustee, hereby certify to Impac Funding Corporation and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon
this
certification, that:
1. Based
on my knowledge, the distribution information required to be provided by the
Trustee under the Agreement is included in these distribution
reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated _____________, 200_ (the “Agreement”),
among Impac Secured Assets Corp., as Depositor, Impac Funding Corporation,
as
Master Servicer and _____________, as Trustee.
__________________________,
as
Trustee
By:__________________________
Name:
Title:
Date:
X-0-0
XXXXXXX
X-0
FORM
OF
BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
Re: The
[ ]
agreement dated as of
[ ],
200[ ] (the “Agreement”), among [IDENTIFY PARTIES]
I,
________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Trustee], and their officers, with the knowledge and intent that they will
rely
upon this certification, that:
(1) I
have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the [Depositor] [Master
Servicer] [Trustee] pursuant to the Agreement (collectively, the “Company
Servicing Information”);
(2) Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the [Depositor]
[Master Servicer] [Trustee];
(4) I
am responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
L-4-1
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed to
the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
Date: _________________________
By:
Name:
________________________________
Title:
________________________________
L-4-2
EXHIBIT
M
FORM
OF
SWAP AGREEMENT
|
[Swap
Provider]
|
||
|
To:
|
__________________,
not in its individual capacity but solely as Supplemental Interest
Trust
Trustee on
behalf of the Supplemental Interest Trust
(“Party
B"
or “Counterparty”)
|
|
Attn:
|
Client
Manager - ISAC 200_-_
|
|
Fax
No:
|
|
|
From:
|
________________________
(“Party
A”
or “___________”)
|
|
Date:
|
___________
, 200_
|
|
Reference:
|
___________
|
Swap
Confirmation
The
purpose of this facsimile (this "Confirmation") is to confirm the terms and
conditions of the Transaction entered into between us on the Trade Date
specified below (the "Transaction"). This Confirmation supersedes any previous
Confirmation or other communication with respect to the Transaction and
evidences a complete and binding agreement between us as to the terms of the
Transaction. This Confirmation constitutes a "Confirmation" as referred to
in
the ISDA Master Agreement referred to below.
The
definitions and provisions contained in the 2000 ISDA Definitions (the “2000
Definitions”), as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”) are incorporated into this Confirmation. In the event
of any inconsistency between the 2000 Definitions and this Confirmation, this
Confirmation will govern for the purposes of the Transaction. References herein
to a “Transaction” shall be deemed to be references to a “Swap Transaction” for
the purposes of the 2000 Definitions. Capitalized terms used in this
Confirmation and not defined in this Confirmation or the 2000 Definitions shall
have the respective meaning assigned in the Pooling and Servicing Agreement
(the
“Pooling and Servicing Agreement”), dated as of ___________, 200_, among Impac
Secured Asset Corp., as Company, Impac Funding Corporation, as Master Servicer,
and ___________, as Trustee. Each party hereto agrees to make payment to the
other party hereto in accordance with the provisions of this Confirmation and
of
the Agreement. In this Confirmation, “Party A” means ___________ and “Party B”
means the Counterparty.
M-1
This
Confirmation supersedes any previous Confirmation or other communication with
respect to the Transaction and evidences a complete and binding agreement
between you and us as to the terms of the Swap Transaction to which this
Confirmation relates. This Confirmation is subject to the terms and conditions
of the ISDA Master Agreement dated as of ___________, 200_, between each of
Party A and Party B and shall form a part of and be subject to that ISDA Master
Agreement.
Each
party represents to the other party that (absent a written agreement between
the
parties that expressly imposes affirmative
obligations to the contrary): -
|
(a)
|
Non-Reliance.
It is acting for its own account, and it has made its own independent
decisions to enter into the Transaction and as to whether the Transaction
is appropriate or proper based upon its own judgement and upon advice
from
such advisers as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment
advice or
as a recommendation to enter into the Transaction: it being understood
that information and explanations related to the terms and conditions
of
the Transaction shall not be considered investment advice or a
recommendation to enter into the Transaction. No communication (written
or
oral) received from the other party shall be deemed to be an assurance
or
guarantee as to the expected results of the Transaction.
|
|
(b)
|
Assessment
and Understanding.
It is capable of assessing the merits of and understanding (on its
own
behalf or through independent professional advice), and understands
and
accepts, the terms, conditions and risks of the Transaction. It is
also
capable of assuming, and assumes, the risks of the Transaction.
|
|
(c)
|
Status
of Parties.
The other party is not acting as a fiduciary for or an adviser to
it in
respect of the Transaction.
|
The
terms of the particular Transaction to which this Confirmation relates are
as
follows:
Notional
Amount: For each Calculation Period, the Notional
Amount shall equal the lesser of:
(i)
the Scheduled Notional Amount for such Calculation Period as detailed in the
Schedule of Notional Amounts attached hereto, and
(ii)
the aggregate Certificate Principal Balance of the Impac Secured Assets Corp.,
Mortgage Pass-Through Certificates, Series 200_-_ as of the first day of the
relevant Calculation Period.
M-2
Trade
Date: ___________,
200_
Effective
Date: ___________,
200_
Termination
Date: ___________,
20__, subject to adjustment in accordance with the Business Day
Convention.
Fixed
Amounts:
Fixed
Rate Payer: Party
B
Upfront
Fee: USD___________
Upfront
Fee Payer
Payment
Date ___________,
20__
Fixed
Rate Payer
|
Payment
Dates:
|
The
25th
calendar day of each month during the Term of this Transaction, commencing
___________, 200_, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day Convention. Notwithstanding
the foregoing, Early Payment shall be applicable. For each Calculation
Period, the Fixed Rate Payer Payment Date shall be the first Business
Day
prior to the related Fixed Rate Payer Period End Date.
|
Fixed
Rate: For
each Calculation Period, shall equal the Fixed Rate for such Calculation Period
as detailed in the Schedule of Notional Amounts attached hereto.
Fixed
Rate Day
Count
Fraction: 30/360
Floating
Amounts:
Floating
Rate Payer: Party
A
Floating
Rate Payer
Payment
Dates:
The 25th calendar day of each month during the Term of this Transaction,
commencing ___________, 200_, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day convention. Notwithstanding
the
foregoing, Early Payment shall be applicable. For each Calculation Period,
the
Floating Rate Payer Payment Date shall be the first Business Day prior to the
related Floating Rate Payer Period End Date.
M-3
Floating
Rate for initial
Calculation
Period: to
be determined
Floating
Rate Option: USD-LIBOR-BBA
Designated
Maturity: One
month
Spread: None
Floating
Rate Day
Count
Fraction: Actual/360
Reset
Dates: The
first day of each Calculation Period.
Compounding: Inapplicable
Business
Days: New York
Business
Day
Convention: Following
Calculation
Agent: Party A
Governing
Law This
Transaction and this Confirmation will be governed by and construed in
accordance with the laws of the State of New York (without reference to choice
of law doctrine except Section 5-1401 and Section 5-1402 of the New York General
Obligation Law).
|
3.
|
Account
Details and
|
|
|
Settlement
Information:
|
Payments
to Party A:
|
|
|
Correspondent:
|
||
|
FEED:
|
||
|
Beneficiary:
|
||
|
Beneficiary
Account:
|
||
|
Payments
to Party B:
|
||
|
|
||
|
|
M-4
|
ABA#
|
____________
|
|
Acct.#
|
____________
|
|
Acct.
Name:
|
____________
|
|
FFC:
Acct.#
|
____________
|
The
time of dealing will be confirmed by Barclays upon written request. Barclays
is
regulated by the Financial Services Authority. Barclays is acting for its own
account in respect of this Transaction.
|
____________________
-------------------------------------
NAME
Authorised
Signatory
Date:
___________, 200_
|
For
and on behalf of
_____________,
not in its individual capacity but solely as Supplemental Interest
Trust
Trustee on
behalf of the Supplemental Interest Trust
-------------------------------------
NAME
Authorised
Signatory
Date:
___________, 200_
|
Barclays
Bank PLC and its Affiliates, including Barclays Capital Inc., may share with
each other information, including non-public credit information, concerning
its
clients and prospective clients. If you do not want such information to be
shared, you must write to the
______________________________________.
M-5
ISAC
200_-_ Swap Confirmation Signature Page
Schedule
A to
the Confirmation dated as of ___________, 200_
Re:
Reference Number ___________
*
All dates subject to adjustment in accordance with the Business Day
Convention
|
From
and including
|
To
but excluding
|
Scheduled
Notional Amount (USD)
|
Fixed
Rate (%)
|
|
|
Effective
Date
|
||||
M-6
[Rest
of Page Left Intentionally Blank]
M-7
SCHEDULE
to
the
Master
Agreement
dated
as of ___________,
200_
between
_________________,
a public limited company registered in ____________ ("Party A") and ___________,
not individually, but solely as Supplemental Interest Trust Trustee on behalf
of
the Supplemental Interest Trust with respect to Impac Secured Assets Corp.,
Mortgage Pass-Through Certificates, Series 200_-_,
a New York common law trust ("Party B").
Part
1
Termination
Provisions
In
this Agreement:
|
(a)
|
"Specified
Entity" means in relation to Party A for the purpose
of:
|
Section
5(a)(v), Not Applicable
Section
5(a)(vi), Not Applicable
Section
5(a)(vii), Not Applicable
Section
5(b)(iv), Not Applicable
in
relation to Party B for the purpose of:
Section
5(a)(v), Not Applicable
Section
5(a)(vi), Not Applicable
Section
5(a)(vii), Not Applicable
Section
5(b)(iv), Not Applicable
(b) "Specified
Transaction" is not applicable to Party A or Party B for any purpose, and,
accordingly, Section 5(a)(v) shall not apply to Party A or Party B.
(c) The
"Cross Default" provisions of Section 5(a)(vi) will not apply to Party A and
to
Party B.
M-8
(d) The
"Credit Event Upon Merger" provisions of Section 5(b)(iv) will not apply to
Party A or Party B.
(e) The
"Automatic Early Termination" provision of Section 6(a) will not apply to Party
A or to Party B.
(f) Payments
on Early Termination. For the purpose of Section 6(e) of this Agreement the
Second Method and Market Quotation will apply.
(g) "Termination
Currency" means United States Dollars.
(h) Ratings
Downgrade Event. It shall be a “Ratings Downgrade Event” if at any time:
Party
A’s short-term unsecured and unsubordinated debt rating (the “Short Term
Rating”) is reduced below “A-1” by S&P or Party A’s long-term unsecured and
unsubordinated debt rating (the “Long Term Rating”) is withdrawn or reduced
below “A+” by S&P
or
(ii)
if Party A has
a Long-Term Rating and a Short-Term Rating from Moody’s, Party A’s Long-Term
rating is withdrawn or reduced below A1 by Moody’s or Party A’ s Short-Term
rating is withdrawn or reduced below P-1 by Moody’s, or if Party A does not have
a Short-Term Rating from Moody’s, Party A’s Long Term Rating is withdrawn or
reduced below “Aa3” by Moody’s."
If
a Ratings Downgrade Event occurs, then, within ten (10) Business Days following
the Ratings Downgrade Event (unless, within ten (10) Business Days of such
Ratings Event, each of Standard and Poor’s, a Division of XxXxxx-Xxxx Companies,
Inc. (“S&P”), and Xxxxx’x Investors Service, Inc. (“Moody’s”) (each a
“Rating Agency”) has reconfirmed the rating of the Certificates which was in
effect immediately prior to such Ratings Event), Party A shall take one of
the
following three actions:
(a)
Replace
Itself:
Use its good faith efforts to find a party acceptable to Party B, which
acceptance, subject to the Rating Agency Condition, shall not be unreasonably
withheld, to whom all of Party A's interests and obligations under this
Agreement shall be assigned at no cost to Party B, and following which Party
A
shall be released from all further obligations under this
Agreement.
(b)
Obtain
a Guaranty:
Obtain a guaranty, subject to the Rating Agency Condition and at Party A’s
expense of Party A’s obligations under this Transaction from a third party that
meets or exceeds the Approved Ratings Threshold, in form and substance
or
(c)
Post
Collateral:
Post collateral, at Party A’ s expense, pursuant to the Credit Support Annex
Dated as of a date even herewith and subject to the Rating Agency
Condition..
M-9
(d)
Other
Arrangement with Ratings Agency Approval:
Establish any other arrangement satisfactory to the applicable Rating Agency
which will be sufficient to restore the immediately prior ratings of the
Certificates.
If
Party A has failed to take one of the aforementioned actions within ten (10)
Business Days of the Ratings Downgrade Event, then, at the option of Party
B,
such failure shall constitute an Additional Termination Event with Party A
as
the Affected Party.
(i) The
provisions of Sections 5(a)(ii), 5(a)(iii), 5(a)(iv), and 5(a)(vi) shall not
apply to Party A or Party B.
(j) With
respect to Party B, Section 5(a) (vii) (2) shall not apply to Party
B.
(k)
Additional
Termination Event. It shall be an Additional Termination Event if any amendment
and/or supplement to the Pooling and Servicing Agreement (or any other Basic
Document) is made without the prior written consent of Party A (such consent
not
to be unreasonably withheld), where such consent is required under the Pooling
and Servicing Agreement, if such amendment and/or supplement would: (a)
materially adversely affect any of Party A’s rights or obligations under this
Agreement; or (b) materially adversely impact the ability of Party B to fully
perform any of Party B’s obligations under this Agreement. In connection with
such Additional Termination Event, Party B shall be the sole Affected
Party.
Part
2
Tax
Representations
(a) Payer
Representations. For the purpose of Section 3(e) of this Agreement, Party A
and
Party B make the following representations:
It
is not required by any applicable law, as modified by the practice of any
relevant governmental revenue authority, of any Relevant Jurisdiction to make
any deduction or withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement)
to
be made by it to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any representations made
by
the other party pursuant to Section 3(f) of this Agreement, (ii) the
satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of
this
Agreement and the accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and
(iii)
the satisfaction of the agreement of the other party contained in Section 4(d)
of this Agreement, provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party does not deliver
a
form or document under Section 4(a)(iii) by reason of material prejudice of
its
legal or commercial position.
(b) Payee
Representations. For
the purpose of Section 3 (f) of this Agreement, Party A and Party B make the
following representations.
M-10
The
following representation applies to Party A: With respect to payments made
to
Barclays which are not effectively connected to the U.S.: It is a non-U.S.
branch of a foreign person for U.S. federal income tax purposes
With
respect to payments made to Barclays which are effectively connected to the
U.S.: Each payment received or to be received by it in connection with this
Agreement will be effectively connected with its conduct of a trade or business
in the U.S.
(ii) The
following representation applies to Party B: Party B represents that the
beneficial owner of payments made to it under this Agreement is a “U.S. person ”
(as that term is used in section 1.1441-4(a)(3)(ii) of the United States
Treasury Regulations) for United States federal income tax
purposes.
Part
3
Documents
to be delivered
For
the purpose of Section 4(a):
(1) Tax
forms, documents, or certificates to be delivered are:
|
Party
required to deliver
document
|
Form/Document/Certificate
|
Date
by which to be
delivered
|
|
Party
A and Party B
|
Any
document required or reasonably requested to allow the other party
to make
payments under the Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding at
a
reduced rate (so long as the completion, execution or submission
of such
form of document would not materially prejudice the legal or commercial
position of the party in receipt of such demand)
|
Promptly
after the earlier of (i) reasonable demand by either party or (ii)
learning that such form or document is
required
|
(2) Other
documents to be delivered are:
M-11
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
Covered
by
Section
3(d) Representation
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or any Credit Support Provider for it to execute
and
deliver the Agreement, the Confirmation contemplated thereunder,
and any
Credit Support Documents to which it is a party, and to evidence
the
authority of the delivering party or its Credit Support Provider
to
perform its obligations under such Agreement, Confirmations and/or
Credit
Support Document, as the case may be
|
As
of the execution of this Agreement and promptly at the request of
the
other party upon execution of a Confirmation
|
Yes
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party and any Credit
Support
Provider as to the incumbency and authority of the officers of the
party
and any Credit Support Provider for it signing this Agreement, any
Credit
Support Document, or any Confirmation
|
As
of the execution of this Agreement and promptly at the request of
the
other party upon execution of a Confirmation
|
Yes
|
|
Party
A and
Party
B
|
Legal
opinion(s) with respect to such party and any Credit Support Provider
for
it reasonably satisfactory in form and substance to the other
party
|
As
of the execution of this Agreement
|
No
|
|
Party
B
|
Copies
of closing documents delivered in connection with the issuance of
the
Certificates
|
Promptly
upon request of Party A
|
Yes
|
M-12
|
Party
B
|
Each
other report or other document required to be delivered by or to
Party B
under the terms of the Indenture, other than those required to be
delivered directly by the Trustee to Party A thereunder
|
Promptly
upon request by Party A, or with respect to any particular type of
report
or other document as to which Party A has previously made request
to
receive all reports or documents for that type, promptly upon delivery
or
receipt of such report or document by the Issuer
|
Yes
|
|
Party
B
|
A
copy of the unaudited consolidated financial statements of such party
and
its Credit Support Provider (if any), in each case for each fiscal
period
prepared in accordance with generally accepted accounting principles
in
the United States or in the country in which such party is
organized
|
Promptly
after request by the other party
|
Yes
|
Part
4
Miscellaneous
(a) Address
for Notices: For the purposes of Section 12(a) of this Agreement:
Address
for notices or communications to Party A:
Notices
should be sent to the address of the relevant branch set out in the relevant
Confirmation (as may be amended from time to time), provided that in the case
of
notices or communications relating to Section 5, 6, 7, 11 or 13 to, such notices
should be sent to:
Address:
Attention:
Facsimile
No.:
Telephone
No.:
(For
all purposes)
M-13
Address
for notices or communications to Party B:
Address:
Attention:
Fax.:
Tel.:
(For
all purposes)
(b) Process
Agent. For the purpose of Section 13(c):
Party
A appoints as its Process Agent: Not Applicable
Party
B appoints as its Process Agent: Not Applicable
(c) Offices.
The provisions of Section 10(a) will apply to this Agreement; Party B has no
Offices other than as set forth in the Notices Section and agrees that, for
purposes of Section 6(b) of this Agreement, it shall not in the future have
any
Office other than one in the United States.
(d) Multibranch
Party. For the purpose of Section 10(c) of this Agreement:
Party
A is a Multibranch Party and may act through its ____________
Offices.
Party
B is not a Multibranch Party
(e) Calculation
Agent. The Calculation Agent is Party A.
(f) Credit
Support Document. Details of any Credit Support Document.
Party
A: Not
Applicable.
Party
B: The
Pooling and Servicing Agreement.
All
Credit Support Documents shall be deemed to be incorporated into, and are hereby
made a part of, this Agreement, and this Agreement together with the Credit
Support Documents shall be deemed to constitute one swap agreement pursuant
to
11 U.S.C. Section 546(g) and 12 U.S.C. Section 1821(e)(8)(D)(vii).
(g) Credit
Support Provider.
Party
A: Not
Applicable
Party
B: Not
Applicable
M-14
(h) Governing
Law. This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York without reference to choice of law doctrine other than New
York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting
of Payments. Subparagraph
(ii) of Section 2(c) of this Agreement will apply.
(j) "Affiliate"
will have the meaning specified in Section 14 of this Agreement, provided that
Party B shall not have any Affiliates for purposes of this
Agreement.
Part
5
Other
Provisions
(a) Section
3 of the Agreement is hereby amended by adding at the end thereof the following
subsections (g) and (h)
(g) Relationship
Between Parties.
Each
party represents to the other party on the date on which it enters into a
Transaction that:--
(1)
Non Reliance. It
is not relying on any communications (whether written or oral) of the other
party as a recommendation or investment advice regarding that Transaction,
other
than the representations expressly made by that other party in this Agreement
or
in the Confirmation in respect of that Transaction.
(2)
Evaluation and Understanding.
(i)
It has the capacity to evaluate (internally or through independent professional
advice) that Transaction and has made its own decision to enter into that
Transaction; and
(ii)
It understands the terms, conditions and risks of that Transaction and is
willing to accept those terms and conditions and to assume (financially and
otherwise) those risks.
(3)
Eligible Contract Participant. It constitutes an “eligible contract participant”
as such term is defined in Section 1a(12) of the Commodity Exchange Act, as
amended.
(4)
Purpose. It
is entering into this Agreement and such other documentation for the purposes
of
managing its borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business.
M-15
(5)
Principal. It
is entering into this Agreement and such other documentation as principal,
and
not as agent or in any other capacity, fiduciary or otherwise.
(h)
The representations and agreements in Part 5 of this Schedule shall be deemed
representations and agreements for all purposes of this Agreement, including
without limitation Sections 3, 4, 5(a)(ii) and 5(a)(iv) hereof.
(b) Inconsistency.
In the event of any inconsistency between the provisions contained in this
Agreement and those contained in any of the definitions published by ISDA (the
“ISDA Definitions”), the provisions contained in this Agreement will prevail. In
the event of any inconsistency between the provisions contained in a
Confirmation and those contained in ISDA Definitions or the Agreement, the
provisions contained in such Confirmation shall prevail unless otherwise
specified in a Confirmation or other writing signed by the parties.
(c) Procedures
for Entering into Transactions. With respect to each Transaction entered into
pursuant to this Agreement, Party A will, as soon as practicable after the
Trade
Date thereof, send to Party B a Confirmation in such form as mutually agreed
upon by the parties. Party B will no later than three (3) Local Business Days
thereafter confirm the accuracy of, or request the correction of, such
Confirmation (in the latter case, indicating how it believes the terms of such
Confirmation should be correctly stated and such other terms which should be
added to, or deleted from, such Confirmation to make it correct). Party B is
required to sign and return the Confirmation promptly.
(d) Amendment;
Consent. Section 9(b) of the printed form Master Agreement is amended by adding
the following at the end of such Section:
No
amendment, modification or waiver in respect of this Master Agreement will
be
effective unless the Rating Agency Condition is satisfied.
(e) Additional
Transactions or Amendment to Current Transaction Absent Consent. No Transaction
between Party A and Party B (other than the Transactions relating to the
Certificates originally entered into in connection with the execution of this
Agreement) shall be entered into, nor shall any amendment, modification or
waiver in respect of any such Transaction or the Confirmation thereof be entered
into unless the Rating Agency Condition is satisfied.
(f) Non-Petition.
Party A hereby irrevocably and unconditionally agrees that it will not institute
against, or join any other person in instituting against, Party B, any
bankruptcy, reorganization, arrangement, insolvency, or similar proceeding
under
the laws of the United States, the Cayman Islands or any other jurisdiction
for
the non-payment of any amount due hereunder or any other reason until the
payment in full of the Certificates and the expiration of a period of one year
plus one day (or, if longer, the applicable preference period) following such
payment. Nothing herein shall prevent Party A from participating in any such
proceeding once commenced.
M-16
(g) Severability.
If any term, provision, covenant, or condition of this Agreement, or the
application thereof to any party or circumstance, shall be held to be invalid
or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the parties as
to
the subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(h) Consent
to Recording. Each
party hereto consents to the monitoring or recording, at any time and from
time
to time, by the other party of any and all communications between officers
or
employees of the parties and waives any further notice of such monitoring or
recording.
(i) Waiver
of Jury Trial. Each
party waives any right it may have to a trial by jury in respect of any
Proceedings relating to this Agreement or any Credit Support Document.
(j) Transfer.
Section 7 is hereby deleted in its entirety and replaced by the
following:
“Subject
to Section 6(b)(ii) of the Agreement, and except as expressly provided in this
Agreement, neither this Agreement, any interest or obligation in or under this
Agreement, nor any Transaction may be transferred or assigned by either party
without the prior written consent of the other party and, in the case of a
transfer or assignment by Party A, the Rating Agency Condition being satisfied
(other than pursuant to a consolidation or amalgamation with, or merger into,
or
transfer of all or substantially all of such party’s assets to, or
reorganization, incorporation, reincorporation, or reconstitution into or as,
another entity).”
(k) No
Set-Off. Notwithstanding any provision of this Agreement (other than the second
sentence of this paragraph) or any other existing or future agreement, each
party irrevocably waives any and all rights it may have to set off, net, recoup
or otherwise withhold or suspend or condition payment or performance of any
obligation between it and the other party hereunder against any obligation
between it and the other party under any other agreements (except for the
Indenture or any applicable Transaction Document or Section 8 of this Agreement
(to the extent that Section 8(c) of this Agreement is applicable)). For the
avoidance of doubt, (i) the foregoing shall not be construed to limit any right
of the parties under this Agreement in respect of Sections 2(a)(iii) or any
other right arising under this Agreement to net amounts payable under this
Agreement, whether under Section 2, Section 6, Section 11 or otherwise, and
(ii)
the Set-Off Provision of Section 6(e) shall not be applicable.
(l) Additional
Definitional Provisions.
M-17
(i)
As used in this Agreement, the following terms shall have the meanings set
forth
below, unless the context clearly requires otherwise:
“Rating
Agency Condition” means, with respect to any particular proposed act or omission
to act hereunder, the party acting or failing to act having consulted with
each
of the Rating Agencies then providing a rating of the Certificates and having
received from the Rating Agencies a written confirmation that the proposed
action or inaction would not cause a downgrading or withdrawal of the
then-current rating of the Certificates.
“Moody’s”
means Xxxxx’x Investors Service, Inc., or any successor.
“Rating
Agencies” means each of Moody’s and S&P.
“S&P”
means Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., or
any successor thereto.
(n) Amendment
to ISDA Form. The “Failure to Pay or Deliver” provision in Section 5(a)(i) of
the Agreement is hereby amended by deleting the word “third” in the third line
thereof and inserting the word “first” in place thereof.
(o) Limitation
of Liability. It is expressly understood and agreed by the parties hereto that
(a) this Agreement is executed and delivered by __________________, not
individually or personally but solely as the Supplemental Interest Trust Trustee
for Party B in the exercise of the powers and authority conferred and vested
in
it, (b) the representations, undertakings and agreements herein made on the
part
of Party B are made and intended not as personal representations, undertakings
and agreements by _______________ but are made and intended for the purpose
of
binding only Party B, (c) nothing herein contained shall be construed as
creating any liability on __________, individually or personally, to perform
any
covenant either expressed or implied contained herein, all such liability,
if
any, being expressly waived by the parties who are signatories to this Agreement
and by any person claiming by, through or under such parties and (d) absent
its
willful misconduct or gross negligence with respect to its obligations under
the
Pooling and Servicing Agreement, under no circumstances shall ____________
be
liable for the payment of any indebtedness or expenses of Party B or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by Party B under this Agreement.
M-18
IN
WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
| [SWAP PROVIDER | |
| By:_______________________________ | |
|
Name:
|
|
|
Title:
|
|
|
Date:
___________, 200_
|
________________,
not individually, but solely as Supplemental Interest Trust Trustee on behalf
of
the Supplemental Interest Trust with respect to Impac Secured Assets Corp.,
Mortgage Pass-Through Certificates, Series 200_-_
| By:_______________________________ | |
|
Name:
|
|
|
Title:
|
|
|
___________,
200_
|
|
ISAC
200_-_ ISDA Master Agreement Schedule
M-19
Elections
and Variables
to
the ISDA Credit Support Annex
dated
as of ___________, 200_
between
|
[SWAP
PROVIDER]
|
and
|
____________,
not individually, but solely as Supplemental Interest Trust Trustee
on
behalf of the Supplemental Interest Trust with respect to Impac Secured
Assets Corp., Mortgage Pass-Through Certificates, Series
200_-_
|
|
("Party
A")
|
("Party
B")
|
Paragraph
13.
Security
Interest for "Obligations".
The term "Obligations"
as used in this Annex includes the following additional
obligations:
With
respect to Party A: None.
With
respect to Party B: None.
Credit
Support Obligations.
Delivery
Amount, Return Amount and Credit Support Amount.
"Delivery
Amount"
has the meaning specified in Paragraph 3(a) , except that the words “upon a
demand made by the Secured Party on or promptly following a Valuation Date”
shall be deleted and replaced with the words “not later than the close of
business on the next Local Business Day following a Valuation Date”;
and.
"Return
Amount"
has the meaning specified in Paragraph 3(b).
"Credit
Support Amount".
shall not have the meaning specified in Paragraph 3(b) and, instead, will have
the following meaning:
“Credit
Support Amount” means, (a) for any Valuation Date on which a Ratings Event (as
defined in the Agreement) has occurred and is continuing, the Secured Party’s
Modified Exposure for that Valuation Date.
Eligible
Credit Support.
On any date, the following items will qualify as "Eligible
Credit Support"
for each party:
M-20
|
Valuation
Percentage
|
||
|
cash
in U.S Dollars
|
100%
|
|
|
negotiable
debt obligations issued after 18 July 1984 by the U.S. Treasury Department
having a residual maturity on such date of less than 1 year (with
local
and foreign currency issuer ratings of Moody's Aa2 and S&P AA or
above)
|
98.9%
|
|
|
negotiable
debt obligations issued after 18 July 1984 by the U.S. Treasury Department
having a residual maturity on such date equal to or greater than
1 year
but less than 5 years (with local and foreign currency issuer ratings
of
Moody's Aa2 and S&P AA or above)
|
To
Be Determined
|
|
|
negotiable
debt obligations issued after l8 July 1984 by the U.S. Treasury Department
having a residual maturity on such date equal to or greater than
5 years
but less than 10 years (with local and foreign currency issuer ratings
of
Moody's Aa2 and S&P AA or above)
|
To
Be Determined
|
|
|
negotiable
debt obligations of the Government National Mortgage Association,
the
Federal National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Student Loan Marketing Association or a Federal
Home Loan
Bank (all entities rated Xxxxx'x Aal and S&P AA+ or above) with a
residual maturity on such date equal to or greater than 1 year but
less
than 3 years.
|
To
Be Determined
|
|
|
negotiable
debt obligations of the Government National Mortgage Association,
the
Federal National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Student Loan Marketing Association or a Federal
Home Loan
Bank (all entries rated Xxxxx'x Xx 1 and S&P AA+ or above) with a
residual maturity on such date equal to or greater than 3 years but
less
than 5 years.
|
To
Be Determined
|
M-21
|
negotiable
debt obligations of the Government National Mortgage Association,
the
Federal National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Student Lo an Marketing Association or a Federal
Home
Loan Bank (all entries rated Moody's Aal and S&P AA+ or above) with a
residual maturity on such date equal to or greater than 5 years but
less
than 7 years.
|
To
Be Determined
|
|
|
negotiable
debt obligations of the Government National Mortgage Association,
the
Federal National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the Student Loan Marketing Association or a Federal
Home Loan
Bank (all entries rated Xxxxx'x Aal and S&P AA+ or above) with a
residual maturity on such date equal to or greater than 7 years but
less
than 10 years.
|
To
Be Determined
|
For
the avoidance of doubt, where negotiable debt obligations are rated by only
one
of the above relevant rating agencies, the rating applied will be based on
the
rating of that agency. Notwithstanding the foregoing, the Eligible Collateral
referenced above may only be posted if S&P has assigned a rating to such
Eligible Collateral.
Where
the ratings of the relevant agencies differ with respect to the same negotiable
debt obligation, the lower of the ratings shall apply.
In
addition, upon a Ratings Event, Party A shall agree the Valuation Percentage
in
relation to (C) through (H) above with the relevant rating agency, which shall
be S&P, Xxxxx'x and Fitch (to the extent such ratings agency has provided a
rating for the underlying Certificates); provided,
however,
that if Party A is required to post collateral in accordance with the terms
of
this Agreement it shall post only (A) and (B) above until such time as the
Valuation Percentages are agreed.
Other
Eligible Support.
Such Other Eligible Support as the Pledgor may designate; provided,
at the expense of the Pledgor, the prior written consent of the relevant rating
agency, which shall be S&P, Xxxxx'x and Fitch (to the extent such ratings
agency has provided a rating for the underlying Certificates)), shall have
been
obtained. For the avoidance of doubt there are no items which qualify as Other
Eligible Support as of the date of this Annex.
Thresholds.
"Independent
Amount" means
zero.
"Threshold"
means
for Party A:
M-22
infinity,
unless (i) a Ratings Event occurs and is continuing and (ii) Party A has not
otherwise complied with Part 1(h) of this Agreement, then its Threshold shall
be
zero, or
in
the event that Party A has otherwise complied with Part 1(h)of this Agreement,
its Threshold shall continue to be infinity.
"Threshold"
means, for Party B: infinity
"Minimum
Transfer Amount" means
USD 100,000, provided,
however,
with respect to the Secured Party at any time when the Secured Party is a
Defaulting Party, "Minimum Transfer Amount" means zero.
Rounding:
The Delivery Amount and the Return Amount will not be rounded.
Valuation
and Timing.
"Valuation
Agent"
means Party A. The valuation agent's calculations shall be made in accordance
with market practices using commonly accepted third party sources such as
Bloomberg or Reuters.
"Valuation
Date" means
each Local Business Day which, if treated as a Valuation Date, would result
in a
Delivery Amount or Return Amount.
"Valuation
Time" means
the close of business in the city of the Valuation Agent on the Local Business
Day before the Valuation Date or date of calculation, as applicable,
provided
that the calculations of Value and Exposure will be made as of approximately
the
same time on the same date.
"Notification
Time" means
11:00 a.m. , New York time, on a Local Business Day.
Conditions
Precedent and Secured Party's Rights and Remedies.
The following Termination Event will be a "Specified
Condition"
for the party specified (that party being the Affected Party if the Termination
Event occurs with respect to that party): None.
Substitution.
"Substitution
Date"
has the meaning specified in Paragraph 4(d)(ii).
Consent.
Not applicable.
Dispute
Resolution.
"Resolution
Time"
means 1:00 p.m. New York time on the Local Business Day following the date
on
which the notice of the dispute is given under Paragraph 5.
M-23
Value.
For the purpose of Paragraphs 5(i)(C) and 5(ii), on any date, the Value of
Eligible Credit Support will be calculated as follows:
For
Eligible Credit Support comprised of cash, the amount of such cash.
For
Eligible Collateral comprising securities; the sum of (a)(x) the last bid price
on such date for such securities on the principal national securities exchange
on which such securities are listed, multiplied by the applicable Valuation
Percentage or (y) where any such securities are not listed on a national
securities exchange, the bid price for such securities quoted as at the close
of
business on such date by any principal market maker for such securities chosen
by the Valuation Agent, multiplied by the applicable Valuation Percentage or
(z)
if no such bid price is listed or quoted for such date, the last bid price
listed or quoted (as the case may be), as of the day next preceding such date
on
which such prices were available; multiplied by the applicable Valuation
Percentage; plus (b) the accrued interest on such securities (except to the
extent that such interest shall have been paid to the Pledgor pursuant to
Paragraph 6(d)(ii) or included in the applicable price referred to in
subparagraph (a) above) as of such date.
Alternative.
The provisions of Paragraph 5 will apply; provided
that the obligation of the appropriate party to deliver the undisputed amount
to
the other party will not arise prior to the time that would otherwise have
applied to the Transfer pursuant to, or deemed made, under Paragraph 3 if no
dispute had arisen.
Holding
and Using Posted Collateral.
Eligibility
to Hold Posted Collateral; Custodians.
Party
B is not and will not be entitled to hold Posted Collateral. Party B's Custodian
will be entitled to hold Posted Collateral pursuant to Paragraph 6(b);
provided
that
the Custodian for Party B shall be the same banking institution that acts as
Indenture Trustee for the Notes (as defined in the Indenture) for Party
B.
Initially,
the Custodian for Party B is ____________________, not in its individual
capacity, but solely as Indenture Trustee under the Indenture.
Use
of Posted Collateral.
The provisions of Paragraph 6(c) will not apply to Party B; therefore, Party
B
will not have any of the rights specified in Paragraph 6(c)(i) or 6 (c)(ii);
provided,
however,
that the Trustee shall invest Cash Posted Credit Support in such investments
as
designated by Party A, with losses (net of gains) incurred in respect of such
investments to be for the account of Party A. The Secured Party is authorized
to
liquidate any Posted Credit Support pursuant to written instructions from Party
A.
Distributions
and Interest Amount.
Interest
Rate.
The "Interest
Rate
" will be the rate earned on Cash Posted Credit Support pursuant to clause
(g)(ii) above.
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on each Distribution
Date.
M-24
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will not apply.
Additional
Representation(s).
There
are no additional representations by either party.
Other
Eligible Support and Other Posted Support.
"Value"
with respect to Other Eligible Support and Other Posted Support shall have
such
meaning as the parties shall agree in writing from time to time.
"Transfer"
with respect to Other Eligible Support and Other Posted Support shall have
such
meaning as the parties shall agree in writing from time to time.
Demands
and Notices.
All
demands, specifications and notices under this Annex will be made pursuant
to
the Notices Section of this Agreement, save that any demand, specification
or
notice:
shall
be given to or made at the following addresses:
If
to Party A:
[Address]
Attention:
Facsimile
No.:
Telephone
No.:
with
a copy to:
[Address]
Notices
to Party A shall not be deemed effective unless delivered to the___________
address set forth above.
If
to Party B:
[Address]
Attention:
Fax.:
Tel.:
M-25
or
at such other address as the relevant party may from time to time designate
by
giving notice (in accordance with the terms of this paragraph) to the other
party;
shall
(unless otherwise stated in this Annex) be deemed to be effective at the time
such notice is actually received unless such notice is received on a day which
is not a Local Business Day or after the Notification Time on any Local Business
Day in which event such notice shall be deemed to be effective on the next
succeeding Local Business Day.
Address
for Transfers.
Party
B:
[Address]
ABA#
Acct.#
Acct.
Name:
FFC:
Acct.#
Other
Provisions.
Additional
Definitions.
As used in this Annex:
"Local
Business Day"
means: (i) any day on which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in ____________
and
the location of the Trustee, and (ii) in relation to a Transfer of Eligible
Credit Support, a day on which the clearance system agreed between the parties
for the delivery of Eligible Credit Support is open for acceptance and execution
of settlement instructions (or in the case of a Transfer of Cash or other
Eligible Credit Support for which delivery is contemplated by other means,
a day
on which commercial banks are open for business (including dealings for foreign
exchange and foreign deposits) in New York and such other places as the parties
shall agree).
Holding
Collateral.
The Secured Party shall cause any Custodian appointed hereunder to open and
maintain a segregated account and to hold, record and identify all the Posted
Collateral in such segregated account and, subject to Paragraph 8(a), such
Posted Collateral shall at all times be and remain the property of the Pledgor
and shall at no time constitute the property of, or be commingled with the
property of, the Secured Party or the Custodian.
M-26
Agreement
as to Single Secured Party and Pledgor.
Party A and Party B agree that, notwithstanding anything to the contrary in
this
Annex, (a) the term "Secured Party" as used in this Annex means only Party
B,
(b) the term "Pledgor" as used in this Annex means only Party A, (c) only Party
A makes the pledge and grant in Paragraph 2, the acknowledgement in the final
sentence of Paragraph 8(a) and the representations in Paragraph 9 and
(d) Party A shall have no obligations under this Annex other than during a
Collateral Requirement Period.
Form
of Annex. The
parties hereby agree that the text of the body of this Annex is intended to
be
the printed form of ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject to New York Law version) as published and copyrighted by the
International Swaps and Derivatives Association, Inc.
Exposure.
The
Parties agree that in the event of a Ratings Event relating to an action taken
by S&P, the Valuation Agent shall verify its calculation of the Secured
Party’s Exposure on a weekly basis but shall verify such valuation by seeking
two quotations from Reference Market-makers at the end of each quarter. For
the
avoidance of doubt, the Valuation Agent must (i) obtain at least 2 Market
Quotations (as stated above) and (ii) may not obtain the quotations referred
to
above from the same Reference Market-maker in excess of four times during any
12
month period. Furthermore, the Exposure valuations should reflect the higher
of
two bids from Reference Market-makers that would be eligible and willing to
provide the market quoation in the absence of the current provider. The
collateral requirement should be based on the greater of the internal and
external market quoations. In the event the verification procedures set forth
above indicate that there is a deficiency in the amount of Eligible Collateral
that has been posted to the Secured Party, the Pledgor shall post the amount
of
Eligible Collateral necessary to cure such deficiency to the Secured Party
within three Local Business Days.
Expenses.
Notwithstanding Paragraph 10, the Pledgor will be responsible for, and will
reimburse the Secured Party for, all transfer and other taxes and other costs
involved in the transfer of Eligible Collateral.
(viii)
Additional
Definitions.
As used in this Annex:
“Ratings
Event”
means a “Ratings Event ” (as defined in the Agreement).
“Modified
Exposure”
means, for any Valuation Date, an amount equal to the greater of (a) the sum
of
Secured Party's Exposure for that Valuation Date plus
(the Notional Volatility
Buffer multiplied
by the Notional Amount) and (b) zero.
“Notional
Volatility Buffer”
as determined by the Valuation Agent for any date, means the outstanding
Notional Amount of the Transaction on such date multiplied by the relevant
percentage for such date as set out in the table below on such date.
M-27
|
Party
A S&P Rating on
such
date
|
Less
than or
equal
to 5
years
to
Termination
Date
of the
Transaction
|
Less
than or equal to
10
years but greater
than
5 years to
Termination
Date of
the
Transaction
|
|
S-T
Rating of A-2
|
||
|
S-T
Rating of A-3
|
||
|
L-T
Rating of BB+ or lower
|
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
|
[SWAP
PROVIDER]
|
____________,
not individually, but solely as Supplemental Interest Trust Trustee
on
behalf of the Supplemental Interest Trust with respect to Impac Secured
Assets Corp., Mortgage Pass-Through Certificates, Series
200_-_
|
|
By: _____________________________
Name:
Title:
Date:
____________, 200_
|
By:
Name:
Title:
Date:
____________, 200_
|
M-28
EXHIBIT
N
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
(RMBS
unless otherwise noted)
|
Definitions
|
Key:
|
|
Primary
Servicer
-
transaction party having borrower contact
|
X
-
obligation
|
|
Master
Servicer
-
aggregator of pool assets
|
[X]
-
under consideration for obligation
|
|
Trustee
-
waterfall calculator (may be the Master Servicer)
|
|
|
Back-up
Servicer
-
named in the transaction (in the event a Back up Servicer
|
|
|
becomes
the Primary Servicer, follow Primary Servicer obligations)
|
|
|
Custodian
-
safe keeper of pool assets
|
|
|
Paying
Agent
-
distributor of funds to ultimate investor
|
|
|
Trustee
-
fiduciary of the transaction
|
"Note:
The definitions above describe the essential function that the party performs,
rather than the party's title. So, for example, in a particular transaction,
the
trustee may perform the "paying agent" and "securities administrator" functions,
while in another transaction, the securities administrator may perform these
functions."
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
|
Reg
AB
Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
|
General
Servicing Considerations
|
||||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
X
(Sec.
9.01)
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|||||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
X
|
|||
|
Cash
Collection and Administration
|
||||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
X
|
N-1
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
X
|
X
(Sec.
8.01)
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
[X]
|
X
|
|||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
||||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
X
|
X
|
|
|
Investor
Remittances and Reporting
|
||||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
X
|
N-2
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
X
|
X
|
|
|
Pool
Asset Administration
|
||||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
|||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
|||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
X
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
X
|
||||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
X
|
|||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
X
|
|||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
N-3
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
X
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
|||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X
|
N-4
EXHIBIT
O
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party
shall
be primarily responsible for reporting the information to the Securities
Administrator pursuant to Section 3.25(a)(iv). If the Securities Administrator
is indicated below as to any item, then the Securities Administrator is
primarily responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “6.07 statement” are required to be
included in the periodic Distribution Date statement under Section 6.07,
provided by the Securities Administrator based on information received from
the
Master Servicer; and b) items marked “Form 10-D report” are required to be in
the Form 10-D report but not the 6.07 statement, provided by the party
indicated. Information under all other Items of Form 10-D is to be included
in
the Form 10-D report.
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
|
10-D
|
Must
be filed within 15 days of the distribution date for the asset-backed
securities.
|
|||||||||||
|
1
|
Distribution
and Pool Performance Information
|
|||||||||||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
||||||||||||
|
(1)
Any applicable record dates, accrual dates, determination dates
for
calculating distributions and actual distribution dates for the
distribution period.
|
X
|
|||||||||||
|
(2)
Cash flows received and the sources thereof for distributions,
fees and
expenses.
|
X
|
|||||||||||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
X
|
|||||||||||
O-1
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
X
|
||||||||||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of
the general
purpose of such payments and the party receiving such
payments.
|
X
|
||||||||||
|
(iii)
Principal, interest and other distributions accrued and paid on
the
asset-backed securities by type and by class or series and any
principal
or interest shortfalls or carryovers.
|
X
|
||||||||||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
X
|
||||||||||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
X
|
O-2
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
X
|
||||||||||
|
(6)
Beginning and ending balances of transaction accounts, such as
reserve
accounts, and material account activity during the period.
|
X
|
||||||||||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
X
|
||||||||||
|
(8)
Number and amount of pool assets at the beginning and ending of
each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term,
pool
factors and prepayment amounts.
|
X
|
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
|||||||||
|
(9)
Delinquency and loss information for the period.
|
X
|
O-3
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
X
|
||||||||||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
X
|
||||||||||
|
(11)
Any material modifications, extensions or waivers to pool asset
terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
X
|
||||||||||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
X
(subject
to Depositor approval)
|
||||||||||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
X
|
O-4
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
|
X
|
||||||||||
|
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such
as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
|
X
|
||||||||||
|
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
X
|
O-5
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
X
|
||||||||||
|
2
|
Legal
Proceedings
|
||||||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
|
|||||||||||
|
Sponsor
(Seller)
|
X
|
||||||||||
|
Depositor
|
X
|
||||||||||
|
Trustee
|
X
|
||||||||||
|
Issuing
entity
|
X
|
||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
||||||||||
|
Certificate
Administrator
|
X
|
||||||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
||||||||||
|
Custodian
|
X
|
||||||||||
|
3
|
Sales
of Securities and Use of Proceeds
|
O-6
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
X
|
||||||||||
|
4
|
Defaults
Upon Senior Securities
|
||||||||||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
X
|
||||||||||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
||||||||||
|
Information
from Item 4 of Part II of Form 10-Q
|
X
|
||||||||||
|
6
|
Significant
Obligors of Pool Assets
|
O-7
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
Item
1112(b) - Significant
Obligor Financial Information*
|
X
|
||||||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|||||||||||
|
7
|
Significant
Enhancement Provider Information
|
||||||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|||||||||||
|
Determining
applicable disclosure threshold
|
X
|
||||||||||
|
Obtaining
required financial information or effecting incorporation by
reference
|
X
|
||||||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|||||||||||
|
Determining
current maximum probable exposure
|
X
|
||||||||||
|
Determining
current significance percentage
|
X
|
||||||||||
|
Obtaining
required financial information or effecting incorporation by
reference
|
X
|
O-8
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|||||||||||||
|
8
|
Other
Information
|
||||||||||||
|
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
The Responsible Party for the applicable Form 8-K item as indicated below. | ||||||||||||
|
9
|
Exhibits
|
||||||||||||
|
Distribution
report
|
X
|
||||||||||||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
X
|
||||||||||||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||||||||||||
|
1.01
|
Entry
into a Material Definitive Agreement
|
||||||||||||
|
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
X
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
||||||||
O-9
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
1.02
|
Termination
of a Material Definitive Agreement
|
||||||||||
|
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
|||||||||||
|
1.03
|
Bankruptcy
or Receivership
|
||||||||||
|
Disclosure
is required regarding the bankruptcy or receivership, if known
to the
Master Servicer, with respect to any of the following:
Sponsor
(Seller), Depositor, Master Servicer, affiliated Servicer, other
Servicer
servicing 20% or more of pool assets at time of report, other material
servicers, Certificate Administrator, Trustee, significant obligor,
credit
enhancer (10% or more), derivatives counterparty,
Custodian
|
X
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
O-10
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
||||||||||
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the 6.07 statement
|
X
|
||||||||||
|
3.03
|
Material
Modification to Rights of Security Holders
|
||||||||||
|
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
X
|
||||||||||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||||||||||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
X
|
||||||||||
|
5.06
|
Change
in Shell Company Status
|
O-11
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
[Not
applicable to ABS issuers]
|
X
|
||||||||||
|
6.01
|
ABS
Informational and Computational Material
|
||||||||||
|
[Not
included in reports to be filed under Section 3.18]
|
X
|
||||||||||
|
6.02
|
Change
of Servicer or Trustee
|
||||||||||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers, certificate
administrator or trustee. Reg AB disclosure about any new servicer
or
trustee is also required.
|
X
|
X
|
|||||||||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
||||||||||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider is also
required.
|
X
|
X
|
|||||||||
|
6.04
|
Failure
to Make a Required Distribution
|
X
|
O-12
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
|
6.05
|
Securities
Act Updating Disclosure
|
|||||||||||
|
If
any material pool characteristic differs by 5% or more at the
time of
issuance of the securities from the description in the final
prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
X
|
|||||||||||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
X
|
|||||||||||
|
7.01
|
Regulation
FD Disclosure
|
X
|
||||||||||
|
8.01
|
Other
Events
|
|||||||||||
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
X
|
|||||||||||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event.
|
||||||||||
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
|||||||||||
|
9B
|
Other
Information
|
|||||||||||
|
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above.
|
|||||||||||
O-13
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
15
|
Exhibits
and Financial Statement Schedules
|
||||||||||
|
Item
1112(b) - Significant
Obligor Financial Information
|
X
|
||||||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
|
|||||||||||
|
Determining
applicable disclosure threshold
|
X
|
||||||||||
|
Obtaining
required financial information or effecting incorporation by
reference
|
X
|
||||||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information
|
|||||||||||
|
Determining
current maximum probable exposure
|
X
|
||||||||||
|
Determining
current significance percentage
|
X
|
||||||||||
|
Obtaining
required financial information or effecting incorporation by
reference
|
X
|
||||||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
|
O-14
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
Sponsor
(Seller)
|
X
|
||||||||||
|
Depositor
|
X
|
||||||||||
|
Trustee
|
X
|
||||||||||
|
Issuing
entity
|
X
|
||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
||||||||||
|
Certificate
Administrator
|
X
|
||||||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
||||||||||
|
Custodian
|
X
|
||||||||||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
|
|||||||||||
|
Sponsor
(Seller)
|
X
|
||||||||||
|
Depositor
|
X
|
||||||||||
|
Trustee
|
X
|
||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
||||||||||
|
Certificate
Administrator
|
X
|
||||||||||
|
Originator
|
X
|
||||||||||
|
Custodian
|
X
|
O-15
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Custodian
|
Paying
Agent
|
Trustee
|
6.07
statement
|
Depositor
|
Sponsor
|
Certificate
Administrator
|
|
Credit
Enhancer/Support Provider
|
X
|
||||||||||
|
Significant
Obligor
|
X
|
||||||||||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
X
|
X
|
X
|
X
|
|||||||
|
Item
1123 - Servicer Compliance Statement
|
X
|
X
|
O-16
