================================================================================
IMPAC SECURED ASSETS CORP.,
Company,
IMPAC FUNDING CORPORATION
Master Servicer,
and
wells fargo bank, n.a.
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of December 31, 2004
________________________
Mortgage Pass-Through Certificates
Series 2004-4
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TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.............................................................................................5
Section 1.01. Defined Terms..........................................................................5
Accrual Period..............................................................................................5
Adjustment Date.............................................................................................5
Advance.....................................................................................................5
Affiliate...................................................................................................5
Aggregate Stated Principal Balance..........................................................................5
Agreement...................................................................................................5
Allocated Realized Loss Amount..............................................................................5
Assignment..................................................................................................5
Available Distribution Amount...............................................................................6
Bankruptcy Code.............................................................................................6
Basic Principal Distribution Amount.........................................................................6
Book-Entry Certificate......................................................................................6
Business Day................................................................................................6
Cash Liquidation............................................................................................6
Certificate.................................................................................................6
Certificate Account.........................................................................................6
Certificate Account Deposit Date............................................................................7
Certificateholder...........................................................................................7
Certificate Owner...........................................................................................7
Certificate Principal Balance...............................................................................7
Certificate Register........................................................................................7
Class.......................................................................................................7
Class 1-A Corridor Contract.................................................................................8
Class 1-A Net WAC Rate......................................................................................8
Class 1-A Principal Distribution Amount.....................................................................8
Class 1-A Principal Distribution Target Amount..............................................................8
Class 1-A-1 Certificate.....................................................................................8
Class 1-A-2 Certificate.....................................................................................8
Class 1-A-3 Certificate.....................................................................................8
Class 2-A Certificate.......................................................................................8
Class 2-A Corridor Contract.................................................................................8
Class 2-A Net WAC Rate......................................................................................9
Class 2-A Principal Distribution Amount.....................................................................9
Class 2-A Principal Distribution Target Amount..............................................................9
Class 2-A-1 Certificate.....................................................................................9
Class 2-A-2 Certificate.....................................................................................9
Class A Principal Distribution Target Amount................................................................9
Class A Certificate........................................................................................10
Class B Certificate........................................................................................10
Class B Principal Distribution Amount......................................................................10
Class C Certificate........................................................................................11
Class C Interest...........................................................................................11
Class M-1 Certificate......................................................................................11
Class M-1 Principal Distribution Amount....................................................................11
Class M-2 Certificate......................................................................................11
Class M-2 Principal Distribution Amount....................................................................11
Class M-3 Certificate......................................................................................12
Class M-3 Principal Distribution Amount....................................................................12
Class M-4 Certificate......................................................................................13
Class M-4 Principal Distribution Amount....................................................................13
Class M-5 Certificate......................................................................................14
Class M-5 Principal Distribution Amount....................................................................14
Class P Certificate........................................................................................15
Class P Interest...........................................................................................15
Class R Certificate........................................................................................15
Class R-X Certificate......................................................................................15
Class R-1 Interest.........................................................................................15
Class R-2 Interest.........................................................................................15
Class R-3 Interest.........................................................................................15
Class R-4 Interest.........................................................................................15
Closing Date...............................................................................................15
Code.......................................................................................................15
Collateral Value...........................................................................................15
Commission.................................................................................................15
Company....................................................................................................15
Compensating Interest......................................................................................15
Corporate Trust Office.....................................................................................16
Corresponding Certificate..................................................................................16
Corridor Contract..........................................................................................16
Corridor Contract Provider.................................................................................16
Corridor Contract Payment Amount...........................................................................16
Credit Enhancement Percentage..............................................................................16
Custodial Account..........................................................................................16
Custodial Agreement........................................................................................16
Custodian..................................................................................................17
Cut-off Date...............................................................................................17
Cut-off Date Balance.......................................................................................17
Defaulted Mortgage Loan....................................................................................17
Deficiency Amount..........................................................................................17
Deficient Valuation........................................................................................17
Definitive Certificate.....................................................................................17
Deleted Mortgage Loan......................................................................................17
Depository.................................................................................................17
Depository Participant.....................................................................................18
Determination Date.........................................................................................18
ii
Disqualified Organization..................................................................................18
Distribution Date..........................................................................................18
Due Date...................................................................................................18
Due Period.................................................................................................18
Eligible Account...........................................................................................18
Event of Default...........................................................................................19
Excess Proceeds............................................................................................19
Exchange Act...............................................................................................19
Extra Principal Distribution Amount........................................................................19
Fannie Mae.................................................................................................19
FDIC.......................................................................................................19
Final Scheduled Distribution Date..........................................................................19
Freddie Mac................................................................................................19
GMAC.......................................................................................................19
GMAC Mortgage Loans........................................................................................19
Gross Margin...............................................................................................19
Group 1 Loan...............................................................................................19
Group 2 Loan...............................................................................................19
Group 2 Sequential Trigger Event...........................................................................20
Index......................................................................................................20
Initial Certificate Principal Balance......................................................................20
Initial Notional Amount....................................................................................20
Insurance Policy...........................................................................................20
Insurance Proceeds.........................................................................................20
Interest Remittance Amount.................................................................................20
Late Collections...........................................................................................20
LIBOR......................................................................................................20
LIBOR Business Day.........................................................................................20
LIBOR Rate Adjustment Date.................................................................................21
Liquidated Mortgage Loan...................................................................................21
Liquidation Proceeds.......................................................................................21
Loan-to-Value Ratio........................................................................................21
Loan Group.................................................................................................21
Loan Group 1...............................................................................................21
Loan Group 2...............................................................................................21
Loan Group Excess Cashflow Allocation Amount...............................................................21
Lost Note Affidavit........................................................................................21
Majority Class C Certificateholder.........................................................................21
Marker Rate................................................................................................21
Master Servicer............................................................................................22
Master Servicer Prepayment Charge Payment Amount...........................................................22
Master Servicing Fees......................................................................................22
Master Servicing Fee Rate..................................................................................22
Maximum Uncertificated Accrued Interest Deferral Amount....................................................23
MERS.......................................................................................................23
MERS(R) System.............................................................................................23
iii
Mezzanine Certificate......................................................................................23
Mezzanine Corridor Contract................................................................................23
Mezzanine Net WAC Rate.....................................................................................24
MIN........................................................................................................24
MOM Loan...................................................................................................24
Monthly Interest Distributable Amount......................................................................24
Monthly Payment............................................................................................24
Monthly Strike Rate........................................................................................24
Moody's....................................................................................................24
Mortgage...................................................................................................24
Mortgage File..............................................................................................24
Mortgage Loan..............................................................................................24
Mortgage Loan Purchase Agreement...........................................................................25
Mortgage Loan Schedule.....................................................................................25
Mortgage Note..............................................................................................26
Mortgage Rate..............................................................................................26
Mortgaged Property.........................................................................................26
Mortgagor..................................................................................................26
Net Liquidation Proceeds...................................................................................26
Net Monthly Excess Cashflow................................................................................26
Net Mortgage Rate..........................................................................................26
Net Prepayment Interest Shortfall..........................................................................26
Net WAC Rate...............................................................................................27
Net WAC Shortfall Amount...................................................................................27
Net WAC Shortfall Reserve Fund.............................................................................27
Net WAC Shortfall Reserve Fund Deposit.....................................................................27
Nonrecoverable Advance.....................................................................................27
Non-United States Person...................................................................................27
Officers' Certificate......................................................................................27
One Month LIBOR............................................................................................27
Opinion of Counsel.........................................................................................27
Optional Termination Date..................................................................................28
OTS........................................................................................................28
Outstanding Mortgage Loan..................................................................................28
Overcollateralization Deficiency Amount....................................................................28
Overcollateralization Floor................................................................................28
Overcollateralization Target Amount........................................................................28
Overcollateralization Target Percentage....................................................................28
Overcollateralized Amount..................................................................................28
Ownership Interest.........................................................................................28
Pass-Through Rate..........................................................................................28
Percentage Interest........................................................................................30
Permitted Investment.......................................................................................30
Permitted Transferee.......................................................................................31
Person.....................................................................................................31
Prepayment Assumption......................................................................................32
iv
Prepayment Charge..........................................................................................32
Prepayment Interest Excess.................................................................................32
Prepayment Interest Shortfall..............................................................................32
Prepayment Period..........................................................................................32
Primary Hazard Insurance Policy............................................................................32
Primary Insurance Policy...................................................................................32
Principal Distribution Amount..............................................................................32
Principal Prepayment.......................................................................................32
Principal Prepayment in Full...............................................................................33
Principal Remittance Amount................................................................................33
Prospectus Supplement......................................................................................33
Purchase Price.............................................................................................33
Qualified Insurer..........................................................................................33
Qualified Substitute Mortgage Loan.........................................................................33
Radian.....................................................................................................34
Radian Insured Loans.......................................................................................34
Radian Lender-Paid PMI Policy..............................................................................34
Radian PMI Policy Rate.....................................................................................34
Rating Agency..............................................................................................34
Realized Loss..............................................................................................34
Record Date................................................................................................35
Regular Certificate........................................................................................35
Relief Act.................................................................................................35
Relief Act Interest Shortfall..............................................................................35
REMIC......................................................................................................35
REMIC 1....................................................................................................35
REMIC 1 Interest Loss Allocation Amount....................................................................35
REMIC 1 Marker Allocation Percentage.......................................................................35
REMIC 1 Overcollateralized Amount..........................................................................36
REMIC 1 Principal Loss Allocation Amount...................................................................36
REMIC 1 Overcollateralization Target Amount................................................................36
REMIC 1 Regular Interest AA................................................................................36
REMIC 1 Regular Interest 1-A-1.............................................................................36
REMIC 1 Regular Interest 1-A-2.............................................................................37
REMIC 1 Regular Interest 1-A-3.............................................................................37
REMIC 1 Regular Interest 2-A-1.............................................................................37
REMIC 1 Regular Interest 2-A-2.............................................................................37
REMIC 1 Regular Interest M-1...............................................................................37
REMIC 1 Regular Interest M-2...............................................................................37
REMIC 1 Regular Interest M-3...............................................................................37
REMIC 1 Regular Interest M-4...............................................................................38
REMIC 1 Regular Interest M-5...............................................................................38
REMIC 1 Regular Interest B.................................................................................38
REMIC 1 Regular Interest 1A................................................................................38
REMIC 1 Regular Interest 1B................................................................................38
REMIC 1 Regular Interest 2A................................................................................38
v
REMIC 1 Regular Interest 2B................................................................................39
REMIC 1 Regular Interest XX................................................................................39
REMIC 1 Regular Interest P.................................................................................39
REMIC 1 Regular Interest ZZ................................................................................39
REMIC 1 Regular Interests..................................................................................39
REMIC 1 Subordinated Balance Ratio.........................................................................39
REMIC 1 Sub WAC Allocation Percentage......................................................................39
REMIC 2....................................................................................................40
REMIC 2 Certificate........................................................................................40
REMIC 2 Certificateholder..................................................................................40
REMIC 2 Regular Interest...................................................................................40
REMIC 3....................................................................................................40
REMIC 4....................................................................................................40
REMIC 4 Certificate........................................................................................40
REMIC Provisions...........................................................................................40
REMIC Regular Interest.....................................................................................40
Remittance Report..........................................................................................40
REO Acquisition............................................................................................40
REO Disposition............................................................................................40
REO Imputed Interest.......................................................................................41
REO Proceeds...............................................................................................41
REO Property...............................................................................................41
Request for Release........................................................................................41
Residual Interest..........................................................................................41
Responsible Officer........................................................................................41
Seller.....................................................................................................41
Servicing Account..........................................................................................41
Servicing Advances.........................................................................................41
Servicing Guide............................................................................................42
Servicing Officer..........................................................................................42
Single Certificate.........................................................................................42
Standard & Poor's..........................................................................................42
Startup Day................................................................................................42
Stated Principal Balance...................................................................................42
Step-Up Date...............................................................................................42
Stepdown Date..............................................................................................42
Subsequent Recoveries......................................................................................43
Sub-Servicer...............................................................................................43
Sub-Servicer Remittance Date...............................................................................43
Sub-Servicing Account......................................................................................43
Sub-Servicing Agreement....................................................................................43
Sub-Servicing Fees.........................................................................................43
Sub-Servicing Fee Rate.....................................................................................43
Substitution Adjustment....................................................................................43
Tax Returns................................................................................................44
Transfer...................................................................................................44
vi
Transferor.................................................................................................44
Trigger Event..............................................................................................44
Trust Fund.................................................................................................44
Trustee....................................................................................................44
Uncertificated Accrued Interest............................................................................45
Uncertificated Notional Balance............................................................................45
Uncertificated Principal Balance...........................................................................45
Uncertificated REMIC 1 Pass-Through Rate...................................................................45
Uninsured Cause............................................................................................46
United States Person.......................................................................................46
Unpaid Interest Shortfall Amount...........................................................................46
Voting Rights..............................................................................................46
Wells Fargo Mortgage Loans.................................................................................46
Weighted Average Net Mortgage Rate.........................................................................47
Section 1.02. Determination of LIBOR................................................................47
Section 1.03. Allocation of Certain Interest Shortfalls.............................................48
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES.......................................50
Section 2.01. Conveyance of Mortgage Loans..........................................................50
Section 2.02. Acceptance of the Trust Fund by the Trustee...........................................53
Section 2.03. Representations, Warranties and Covenants of the Master Servicer and the Company......55
Section 2.04. Representations and Warranties of the Seller..........................................57
Section 2.05. Issuance of Certificates; Conveyance of REMIC 1 Regular Interests, Class C Interest,
Class P Interest and Acceptance of REMIC 2, REMIC 3 and REMIC 4 by the Trustee........58
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND.......................................................61
Section 3.01. Master Servicer to Act as Master Servicer.............................................61
Section 3.02. Sub-Servicing Agreements Between Master Servicer and Sub-Servicers....................63
Section 3.03. Successor Sub-Servicers...............................................................64
Section 3.04. Liability of the Master Servicer......................................................64
Section 3.05. No Contractual Relationship Between Sub-Servicers and Trustee or Certificateholders...64
Section 3.06. Assumption or Termination of Sub-Servicing Agreements by Trustee......................65
Section 3.07. Collection of Certain Mortgage Loan Payments..........................................65
Section 3.08. Sub-Servicing Accounts................................................................66
Section 3.09. Collection of Taxes, Assessments and Similar Items; Servicing Accounts................67
Section 3.10. Custodial Account.....................................................................67
Section 3.11. Permitted Withdrawals From the Custodial Account......................................68
Section 3.12. Permitted Investments.................................................................69
vii
Section 3.13. Maintenance of Primary Hazard Insurance...............................................70
Section 3.14. Enforcement of Due-on-Sale Clauses; Assumption Agreements.............................72
Section 3.15. Realization Upon Defaulted Mortgage Loans.............................................73
Section 3.16. Trustee to Cooperate; Release of Mortgage Files.......................................74
Section 3.17. Servicing Compensation................................................................75
Section 3.18. Maintenance of Certain Servicing Policies.............................................76
Section 3.19. Annual Statement as to Compliance.....................................................76
Section 3.20. Annual Independent Public Accountants' Servicing Statement............................77
Section 3.21. Access to Certain Documentation.......................................................78
Section 3.22. Title, Conservation and Disposition of REO Property...................................78
Section 3.23. Additional Obligations of the Master Servicer.........................................80
Section 3.24. Additional Obligations of the Company.................................................81
Section 3.25. Exchange Act Reporting................................................................81
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS........................................................................84
Section 4.01. Distributions.........................................................................84
Section 4.02. Statements to Certificateholders......................................................89
Section 4.03. Remittance Reports; Advances by the Master Servicer...................................91
Section 4.04. Distributions on the REMIC 1 Regular Interests........................................93
Section 4.05. Allocation of Realized Losses.........................................................94
Section 4.06. Information Reports to Be Filed by the Master Servicer................................96
Section 4.07. Compliance with Withholding Requirements..............................................96
Section 4.08. Net WAC Shortfall Reserve Fund........................................................97
ARTICLE V THE CERTIFICATES.......................................................................................98
Section 5.01. The Certificates......................................................................98
Section 5.02. Registration of Transfer and Exchange of Certificates.................................99
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates....................................104
Section 5.04. Persons Deemed Owners................................................................105
Section 5.05. Rule 144A Information................................................................105
ARTICLE VI THE COMPANY AND THE MASTER SERVICER..................................................................106
Section 6.01. Liability of the Company and the Master Servicer.....................................106
Section 6.02. Merger, Consolidation or Conversion of the Company or the Master Servicer............106
Section 6.03. Limitation on Liability of the Company, the Master Servicer and Others...............106
Section 6.04. Limitation on Resignation of the Master Servicer.....................................107
Section 6.05. Sale and Assignment of Master Servicing..............................................107
viii
ARTICLE VII DEFAULT.............................................................................................109
Section 7.01. Events of Default....................................................................109
Section 7.02. Trustee to Act; Appointment of Successor.............................................111
Section 7.03. Notification to Certificateholders...................................................112
Section 7.04. Waiver of Events of Default..........................................................112
Section 7.05. List of Certificateholders...........................................................113
ARTICLE VIII CONCERNING THE TRUSTEE.............................................................................114
Section 8.01. Duties of Trustee....................................................................114
Section 8.02. Certain Matters Affecting the Trustee................................................115
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans................................117
Section 8.04. Trustee May Own Certificates.........................................................117
Section 8.05. Trustee's Fees.......................................................................117
Section 8.06. Eligibility Requirements for Trustee.................................................118
Section 8.07. Resignation and Removal of the Trustee...............................................118
Section 8.08. Successor Trustee....................................................................119
Section 8.09. Merger or Consolidation of Trustee...................................................119
Section 8.10. Appointment of Co-Trustee or Separate Trustee........................................120
ARTICLE IX TERMINATION..........................................................................................122
Section 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans or upon Purchase of
Certificates.........................................................................122
Section 9.02. Termination of REMIC 2...............................................................124
Section 9.03. Additional Termination Requirements..................................................124
ARTICLE X REMIC PROVISIONS......................................................................................126
Section 10.01. REMIC Administration.................................................................126
Section 10.02. Prohibited Transactions and Activities...............................................129
Section 10.03. Master Servicer and Trustee Indemnification..........................................129
ARTICLE XI MISCELLANEOUS PROVISIONS.............................................................................130
Section 11.01. Amendment............................................................................130
Section 11.02. Recordation of Agreement; Counterparts...............................................131
Section 11.03. Limitation on Rights of Certificateholders...........................................131
Section 11.04. Governing Law........................................................................132
Section 11.05. Notices..............................................................................132
Section 11.06. Severability of Provisions...........................................................133
Section 11.07. Successors and Assigns...............................................................133
Section 11.08. Article and Section Headings.........................................................133
Section 11.09. Notice to Rating Agencies............................................................133
ix
Signatures
Acknowledgments
Exhibit A Form of Class A Certificate
Exhibit B-1 Form of Class [M][B] 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 B-5 Form of Class R-X 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 Seller 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)
x
This Pooling and Servicing Agreement, dated and effective as of
December 31, 2004, is entered into among Impac Secured Assets Corp., as company
(the "Company"), Impac Funding Corporation, as master servicer (the "Master
Servicer"), and Wells Fargo Bank, N.A., as trustee (the "Trustee").
PRELIMINARY STATEMENT:
The Company 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 fifteen classes of
certificates, designated as (i) the Class 1-A-1 Certificates, (ii) the Class
1-A-2 Certificates, (iii) the Class 1-A-3 Certificates, (iv) the Class 2-A-1
Certificates, (v) the Class 2-A-2 Certificates,(vi) the Class M-1 Certificates,
(vii) the Class M-2 Certificates, (viii) the Class M-3 Certificates, (ix) the
Class M-4 Certificates, (x) the Class M-5 Certificates, (xi) the Class B
Certificates, (xii) the Class P Certificates, (xiii) the Class C Certificates,
(xiv) the Class R Certificates and (xv) the Class R-X Certificates.
REMIC 1
-------
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the Mortgage Loans and certain other related assets
(other than the Net WAC Shortfall Reserve Fund) subject to this Agreement as 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 be the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions (as defined
herein). None of the REMIC 1 Regular Interests will be certificated. 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 1 created hereunder:
Uncertificated REMIC 1 Initial Uncertificated Assumed Final
Designation Pass-Through Rate Principal Balance Maturity Date(1)
- ----------- ----------------- ----------------- ----------------
AA Variable(2) $ 490,015,427.40 February 25, 2035
1-A-1 Variable(2) $ 1,219,425.00 February 25, 2035
1-A-2 Variable(2) $ 519,865.00 February 25, 2035
1-A-3 Variable(2) $ 445,860.00 February 25, 2035
2-A-1 Variable(2) $ 1,931,995.00 February 25, 2035
2-A-2 Variable(2) $ 483,000.00 February 25, 2035
M-1 Variable(2) $ 75,000.00 February 25, 2035
M-2 Variable(2) $ 62,500.00 February 25, 2035
M-3 Variable(2) $ 50,000.00 February 25, 2035
M-4 Variable(2) $ 50,000.00 February 25, 2035
M-5 Variable(2) $ 75,005.00 February 25, 2035
B Variable(2) $ 62,505.00 February 25, 2035
ZZ Variable(2) $ 5,025,159.84 February 25, 2035
1A Variable(2) $ 3,800.18 February 25, 2035
1B Variable(2) $ 47,503.18 February 25, 2035
2A Variable(2) $ 4,200.07 February 25, 2035
2B Variable(2) $ 52,499.97 February 25, 2035
XX Variable(2) $ 499,907,738.85 February 25, 2035
P 0.00% $ 100.00 February 25, 2035
- -------------------
(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 1
Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 1
Pass-Through Rate" in this Agreement.
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 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 2
created hereunder:
2
Initial Certificate Assumed Final
Class Designation Principal Balance Pass-Through Rate Maturity Date(1)
- ----------------- ----------------- ----------------- ----------------
Class 1-A-1 $ 243,885,000.00 Variable(2) February 25, 2035
Class 1-A-2 $ 103,973,000.00 Variable(2) February 25, 2035
Class 1-A-3 $ 89,172,000.00 Variable(2) February 25, 2035
Class 2-A-1 $ 386,399,000.00 Variable(2) February 25, 2035
Class 2-A-2 $ 96,600,000.00 Variable(2) February 25, 2035
Class M-1 $ 15,000,000.00 Variable(2) February 25, 2035
Class M-2 $ 12,500,000.00 Variable(2) February 25, 2035
Class M-3 $ 10,000,000.00 Variable(2) February 25, 2035
Class M-4 $ 10,000,000.00 Variable(2) February 25, 2035
Class M-5 $ 15,001,000.00 Variable(2) February 25, 2035
Class B $ 12,501,000.00 Variable(2) February 25, 2035
Class C Interest $ 5,000,484.49 Variable(3) February 25, 2035
Class P Interest $ 100.00 N/A(4) February 25, 2035
- -------------------
(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 2.
(2) Calculated in accordance with the definition of "Pass-Through Rate" in
this Agreement.
(3) The Class C Interest will accrue interest at its variable Pass-Through
Rate on the Uncertificated Notional Balance of the Class C Interest
outstanding from time to time which shall equal the Uncertificated
Principal Balance of the REMIC 1 Regular Interests (other than REMIC 1
Regular Interest P). The Class C Interest will not accrue interest on
its Certificate Principal Balance.
(4) The Class P Interest is not entitled to distributions in respect of
interest.
REMIC 3
-------
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Class C Interest 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 represents the sole class of
"residual interests" in REMIC 3 for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and Initial Certificate Principal Balance for the indicated
Class of Certificates that represents a "regular interest" in REMIC 3 created
hereunder:
Initial Certificate Assumed Final
Class Designation Principal Balance Pass-Through Rate Maturity Date(1)
----------------- ----------------- ----------------- ----------------
Class C Certificates $5,000,484.49 (2) February 25, 2035
3
- ---------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the 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 the Class C
Certificates.
(2) The Class C Certificates will receive 100% of amounts received in
respect of the Class C Interest.
REMIC 4
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Class P Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC 4." The Class R-4 Interest represents the sole class of
"residual interests" in REMIC 4 for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and Initial Certificate Principal Balance for the indicated
Class of Certificates that represents a "regular interest" in REMIC 4 created
hereunder:
Initial Certificate Assumed Final
Class Designation Principal Balance Pass-Through Rate Maturity Date(1)
- ----------------- ----------------- ----------------- ----------------
Class P Certificates $100.00 (2) February 25, 2035
- ---------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the 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 the Class P
Certificates.
(2) The Class P Certificates will receive 100% of amounts received in
respect of the Class P Interest.
4
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. Unless otherwise specified, all calculations in respect of interest on
the Class A, Class M and Class B 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, Class R and Class R-X Certificates do not accrue interest.
"Accrual Period": With respect to each Class of Certificates and the
Distribution Date in February 2005, the period commencing the Closing Date and
ending on the day preceding the Distribution Date in February 2005, and (ii)
with respect to any Distribution Date after the Distribution Date in February
2005, 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.
"Adjustment Date": As to each Mortgage Loan, each date set forth in the
related Mortgage Note on which an adjustment to the interest rate on such
Mortgage Loan becomes effective.
"Advance": As to any Mortgage Loan, any advance made by the Subservicer
or Master Servicer on any Distribution Date pursuant to Section 4.03.
"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 the Class 1-A Certificates, Class 2-A Certificates and any Class of
Mezzanine Certificates, an amount equal to the sum of any Realized Loss
allocated to that Class of Certificates on that Distribution Date and any
Allocated Realized Loss Amount for that Class remaining unpaid from any previous
Distribution Date.
"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.
5
"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 Business Day following 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 and (iv) the aggregate amount required
to be deposited by the Master Servicer pursuant to Section 4.01(j), reduced by
(b) the sum, as of the close of business on the Business Day following 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 Radian under the
Radian Lender-Paid PMI Policy, (vi) 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 in the month of such Distribution Date and (vii) amounts
on deposit in the Custodial Account representing any Prepayment Charges or
Master Servicer Prepayment Charge Payment Amounts.
"Bankruptcy Code": The Bankruptcy Code of 1978, as amended.
"Basic Principal Distribution Amount": With respect to any Distribution
Date and each Loan Group, the related Principal Remittance Amount.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"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, Class R or Class R-X
Certificate.
"Certificate Account": The trust account or accounts created and
maintained pursuant to Section 4.01, which shall be entitled Wells Fargo Bank,
N.A., in trust for registered holders of Impac Secured Assets Corp., Mortgage
Pass-Through Certificates, Series 2004-4, and which account or accounts must
each be an Eligible Account.
6
"Certificate Account Deposit Date": With respect to any Distribution
Date, the Business Day immediately preceding such Distribution Date.
"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 Company 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
Company 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":With respect to the Class 1-A-1, Class 1-A-2,
Class 1-A-3, Class 2-A-1, Class 2-A-2, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5 and Class B Certificates, on any Distribution Date prior to the
Step-Up Date, 0.17%, 0.27%, 0.43%, 0.30%, 0.36%, 0.51%, 0.54%, 0.60%, 0.95%,
1.10% and 1.80% per annum, respectively, and on any Distribution Date on and
after the Step-Up Date, 0.340%, 0.540%, 0.860%, 0.600%, 0.720%, 0.765%, 0.810%,
0.900%, 1.425%, 1.625% and 2.700% per annum, respectively.
"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.
"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, in the
case of a Class 1-A Certificate, Class 2-A Certificate or Mezzanine Certificate,
any reductions in the Certificate Principal Balance thereof deemed to have
occurred in connection with allocations of Realized Losses pursuant to Section
4.05. 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 Mezzanine
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.
7
"Class 1-A Corridor Contract": The Corridor Contract between the Trust
Fund and the Corridor Contract Provider for the benefit of the Class 1-A
Certificates.
"Class 1-A Net WAC Rate": With respect to the Class 1-A Certificates, a
per annum rate equal to the weighted average of the Net Mortgage Rates of the
Group 1 Loans as of the close of business on the first day of the calendar month
preceding the month in which such Distribution Date occurs, multiplied by a
fraction equal to (x) 30 divided by (y) the number of days in the related
Accrual Period.
"Class 1-A Principal Distribution Amount": For any Distribution Date
will equal the product of (x) the Class A Principal Distribution Target Amount
and (y) a fraction, the numerator of which is the Class 1-A Principal
Distribution Target Amount and the denominator of which is the sum of the Class
1-A Principal Distribution Target Amount and Class 2-A Principal Distribution
Target Amount.
"Class 1-A Principal Distribution Target Amount": For any Distribution
Date will equal the excess of:
(1) the Certificate Principal Balance of the Class 1-A
Certificates immediately prior to such Distribution Date, over
(2) the lesser of (x) 84.00% of the aggregate Stated Principal
Balance of the Group 1 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 Group 1 Loans for such Distribution Date after giving
effect to distributions to be made on that Distribution Date minus 0.50% of the
aggregate Stated Principal Balance of the Group 1 Loans as of the Cut-off Date.
"Class 1-A-1 Certificate": Any one of the Class 1-A-1 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class 1-A-2 Certificate": Any one of the Class 1-A-2 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class 1-A-3 Certificate": Any one of the Class 1-A-3 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class 2-A Certificate": Any Class 2-A-1 Certificate or Class 2-A-2
Certificate.
"Class 2-A Corridor Contract": The Corridor Contract between the Trust
Fund and the Corridor Contract Provider for the benefit of the Class 2-A
Certificates.
8
"Class 2-A Net WAC Rate": With respect to the Class 2-A Certificates,
a per annum rate equal to the weighted average of the Net Mortgage Rates of the
Group 2 Loans as of the close of business on the first day of the calendar month
preceding the month in which such Distribution Date occurs, multiplied by a
fraction equal to (x) 30 divided by (y) the number of days in the related
Accrual Period. For any Distribution Date will equal the product of (x) the
Class A Principal Distribution Target Amount and (y) a fraction, the numerator
of which is the Class 2-A Principal Distribution Target Amount and the
denominator of which is the sum of the Class 1-A Principal Distribution Target
Amount and Class 2-A Principal Distribution Target Amount.
"Class 2-A Principal Distribution Amount": For any Distribution Date
will equal the product of (x) the Class A Principal Distribution Target Amount
and (y) a fraction, the numerator of which is the Class 2-A Principal
Distribution Target Amount and the denominator of which is the sum of the Class
1-A Principal Distribution Target Amount and Class 2-A Principal Distribution
Target Amount.
"Class 2-A Principal Distribution Target Amount": For any Distribution
Date will equal the excess of:
(1) the Certificate Principal Balance of the Class 2-A
Certificates immediately prior to such Distribution Date, over
(2) the lesser of (x) 84.00% of the aggregate Stated Principal
Balance of the Group 2 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 Group 2 Loans for such Distribution Date after giving
effect to distributions to be made on that Distribution Date minus 0.50% of the
aggregate Stated Principal Balance of the Group 2 Loans as of the Cut-off Date.
"Class 2-A-1 Certificate": Any one of the Class 2-A-1 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class 2-A-2 Certificate": Any one of the Class 2-A-2 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class A Principal Distribution Target Amount": For any Distribution
Date will equal the excess of:
(1) the sum of the Certificate Principal Balances of the Class 1-A
Certificates and Class 2-A Certificates immediately prior to such Distribution
Date, over
(2) the lesser of (x) 84.00% 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
Overcollateralization Floor.
9
"Class A Certificate": Any one of the Class 1-A-1, Class 1-A-2, Class
1-A-3, Class 2-A-1 or Class 2-A-2 Certificates.
"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, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class B Principal Distribution Amount": For any Distribution Date is
the excess of:
(1) the sum of:
(a) the Certificate Principal Balances of the Class 1-A
Certificates and Class 2-A Certificates (after taking into
account distributions of the Class 1-A Principal Distribution
Amount and Class 2-A Principal Distribution Amount for such
Distribution Date);
(b) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account distributions of the
Class M-1 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(c) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account distributions of the
Class M-2 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(d) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account distributions of the
Class M-3 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(e) the Certificate Principal Balance of the Class M-4
Certificates (after taking into account distributions of the
Class M-4 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(f) the Certificate Principal Balance of the Class M-5
Certificates (after taking into account distributions of the
Class M-5 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date; and
(g) the Certificate Principal Balance of the Class B
Certificates immediately prior to such Distribution Date
OVER
(2) the lesser of (x) 99.00% 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 after giving effect to distributions to
be made on that Distribution Date minus the Overcollateralization Floor;
10
provided, however, that if the Class B Certificates are the only Class of
Certificates outstanding on such Distribution Date the Class B Principal
Distribution Amount shall equal 100% of the Principal Distribution Amount on
such Distribution Date.
"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, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 3.
"Class C Interest": An uncertificated interest in the Trust Fund held
by the Trustee on behalf of the Holders of the Class C Certificates, evidencing
a REMIC Regular Interest in REMIC 2 for purposes of the REMIC Provisions.
"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, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class M-1 Principal Distribution Amount": For any Distribution Date is
the excess of:
(1) the sum of:
(a) the Certificate Principal Balances of the Class 1-A
Certificates and Class 2-A Certificates (after taking into
account distributions of the Class 1-A Principal Distribution
Amount and Class 2-A Principal Distribution Amount for such
Distribution Date); and
(b) the Certificate Principal Balance of the Class M-1
Certificates immediately prior to such Distribution Date
OVER
(2) the lesser of (x) 87.00% 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 after giving effect to distributions to
be made on that Distribution Date minus the Overcollateralization Floor;
provided, however, that if the Class M-1 Certificates are the only Class of
Certificates outstanding on such Distribution Date the Class M-1 Principal
Distribution Amount shall equal 100% of the Principal Distribution Amount on
such Distribution Date.
"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, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class M-2 Principal Distribution Amount": For any Distribution Date is
the excess of:
11
(1) the sum of:
(a) the Certificate Principal Balances of the Class 1-A
Certificates and Class 2-A Certificates (after taking into
account distributions of the Class 1-A Principal Distribution
Amount and Class 2-A Principal Distribution Amount for such
Distribution Date);
(b) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account distributions of the
Class M-1 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date; and
(c) the Certificate Principal Balance of the Class M-2
Certificates immediately prior to such Distribution Date
OVER
(2) the lesser of (x) 89.50% 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 after giving effect to distributions to
be made on that Distribution Date minus the Overcollateralization Floor;
provided, however, that if the Class M-2 Certificates are the only Class of
Certificates outstanding on such Distribution Date the Class M-2 Principal
Distribution Amount shall equal 100% of the Principal Distribution Amount on
such Distribution Date.
"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, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class M-3 Principal Distribution Amount": For any Distribution Date is
the excess of:
(1) the sum of:
(a) the Certificate Principal Balances of the Class 1-A
Certificates and Class 2-A Certificates (after taking into
account distributions of the Class 1-A Principal Distribution
Amount and Class 2-A Principal Distribution Amount for such
Distribution Date);
(b) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account distributions of the
Class M-1 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(c) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account distributions of the
Class M-2 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date; and
12
(d) the Certificate Principal Balance of the Class M-3
Certificates immediately prior to such Distribution Date
OVER
(2) the lesser of (x) 91.50% 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 after giving effect to distributions to
be made on that Distribution Date minus the Overcollateralization Floor;
provided, however, that if the Class M-3 Certificates are the only Class of
Certificates outstanding on such Distribution Date the Class M-3 Principal
Distribution Amount shall equal 100% of the Principal Distribution Amount on
such Distribution Date.
"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, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class M-4 Principal Distribution Amount": For any Distribution Date is
the excess of:
(1) the sum of:
(a) the Certificate Principal Balances of the Class 1-A
Certificates and Class 2-A Certificates (after taking into
account distributions of the Class 1-A Principal Distribution
Amount and Class 2-A Principal Distribution Amount for such
Distribution Date);
(b) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account distributions of the
Class M-1 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(c) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account distributions of the
Class M-2 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(d) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account distributions of the
Class M-3 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date; and
(e) the Certificate Principal Balance of the Class M-4
Certificates immediately prior to such Distribution Date
OVER
(2) the lesser of (x) 93.50% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date after giving effect to
distributions to be made on that
13
Distribution Date and (y) the aggregate Stated Principal Balance of the Mortgage
Loans after giving effect to distributions to be made on that Distribution Date
minus (ii) the Overcollateralization Floor;
provided, however, that if the Class M-4 Certificates are the only Class of
Certificates outstanding on such Distribution Date the Class M-4 Principal
Distribution Amount shall equal 100% of the Principal Distribution Amount on
such Distribution Date.
"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, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 2.
"Class M-5 Principal Distribution Amount": For any Distribution Date is
the excess of:
(1) the sum of:
(a) the Certificate Principal Balances of the Class 1-A
Certificates and Class 2-A Certificates (after taking into
account distributions of the Class 1-A Principal Distribution
Amount and Class 2-A Principal Distribution Amount for such
Distribution Date);
(b) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account distributions of the
Class M-1 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(c) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account distributions of the
Class M-2 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(d) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account distributions of the
Class M-3 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date;
(e) the Certificate Principal Balance of the Class M-4
Certificates (after taking into account distributions of the
Class M-4 Principal Distribution Amount for such Distribution
Date) immediately prior to such Distribution Date; and
(f) the Certificate Principal Balance of the Class M-5
Certificates immediately prior to such Distribution Date
OVER
(2) the lesser of (x) 96.50% 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 after giving effect to distributions to
be made on that Distribution Date minus (ii) the Overcollateralization Floor;
14
provided, however, that if the Class M-5 Certificates are the only Class of
Certificates outstanding on such Distribution Date the Class M-5 Principal
Distribution Amount shall equal 100% of the Principal Distribution Amount on
such Distribution Date.
"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, representing the right to distributions as set forth herein and
therein and evidencing a REMIC Regular Interest in REMIC 4.
"Class P Interest": An uncertificated interest in the Trust Fund held
by the Trustee on behalf of the Holders of the Class P Certificates, evidencing
a REMIC Regular Interest in REMIC 2 for purposes of the REMIC Provisions.
"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, evidencing the ownership of the Class R-1 Interest and Class R-2
Interest.
"Class R-X Certificate": Any one of the Class R-X Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-5, evidencing the ownership of the Class R-3 Interest and Class R-4
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.
"Class R-4 Interest": The uncertificated Residual Interest in REMIC 4.
"Closing Date": December 31, 2004.
"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 Seller)
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 Seller) obtained at the time of
refinancing.
"Commission": The Securities and Exchange Commission.
"Company": Impac Secured Assets Corp., or its successor in interest.
"Compensating Interest": With respect to any Distribution Date and the
Wells Fargo Mortgage Loans, 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. With
15
respect to any Distribution Date and the GMAC Mortgage Loans, an amount equal to
Prepayment Interest Shortfalls resulting from Principal Prepayments during the
related Prepayment Period, but not more than (i) the Subservicing Fees for the
immediately preceding Due Period multiplied by (ii) 50.00%.
"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 (A) for Certificate transfer and surrender
purposes, Wells Fargo Bank, N.A., Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Services -- ISAC
2004-4, and (B) for all other purposes, Wells Fargo Bank, N.A., 9062 Old
Annapolis Road, Columbia, Maryland 21045, Attention: Client Manager -- ISAC
2004-4, or at 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 1 Regular
Interest (other than REMIC 1 Regular Interest AA and REMIC 1 Regular Interest
ZZ), the Certificate with the corresponding designation.
"Corridor Contract": Any of the Class 1-A Corridor Contract, Class 2-A
Corridor Contract or the Mezzanine Corridor Contract.
"Corridor Contract Provider": Bear Stearns Financial Products, Inc.
"Corridor Contract Payment Amount": With respect to any Distribution
Date, the amount equal to the aggregate amount payable on that Distribution Date
to the Trust Fund from the Corridor Contract, as described in this Agreement.
"Credit Enhancement Percentage": For any Distribution Date is the
percentage equivalent of a fraction, the numerator of which is equal to (x) the
excess of (i) the Aggregate Stated 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 Mezzanine
Certificates outstanding, as of the preceding Distribution Date, and the
denominator of which is equal to (y) the Aggregate Stated 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 and distribution of the Principal Distribution Amount to the Holders of
the Certificates then entitled to distributions of principal on the Distribution
Date.
"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 December 31,
2004, among the Depositor, the Master Servicer, the Trustee and Deutsche Bank
National Trust Company as Custodian relating to the Mortgage Loans identified in
such custodial agreement.
16
"Custodian": Deutsche Bank National Trust Company.
"Cut-off Date": With respect to the Mortgage Loans, January 1, 2005.
References herein to the "Cut-off Date," when used with respect to more than one
Mortgage Loan, shall be to the respective Cut-off Dates for such Mortgage Loans.
"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.
"Deficiency Amount": With respect to each Distribution Date prior to
the Final Scheduled Distribution Date and the Class 2-A Certificates, an amount
equal to the sum of (i) the excess, if any, of (a) the aggregate amount of the
Monthly Interest Distributable Amount on the Class 2-A Certificates for that
Distribution Date over (b) the related Available Distribution Amount for that
Distribution Date, and (ii) the excess, if any of (a) the Certificate Principal
Balance of the Class 2-A Certificates over the aggregate Stated Principal
Balance of the Group 2 Loans immediately following such Distribution Date. With
respect to the Final Scheduled Distribution Date and the Class 2-A Certificates,
an amount equal to the sum of (i) the excess, if any, of (a) the aggregate
amount of the Monthly Interest Distributable Amount on the Class 2-A
Certificates for that Distribution Date over (b) the related Available
Distribution Amount for that Distribution Date and (ii) the excess, if any, of
the Certificate Principal Balance of all outstanding Class 2-A Certificates due
on such Final Scheduled Distribution Date to the extent not paid from the
related Available Distribution Amount on that Distribution Date. For the Class
2-A 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 Balance of the
Class 2-A Certificates in full, together with accrued and unpaid interest
thereon through the date of payment of the Class 2-A Certificates.
"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.
"Definitive Certificate": Any definitive, fully registered Certificate.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced
with a Qualified Substitute Mortgage Loan.
"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.
17
"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 5th Business Day following the 15th day (or
if such 5th day is not a Business Day, the Business Day immediately preceding
such 5th 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 Freddie 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 or
Class R-X Certificate by such Person may cause REMIC 1, REMIC 2, REMIC 3 or
REMIC 4 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 or Class R-X 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 February 2005.
"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
18
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, Insurance 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 and Loan Group, the lesser of (x) the Overcollateralization Deficiency
Amount for such Distribution Date multiplied by a fraction, the numerator of
which is the Principal Remittance Amount for such Loan Group and the denominator
of which is the Principal Remittance Amount for both Loan Groups and (y) the
Loan Group Excess Cashflow Allocation Amount for such Distribution Date.
"Fannie Mae": Federal National Mortgage Association or any successor.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"Final Scheduled Distribution Date": The Distribution Date occurring in
November 2034.
"Freddie Mac": Federal Home Loan Mortgage Corporation or any successor.
"GMAC": GMAC Mortgage Corporation, or an Affiliate thereof.
"GMAC Mortgage Loans": The Mortgage Loans that are sub-serviced by
GMAC.
"Gross Margin": With respect to any Mortgage Loan, the percentage set
forth as the "Gross Margin" for such Mortgage Loan on the Mortgage Loan
Schedule, as adjusted from time to time in accordance with the terms of this
Agreement.
"Group 1 Loan": A Mortgage Loan in Loan Group 1 as indicated on the
Mortgage Loan Schedule.
"Group 2 Loan": A Mortgage Loan in Loan Group 2 as indicated on the
Mortgage Loan Schedule.
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"Group 2 Sequential Trigger Event": A trigger event in effect on any
Distribution Date if, before the 37th Distribution Date, the aggregate amount of
Realized Losses incurred since the Cut-off Date through the last day of the
related Prepayment Period divided by the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date exceeds 3.5% or if, on or after the
37th Distribution Date, a Trigger Event is in effect.
"Index": With respect to any Mortgage Loan, the index for the
adjustment of the Mortgage Rate set forth as such on the related Mortgage Note.
"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 Notional Amount": With respect to the Class C Certificate, the
aggregate of the initial Uncertificated Principal Balance of the REMIC 1 Regular
Interests, or with respect to any single Certificate, the Initial Notional
Amount as stated on the face thereof.
"Insurance Policy": With respect to any Mortgage Loan, any insurance
policy (including a Radian Lender-Paid PMI 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.
"Interest Remittance Amount": With respect to any Distribution Date,
that portion of the Available Distribution Amount for such Distribution Date
allocable to interest received or advanced on the Mortgage Loans.
"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.
"LIBOR": With respect to any Distribution Date and the Pass-Through
Rates on the Class A Certificates and Class M Certificates, the arithmetic mean
of the Loan 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.
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"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.
"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.
"Loan Group": Any of Loan Group 1 or Loan Group 2.
"Loan Group 1": The Group 1 Loans.
"Loan Group 2": The Group 2 Loans.
"Loan Group Excess Cashflow Allocation Amount": With respect to any
Distribution Date and Loan Group, the product of Net Monthly Excess Cashflow for
such Distribution Date multiplied by a fraction, the numerator of which is the
Principal Remittance Amount for such Loan Group for such Distribution Date and
the denominator of which is the sum of the Principal Remittance Amount for both
Loan Groups.
"Lost Note Affidavit": With respect to any Mortgage Note, an original
lost note affidavit from the Seller 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 Interest and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the Uncertificated REMIC 1 Pass-Through Rates for REMIC 1 Regular Interest
1-A-1, REMIC 1 Regular Interest 1-A-2, REMIC 1 Regular Interest 1-A-3, REMIC 1
Regular Interest 2-A-1, REMIC 1 Regular Interest 2-A-2, REMIC 1 Regular Interest
M-1, REMIC 1 Regular Interest M-2, REMIC 1 Regular Interest M-3, REMIC 1 Regular
Interest M-4, REMIC 1 Regular Interest M-5, REMIC 1 Regular Interest B and REMIC
1 Regular Interest ZZ, with the rate on REMIC 1 Regular Interest 1-A-1 subject
to a cap equal to the lesser of (x) LIBOR plus 0.17% per annum prior to the
Step-Up Date and 0.34% on or after the Step-Up Date and (y) the related Net WAC
Rate for the purpose of this
21
calculation; with the rate on REMIC 1 Regular Interest 1-A-2 subject to a cap
equal to the lesser of (x) LIBOR plus 0.27% per annum prior to the Step-Up Date
and 0.54% on or after the Step-Up Date and (y) the related Net WAC Rate for the
purpose of this calculation; with the rate on REMIC 1 Regular Interest 1-A-3
subject to a cap equal to the lesser of (x) LIBOR plus 0.43% per annum prior to
the Step-Up Date and 0.86% on or after the Step-Up Date and (y) the related Net
WAC Rate for the purpose of this calculation; with the rate on REMIC 1 Regular
Interest 2-A-1 subject to a cap equal to the lesser of (x) LIBOR plus 0.30% per
annum prior to the Step-Up Date and 0.60% on or after the Step-Up Date and (y)
the related Net WAC Rate for the purpose of this calculation; with the rate on
REMIC 1 Regular Interest 2-A-2 subject to a cap equal to the lesser of (x) LIBOR
plus 0.36% per annum prior to the Step-Up Date and 0.72% on or after the Step-Up
Date and (y) the related Net WAC Rate for the purpose of this calculation; with
the rate on REMIC 1 Regular Interest M-1 subject to a cap equal to, the lesser
of (x) LIBOR plus 0.51% per annum prior to the Step-Up Date and 0.765% on or
after the Step-Up Date and (y) the related Net WAC Rate for the purpose of this
calculation; with the rate on REMIC 1 Regular Interest M-2 subject to a cap
equal to the lesser of (x) LIBOR plus 0.54% per annum prior to the Step-Up Date
and 0.810% on or after the Step-Up Date and (y) the related Net WAC Rate for the
purpose of this calculation; with the rate on REMIC 1 Regular Interest M-3
subject to a cap equal to the lesser of (x) LIBOR plus 0.60% per annum prior to
the Step-Up Date and 0.90% on or after the Step-Up Date and (y) the related Net
WAC Rate for the purpose of this calculation; with the rate on REMIC 1 Regular
Interest M-4 subject to a cap equal to the lesser of (x) LIBOR plus .95% per
annum and (y) the related Net WAC Rate for the purpose of this calculation; with
the rate on REMIC 1 Regular Interest M-5 subject to a cap equal to the lesser of
(x) LIBOR plus 1.10% per annum and (y) the related Net WAC Rate for the purpose
of this calculation; with the rate on REMIC 1 Regular Interest B subject to a
cap equal to the lesser of (x) LIBOR plus 1.80% per annum and (y) the related
Net WAC Rate for the purpose of this calculation; and with the rate on REMIC 1
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.
"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 part or 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 0.03%.
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"Maximum Uncertificated Accrued Interest Deferral Amount": With respect
to any Distribution Date, the excess of (a) accrued interest at the
Uncertificated REMIC 1 Pass-Through Rate applicable to REMIC 1 Regular Interest
ZZ for such Distribution Date on a balance equal to the excess of (i) the
Uncertificated Principal Balance of REMIC 1 Regular Interest ZZ over (ii) the
REMIC 1 Overcollateralized Amount, in each case for such Distribution Date over
(b) the sum of (I) Uncertificated Accrued Interest on REMIC 1 Regular Interest
1-A-1, with the rate on REMIC 1 Regular Interest 1-A-1 subject to a cap equal to
the lesser of (x) LIBOR plus 0.17% per annum and (y) the related Net WAC Rate,
(II) Uncertificated Accrued Interest on REMIC 1 Regular Interest 1-A-2 with the
rate on REMIC 1 Regular Interest 1-A-2 subject to a cap equal to the lesser of
(x) LIBOR plus 0.27% per annum and (y) the Net WAC Rate, (III) Uncertificated
Accrued Interest on REMIC 1 Regular Interest 1-A-3, with the rate on REMIC 1
Regular Interest 1-A-3 subject to a cap equal to the lesser of (x) LIBOR plus
0.43% per annum and (y) the related Net WAC Rate, (IV) Uncertificated Accrued
Interest on REMIC 1 Regular Interest 2-A-1, with the rate on REMIC 1 Regular
Interest 2-A-1 subject to a cap equal to the lesser of (x) LIBOR plus 0.30% per
annum and (y) the related Net WAC Rate, (V) Uncertificated Accrued Interest on
REMIC 1 Regular Interest 2-A-2, with the rate on REMIC 1 Regular Interest 2-A-2
subject to a cap equal to the lesser of (x) LIBOR plus 0.36% per annum and (y)
the related Net WAC Rate, (VI) Uncertificated Accrued Interest on REMIC 1
Regular Interest M-1, with the rate on REMIC 1 Regular Interest M-1 subject to a
cap equal to the lesser of (x) LIBOR plus 0.51% per annum and (y) the related
Net WAC Rate, (VII) Uncertificated Accrued Interest on REMIC 1 Regular Interest
M-2, with the rate on REMIC 1 Regular Interest M-2 subject to a cap equal to the
lesser of (x) LIBOR plus the 0.54% per annum and (y) the related Net WAC Rate,
(VIII) Uncertificated Accrued Interest on REMIC 1 Regular Interest M-3, with the
rate on REMIC 1 Regular Interest M-3 subject to a cap equal to the lesser of (x)
LIBOR plus 0.60% per annum and (y) the related Net WAC Rate, (IX) Uncertificated
Accrued Interest on REMIC 1 Regular Interest M-4, with the rate on REMIC 1
Regular Interest M-4 subject to a cap equal to the lesser of (x) LIBOR plus the
0.95% per annum prior to the Step-Up Date and 1.425% on or after the Step-Up
Date and (y) the related Net WAC Rate, (X) Uncertificated Accrued Interest on
REMIC 1 Regular Interest M-5, with the rate on REMIC 1 Regular Interest M-5
subject to a cap equal to the lesser of (x) LIBOR plus 1.10% per annum prior to
the Step-Up Date and 1.650% on or after the Step-Up Date and (y) the related Net
WAC Rate, and (XI) Uncertificated Accrued Interest on REMIC 1 Regular Interest
B, with the rate on REMIC 1 Regular Interest B subject to a cap equal to the
lesser of (x) LIBOR plus 1.80% per annum prior to the Step-Up Date and 2.70% on
or after the Step-Up Date and (y) 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(R) System": The system of recording transfers of Mortgages
electronically maintained by MERS.
"Mezzanine Certificate": Any Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5 or Class B Certificate.
"Mezzanine Corridor Contract": The Corridor Contract between the Trust
Fund and the Corridor Contract Provider for the benefit of the Mezzanine
Certificates.
23
"Mezzanine Net WAC Rate": With respect to the Mezzanine Certificates, a
per annum rate equal to the weighted average (weighted in proportion to the
results of subtracting from the aggregate principal balance of each Loan Group
the aggregate Certificate Principal Balance of the related Class A Certificates)
of (i) the weighted average of the Net Mortgage Rates of the Group 1 Loans and
(ii) the weighted average of the Net Mortgage Rates of the Group 2 Loans, in
each case, as of the first day of the month preceding the month in which the
distribution occurs.
"MIN": The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS(R) 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": With respect to the Class A
Certificates, Mezzanine Certificates and Class C Certificates and any
Distribution Date, 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 Regular Certificates will be calculated on
the basis of the actual number of days in the related Accrual Period and a
360-day year.
"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).
"Monthly Strike Rate": With respect to any Corridor Contract, the fixed
rate set forth in the Corridor Contract used to determine payments to the Trust
Fund.
"Moody's": Moody's 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
24
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 December 31, 2004, among Impac Funding Corporation, as
seller, Impac Mortgage Holdings, Inc., as guarantor, and the Company 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 as
part of the Trust Fund for the Certificates, attached hereto as Exhibit H, which
list shall set forth the following information with respect to each Mortgage
Loan:
(i) the loan number and name of the Mortgagor;
(ii) the street address, city, state and zip code of the Mortgaged
Property;
(iii) the original term to maturity;
(iv) the original principal balance and the original Mortgage Rate;
(v) the first payment date;
(vi) the applicable Loan Group;
(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;
25
(xix) whether such Mortgage Loan is a Radian Insured Loan and, if
so, the related Radian PMI Policy 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;
(xxii) the type and term of the related Prepayment Charge, if any;
(xxiii) the Index and the Gross Margin; and
(xxiv) the Adjustment Date frequency and Distribution Date frequency.
The Mortgage Loan Schedule may be in the form of more than one
schedule, collectively setting forth all of the information required.
"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 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 Monthly Excess Cashflow": With respect to each Distribution Date,
the sum of (a) (x) the Available Distribution Amount over (y) the sum for such
Distribution Date of (A) the Monthly Interest Distributable Amounts for the
Class A Certificates and the Mezzanine Certificates and (B) the Principal
Remittance Amount.
"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, the Sub-Servicing
Fee Rate and the Trustee Fee Rate, and with respect to the Radian Insured Loans,
the Radian PMI Policy Rate.
"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.
26
"Net WAC Rate": Any of the Class 1-A Net WAC Rate, Class 2-A Net WAC
Rate or Mezzanine Net WAC Rate.
"Net WAC Shortfall Amount": If on any Distribution Date the
Pass-Through Rate for the Class A Certificates and the Mezzanine Certificates is
limited to the Net WAC Rate, the sum of (i) the excess of (a) the amount of
interest such Class A Certificates or Mezzanine 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 Class A Certificates and the
Mezzanine Certificates, and funded on the Closing Date by or on behalf of the
Company 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 Company 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 Company and the Trustee.
"Non-United States Person": Any Person other than a United States
Person.
"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 Company, the Seller, the Master Servicer or of any
Sub-Servicer and delivered to the Company and Trustee.
"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 Company, the Seller, 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,
REMIC 3 or REMIC 4 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
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(i) is in fact independent of the Company and the Master Servicer, (ii) does not
have any direct financial interest or any material indirect financial interest
in the Company or the Master Servicer or in an affiliate of either and (iii) is
not connected with the Company or the Master Servicer as an officer, employee,
director or person performing similar functions.
"Optional Termination Date": The first Distribution Date on which the
Majority Class C Certificateholder 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.
"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 Basic Principal Distribution
Amount on such Distribution Date).
"Overcollateralization Floor": With respect to any Distribution Date,
0.50% of the Cut-off Date Balance.
"Overcollateralization Target Amount": With respect to any Distribution
Date, 0.50% of the Cut-off Date Balance.
"Overcollateralization Target Percentage": For any Distribution Date, a
percentage equal to (a) the Overcollateralization Target Amount divided by (b)
the Aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period).
"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 Class A Certificates, the
Mezzanine Certificates and the Class P Certificates as of such Distribution Date
(after giving effect to distributions to be made on such 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
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(i) the Class 1-A Certificates, the least of (x) One-Month LIBOR
plus the related Certificate Margin and (y) the Class 1-A Net WAC Rate and (z)
11.25% per annum;
(ii) the Class 2-A Certificates, the least of (x) One-Month LIBOR
plus the related Certificate Margin and (y) the Class 2-A Net WAC Rate and (z)
11.25% per annum;
(iii) the Mezzanine Certificates, the lesser of (x) One-Month LIBOR
plus the related Certificate Margin and (y) the Mezzanine Net WAC Rate and (z)
11.25% per annum; and
(iv) the Class C Interest, a per annum rate equal to the percentage
equivalent of a fraction, the numerator of which is (x) the sum of the amounts
calculated pursuant to clauses (A) through (M) below, and the denominator of
which is (y) the aggregate of the Uncertificated Principal Balances of the REMIC
1 Regular Interests. For purposes of calculating the Pass-Through Rate for the
Class C Interest, the numerator is equal to the sum of the following components:
(A) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest AA minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest AA;
(B) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest 1-A-1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest 1-A-1;
(C) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest 1-A-2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest 1-A-2;
(D) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest 1-A-3 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest 1-A-3;
(E) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest 2-A-1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest 2-A-1;
(F) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest 2-A-2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest 2-A-2;
(G) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest M-1 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest M-1;
(H) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest M-2 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest M-2;
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(I) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest M-3 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest M-3;
(J) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest M-4 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest M-4;
(K) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest M-5 minus the Marker Rate, applied to an amount equal
to the Uncertificated Principal Balance of REMIC 1 Regular Interest M-5;
(L) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest B minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest B; and
(M) the Uncertificated REMIC 1 Pass-Through Rate for
REMIC 1 Regular Interest ZZ minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest ZZ.
With respect to the Class C Certificates, 100% of the amounts
distributable to the Class C Interest.
The Class P, Class R and Class R-X Certificates will not accrue
interest and therefore will not have a Pass-Through Rate.
"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 or Class R-X 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
30
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;
(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 Wells Fargo Bank, N.A. 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.
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"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 Excess": With respect to any Distribution Date,
for each GMAC Mortgage Loan that was the subject of a Principal Prepayment
during the portion of the Prepayment Period from the related Due Date to the end
of such Prepayment Period, any payment of interest received in connection
therewith (net of any applicable Servicing Fee) representing interest accrued
for any portion of such month of receipt.
"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, with respect to any Wells Fargo Mortgage Loan, a Principal
Prepayment in part or in full during the related Prepayment Period or, with
respect to any GMAC Mortgage Loan, a Principal Prepayment in part or in full
from the beginning of the related Prepayment Period to the related Due Date, 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 (I) for such
Prepayment Period (with respect to a Wells Fargo Mortgage Loan) or (II) from the
beginning of the Prepayment Period to the related Due Date (with respect to a
GMAC Mortgage Loan) to the date of such Principal Prepayment in part or in full.
"Prepayment Period": As to any Distribution Date and any Wells Fargo
Mortgage Loans, the calendar month preceding the month in which such
Distribution Date occurs. As to any Distribution Date and the GMAC Mortgage
Loans, the period beginning with the opening of business on the sixteenth day of
the calendar month preceding the month in which such Distribution Date occurs
(or, with respect to the first Distribution Date, the period from December 31,
2004) and ending on the close of business on the fifteenth day of 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 Radian Lender-Paid PMI Policy, or any replacement policy
therefor.
"Principal Distribution Amount": With respect to any Distribution Date
and any Loan Group, an amount equal to the sum of the related Basic Principal
Distribution Amount plus the related 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.
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"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
and each Loan Group, the sum of (i) each scheduled payment of principal
collected or advanced on the related 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 related 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 and (vi) 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
December 29, 2004 relating to the public offering of the Class A Certificates
and the Mezzanine 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, Trustee Fees
and, if such Mortgage Loan is a Radian Insured Loan, fees due Radian at the
Radian PMI Policy 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.
"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.
"Qualified Substitute Mortgage Loan": A Mortgage Loan substituted by
the Company for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in an Officers' Certificate of the Seller 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)
33
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).
"Radian": Radian Guaranty, Inc. (f/k/a Commonwealth Mortgage Assurance
Company), or its successors or assigns.
"Radian Insured Loans": The Mortgage Loans included in the Trust Fund
covered by a Radian Lender-Paid PMI Policy, as indicated on the Mortgage Loan
Schedule.
"Radian Lender-Paid PMI Policy": A Primary Insurance Policy issued by
Radian in accordance with a March 29, 2002, letter between the Seller and
Radian.
"Radian PMI Policy Rate": With respect to any Radian Insured Loan, the
rate per annum at which the related premium on the Radian Lender-Paid PMI Policy
accrues.
"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 Company, 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.
34
"Record Date": With respect to each Class of Certificates which are
Book-Entry Certificates, the Business Day prior to such Distribution Date. With
respect to each Distribution Date and any Certificates which are not Book-Entry
Certificates, the close of business on the last Business Day of the month
preceding the month in which such Distribution Date occurs.
"Regular Certificate": Any of the Certificates other than a Residual
Certificate.
"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 Corridor Contracts) 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 Company's
interest in respect of the representations and warranties made by the Seller in
the Mortgage Loan Purchase Agreement as assigned to the Trustee pursuant to
Section 2.04 hereof.
"REMIC 1 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 1 Pass-Through Rate for REMIC 1
Regular Interest AA minus the Marker Rate, divided by (b) 12.
"REMIC 1 Marker Allocation Percentage": 50% of any amount payable or
loss attributable from the Mortgage Loans, which shall be allocated to REMIC 1
Regular Interest AA, REMIC 1 Regular Interest 1-A-1, REMIC 1 Regular Interest
1-A-2, REMIC 1 Regular Interest 1-A-3, REMIC 1 Regular Interest 2-A-1, REMIC 1
Regular Interest 2-A-2, REMIC 1 Regular Interest M-1, REMIC 1 Regular Interest
M-2, REMIC 1 Regular Interest M-3, REMIC 1 Regular
35
Interest M-4, REMIC 1 Regular Interest M-5, REMIC 1 Regular Interest B and REMIC
1 Regular Interest ZZ.
"REMIC 1 Overcollateralized Amount": With respect to any date of
determination, (i) 0.50% of the aggregate Uncertificated Principal Balances of
REMIC 1 Regular Interest AA, REMIC 1 Regular Interest 1-A-1, REMIC 1 Regular
Interest 1-A-2, REMIC 1 Regular Interest 1-A-3, REMIC 1 Regular Interest 2-A-1,
REMIC 1 Regular Interest 2-A-2, REMIC 1 Regular Interest M-1, REMIC 1 Regular
Interest M-2, REMIC 1 Regular Interest M-3, REMIC 1 Regular Interest M-4, REMIC
1 Regular Interest M-5, REMIC Regular Interest B and REMIC 1 Regular Interest
ZZ, minus (ii) the aggregate of the Uncertificated Principal Balances of REMIC 1
Regular Interest 1-A-1, REMIC 1 Regular Interest 1-A-2, REMIC 1 Regular Interest
1-A-3, REMIC 1 Regular Interest 2-A-1, REMIC 1 Regular Interest 2-A-2, REMIC 1
Regular Interest M-1, REMIC 1 Regular Interest M-2, REMIC 1 Regular Interest
M-3, REMIC 1 Regular Interest M-4, REMIC 1 Regular Interest M-5 and REMIC 1
Regular Interest B, in each case as of such date of determination.
"REMIC 1 Principal Loss Allocation Amount": With respect to any
Distribution Date and the Mortgage Loans, an amount equal to (a) the product of
(i) 50% 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 1 Regular Interest 1-A-1, REMIC 1 Regular Interest 1-A-2, REMIC 1 Regular
Interest 1-A-3, REMIC 1 Regular Interest 2-A-1, REMIC 1 Regular Interest 2-A-2,
REMIC 1 Regular Interest M-1, REMIC 1 Regular Interest M-2, REMIC 1 Regular
Interest M-3, REMIC 1 Regular Interest M-4, REMIC 1 Regular Interest M-5 and
REMIC 1 Regular Interest B and the denominator of which is the aggregate of the
Uncertificated Principal Balances of REMIC 1 Regular Interest 1-A-1, REMIC 1
Regular Interest 1-A-2, REMIC 1 Regular Interest 1-A-3, REMIC 1 Regular Interest
2-A-1, REMIC 1 Regular Interest 2-A-2, REMIC 1 Regular Interest M-1, REMIC 1
Regular Interest M-2, REMIC 1 Regular Interest M-3, REMIC 1 Regular Interest
M-4, REMIC 1 Regular Interest M-5, REMIC 1 Regular Interest B and REMIC 1
Regular Interest ZZ.
"REMIC 1 Overcollateralization Target Amount": 0.50% of the
Overcollateralization Target Amount.
"REMIC 1 Regular Interest AA": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest AA 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 1 Regular Interest 1-A-1": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest 1-A-1 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.
36
"REMIC 1 Regular Interest 1-A-2": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest 1-A-2 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 1 Regular Interest 1-A-3": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest 1-A-3 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 1 Regular Interest 2-A-1": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest 2-A-1 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 1 Regular Interest 2-A-2": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest 2-A-2 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 1 Regular Interest M-1": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest M-1 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 1 Regular Interest M-2": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest M-2 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 1 Regular Interest M-3": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest M-3 shall accrue interest
at the related Uncertificated REMIC 1 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
37
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 1 Regular Interest M-4": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest M-4 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 1 Regular Interest M-5": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest M-5 shall accrue interest
at the related Uncertificated REMIC 1 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 1 Regular Interest B": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest B 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 1 Regular Interest 1A": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest 1A 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 1 Regular Interest 1B": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest 1B 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 1 Regular Interest 2A": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest 2A 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.
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"REMIC 1 Regular Interest 2B": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest 2B 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 1 Regular Interest XX": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest XX 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 1 Regular Interest P": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest P 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 1 Regular Interest ZZ": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest ZZ 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 1 Regular Interests": REMIC 1 Regular Interest AA, REMIC 1
Regular Interest 1-A-1, REMIC 1 Regular Interest 1-A-2, REMIC 1 Regular Interest
1-A-3, REMIC 1 Regular Interest 2-A-1, REMIC 1 Regular Interest 2-A-2, REMIC 1
Regular Interest M-1, REMIC 1 Regular Interest M-2, REMIC 1 Regular Interest
M-3, REMIC 1 Regular Interest M-4, REMIC 1 Regular Interest M-5, REMIC 1 Regular
Interest B, REMIC 1 Regular Interest ZZ, REMIC 1 Regular Interest P, REMIC 1
Regular Interest 1A, REMIC 1 Regular Interest 1B, REMIC 1 Regular Interest 2A,
REMIC 1 Regular Interest 2B and REMIC 1 Regular Interest XX.
"REMIC 1 Subordinated Balance Ratio": The ratio among the
Uncertificated Principal Balances of each REMIC 1 Regular Interest ending with
the designation "A" (other than REMIC 1 Regular Interest AA), equal to the ratio
among, with respect to each such REMIC 1 Regular Interest, the excess of (x) the
aggregate Stated Principal Balance of the Mortgage Loans in the Group 1 Loans or
the Mortgage Loans in the Group 2 Loans, as applicable over (y) the current
Certificate Principal Balance of related Class A Certificates.
"REMIC 1 Sub WAC Allocation Percentage": 50% of any amount payable or
loss attributable from the Mortgage Loans, which shall be allocated to REMIC 1
Regular Interest 1A, REMIC 1 Regular Interest 1B, REMIC 1 Regular Interest 2A,
REMIC 1 Regular Interest 2B and REMIC 1 Regular Interest XX.
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"REMIC 2": The segregated pool of assets consisting of all of the REMIC
1 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-2 Interest), pursuant to Article II hereunder, and
all amounts deposited therein, with respect to which a separate REMIC election
is to be made.
"REMIC 2 Certificate": Any Regular Certificate (other than the Class C
Certificate and Class P Certificate).
"REMIC 2 Certificateholder": The Holder of any REMIC 2 Certificate.
"REMIC 2 Regular Interest": Any Class A Certificate, Class M
Certificate, Class B Certificate, Class C Interest or Class P Interest.
"REMIC 3": The segregated pool of assets consisting of the Class C
Interest conveyed in trust to the Trustee, for the benefit of the Holders of the
Class C Certificates and the Class R-X Certificate (in respect of the Class R-3
Interest), with respect to which a separate REMIC election is to be made.
"REMIC 3 Certificate": Any Class C Certificate or Class R-X Certificate
(in respect of the Class R-3 Interest).
"REMIC 4": The segregated pool of assets consisting of the Class P
Interest conveyed in trust to the Trustee, for the benefit of the Holders of the
Class P Certificates and the Class R-X Certificate (in respect of the Class R-4
Interest), with respect to which a separate REMIC election is to be made.
"REMIC 4 Certificate": Any Class P Certificate or Class R-X Certificate
(in respect of the Class R-4 Interest).
"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, Class C Interest,
Class P Interest or Regular Certificate.
"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)
40
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.
"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.
"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.
"Seller": Impac Funding Corporation, or its successor in interest.
"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
41
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 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.
"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 unpaid principal balance of the Mortgage Loans, and
properties acquired in respect thereof, remaining in the Trust Fund has been
reduced to less than or equal to 10% of the Cut-off Date Balance.
"Stepdown Date": Is the earlier of (i) the first Distribution Date on
which the aggregate Certificate Principal Balance of the Class A Certificates
has been reduced to zero and (ii) the later to occur of (x) the Distribution
Date occurring in February 2008 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 greater than or equal to approximately 84.00% of the Aggregate
Stated Principal Balance of the Mortgage Loans, calculated after giving effect
to scheduled payments of principal due during
42
the related Due Period, to the extent received or advanced and unscheduled
collections of principal received during the related Prepayment Period.
"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 Class 1-A Certificates, Class 2-A Certificates or
Mezzanine 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 Class 1-A
Certificates, Class 2-A Certificates or Mezzanine Certificates will be increased
by the same amount. Thereafter, such class or classes of Class 1-A Certificates,
Class 2-A Certificates or Mezzanine Certificates will accrue interest on the
increased Certificate Principal Balance.
"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": With respect to the Wells Fargo
Mortgage Loans, the 18th day of each month, or if such day is not a Business
Day, the immediately preceding Business Day. With respect to the GMAC Mortgage
Loans, the 21st day of each month, or if such day is not a Business Day, the
next succeeding 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 part or in full made by the
Mortgagor, interest for the number of days covered by such payment of interest).
"Sub-Servicing Fee Rate": With respect to each Mortgage Loan, the per
annum rate of 0.375%.
"Substitution Adjustment": As defined in Section 2.04 hereof.
43
"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, REMIC 3 and REMIC 4 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 Stated 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
Fund, and Mortgage Loans discharged due to bankruptcy) by (y) the
Aggregate Stated Principal Balance of the Mortgage Loans, in each case,
as of the last day of the previous calendar month, exceeds 40.00%
multiplied by the Credit Enhancement Percentage; 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) 1.00% with respect to the
Distribution Date occurring in January 2008, plus an additional 1/12th
of 0.50% for each month thereafter up to and including the Distribution
Date in December 2008, (ii) 1.50% with respect to the Distribution Date
occurring in January 2009, plus an additional 1/12th of 0.50% for each
month thereafter up to and including the Distribution Date in December
2009, (iii) 2.00% with respect to the Distribution Date occurring in
January 2010, plus an additional 1/12th of 0.50% for each month
thereafter up to and including the Distribution Date in December 2010
and (iv) 2.50% with respect to any Distribution Date occurring in
January 2011 and thereafter.
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.
"Trust Fund": REMIC 1, REMIC 2, REMIC 3, REMIC 4 the Corridor Contract
and the Net WAC Shortfall Reserve Fund.
"Trustee": Wells Fargo Bank, N.A., or its successor in interest, or any
successor trustee appointed as herein provided.
44
"Trustee Fee": As to each Mortgage Loan and any Distribution Date, a
fee per annum equal to 0.0020% plus any amounts earned on funds in the
Certificate Account.
"Trustee Fee Rate": With respect to each Mortgage Loan, the per annum
rate of 0.0020%.
"Uncertificated Accrued Interest": With respect to each REMIC 1 Regular
Interest on each Distribution Date, an amount equal to one month's interest at
the related Uncertificated Pass-Through Rate on the Uncertificated Principal
Balance of such REMIC 1 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 REMIC 1 Regular Interests as set
forth in Section 1.03).
"Uncertificated Notional Balance": With respect to the Class C Interest
and any Distribution Date, the Uncertificated Principal Balance of the REMIC 1
Regular Interests (other than REMIC 1 Regular Interest P) for such Distribution
Date.
"Uncertificated Principal Balance": With respect to each REMIC 1
Regular Interest, the principal amount of such REMIC 1 Regular Interest
outstanding as of any date of determination. As of the Closing Date, the
Uncertificated Principal Balance of each REMIC 1 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 REMIC 1 Regular Interest shall be reduced by all
distributions of principal made on such REMIC 1 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 1 Regular Interest ZZ shall be increased by interest deferrals as provided
in Section 4.04. The Uncertificated Principal Balance of each REMIC 1 Regular
Interest shall never be less than zero. With respect to the Class C Interest 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 1 Regular
Interests over (B) the then aggregate Certificate Principal Balances of the
Class 1-A Certificates, Class 2-A Certificates, the Class M Certificates, the
Class B Certificates and the Class P Interest then outstanding.
"Uncertificated REMIC 1 Pass-Through Rate": With respect to REMIC 1
Regular Interest AA, REMIC 1 Regular Interest 1-A-1, REMIC 1 Regular Interest
1-A-2, REMIC 1 Regular Interest 1-A-3, REMIC 1 Regular Interest 2-A-1, REMIC 1
Regular Interest 2-A-2, REMIC 1 Regular Interest M-1, REMIC 1 Regular Interest
M-2, REMIC 1 Regular Interest M-3, REMIC 1 Regular Interest M-4, REMIC 1 Regular
Interest M-5, REMIC 1 Regular Interest B, REMIC 1 Regular Interest ZZ, REMIC 1
Regular Interest 1A, REMIC 1 Regular Interest 2A and REMIC 1 Regular Interest XX
and any Distribution Date, a per annum rate equal to the 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 last day of the
calendar month preceding the month in which such Distribution Date occurs. With
respect to REMIC 1 Regular Interest 1B, the weighted average of the Net Mortgage
Rates of the Mortgage Loans in the Group 1 Loans. With respect to REMIC 1
Regular Interest 2B, the weighted average of the Net Mortgage Rates
45
of the Mortgage Loans in the Group 2 Loans. With respect to REMIC 1 Regular
Interest P, 0.00%.
"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.
"Unpaid Interest Shortfall Amount": With respect to the Class A
Certificates and Mezzanine Certificates and any Distribution Date after the
first Distribution Date, such Certificates' pro rata share, based on the amount
of Monthly Interest Distributable Amount otherwise payable on such Certificate
on such Distribution Date, of (a) any Prepayment Interest Shortfalls, to the
extent not covered by Compensating Interest, and (b) any Relief Act Interest
Shortfalls, plus interest on the amount of previously allocated Unpaid Interest
Shortfall Amount on such Classes of Certificates that remains unreimbursed, 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 Mezzanine 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 and Class
R-X 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.
"Wells Fargo Mortgage Loans": The Mortgage Loans that are sub-serviced
by Wells Fargo Bank, N.A.
46
"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.
Section 1.02. Determination of LIBOR.
LIBOR applicable to the calculation of the Pass-Through Rate on the
Class A Certificates and Mezzanine 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 Class A Certificates and Mezzanine 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 Class A Certificates and Mezzanine
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.
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 Class A Certificates and Mezzanine Certificates for the
relevant Accrual Period, in the absence of manifest error, will be final and
binding.
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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 Class A Certificates and
Mezzanine 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 the Monthly Interest
Distributable Amount for the Class A Certificates, the Mezzanine Certificates
and the Class C Certificates for any Distribution Date, (1) 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 first, among the Class C, Class R and Class R-X Certificates on a PRO
RATA basis based on, and to the extent of, one month's interest at the then
applicable Pass-Through Rate on the Notional Amount of each such Certificate
and, thereafter, among the Class A Certificates and the Mezzanine Certificates
on a PRO RATA basis based on, and to the extent of, one month's interest at the
then applicable respective Pass-Through Rate on the respective Certificate
Principal Balance of each such Certificate and (2) the aggregate amount of any
Realized Losses incurred for any Distribution Date shall be allocated among the
Class C Certificates on a PRO RATA basis based on, and to the extent of, one
month's interest at the then applicable Pass-Through Rate on the Notional Amount
of each such Certificate.
For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC 1 Regular Interests for any Distribution Date, the REMIC
I Marker Allocation Percentage of 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 1 Regular Interest AA and REMIC 1 Regular Interest ZZ up to an
aggregate amount equal to the REMIC 1 Interest Loss Allocation Amount, 98% and
2%, respectively, and thereafter among REMIC 1 Regular Interest AA, REMIC 1
Regular Interest 1-A-1, REMIC 1 Regular Interest 1-A-2, REMIC 1 Regular Interest
1-A-3, REMIC 1 Regular Interest 2-A-1, REMIC 1 Regular Interest 2-A-2, REMIC 1
Regular Interest M-1, REMIC 1 Regular Interest M-2, REMIC 1 Regular Interest
M-3, REMIC 1 Regular Interest M-4, REMIC 1 Regular Interest M-5, REMIC 1 Regular
Interest B and REMIC 1 Regular Interest ZZ, PRO RATA based on, and to the extent
of, one month's interest at the then applicable respective Uncertificated REMIC
1 Pass-Through Rate on the respective Uncertificated Principal Balance of each
such REMIC 1 Regular Interest.
The REMIC 1 Sub WAC Allocation Percentage of the aggregate amount of
any Prepayment Interest Shortfalls (to the extent not covered by payments by the
Subservicer or Master Servicer) and the REMIC 1 Sub WAC Allocation Percentage of
any Relief Act Interest Shortfalls incurred in respect of the Mortgage Loans for
any Distribution Date shall be allocated to Uncertificated Accrued Interest
payable to REMIC 1 Regular Interest 1A, REMIC 1 Regular Interest 1B, REMIC 1
Regular Interest 2A, REMIC 1 Regular Interest 2B and REMIC 1 Regular Interest
XX, pro rata, based on, and to the extent of, one month's interest at the then
applicable respective Uncertificated REMIC 1 Pass-Through Rate on the respective
Uncertificated Principal Balance of each such REMIC 1 Regular Interest.
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The aggregate amount of any Prepayment Interest Shortfalls (to the
extent not covered by payments by the Subservicer or Master Servicer) and any
Relief Act Interest Shortfalls allocated to the Class C Certificates shall be
deemed allocated to the Class C Interest.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
The Company, 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 Company 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, including the amount to be
deposited by or on behalf of the Company 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). The Trustee is hereby
authorized and directed to enter into the Corridor Contracts.
In connection with such transfer and assignment, the Company has caused
the Seller 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, "Wells
Fargo Bank, N.A., as trustee under the Pooling and Servicing Agreement relating
to Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series
2004-4" 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 Seller 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(R) System,
a duly executed original Assignment of the Mortgage, without recourse, in
recordable form to Wells Fargo Bank, N.A., as trustee," or to "Wells Fargo Bank,
N.A., as trustee for holders of Impac Secured Assets Corp., Mortgage
Pass-Through Certificates, Series 2004-4";
(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 to the Trustee (or to MERS, if the Mortgage Loan is
registered on the MERS(R) System and noting the presence of a MIN) or, if any
such Assignment has not been returned from the applicable public
50
recording office, a copy of such Assignment certified by the Seller 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 Seller 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 Seller, 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 Seller 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 Seller, or in the event such original cannot be delivered
by the Seller, 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 Seller 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 Seller 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 Seller 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 Seller 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 Seller, (iv) the
occurrence of a servicing transfer as described in Section 7.02 hereof and (v)
if the Seller 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 Seller 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.
If any Assignment is lost or returned unrecorded to the Custodian
because of any defect therein, the Seller 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
51
case may be, and the Seller shall cause such Assignment to be recorded in
accordance with this section.
The Seller is required as described in the Mortgage Loan Purchase
Agreement with respect to the Mortgage Loans, 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(R) System, the Seller further agrees that it will cause, at the
Seller's own expense, as of the Closing Date, the MERS(R) System to indicate
that such Mortgage Loans have been assigned by the Seller to the Trustee in
accordance with this Agreement for the benefit of the Certificateholders 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 Company 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.
Except as may otherwise expressly be provided herein, none of the
Company, 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.
It is intended that the conveyance of the Mortgage Loans by the Company
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 Company to the
Trustee for the benefit of the Certificateholders. It is, further, not intended
that such conveyance be deemed a pledge of the Mortgage Loans by the Company to
the Trustee to secure a debt or other obligation of the Company. However, in the
event that the Mortgage Loans are held to be property of the Company, 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 Company to the Trustee of a security interest
in all of the Company'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
52
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 Company to the Trustee of any security interest in any and all of the
Seller'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 Company 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.
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.
The Custodian agrees, for the benefit of the Certificateholders, 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 Company 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) and (iv) of the definition of the "Mortgage Loan Schedule"
accurately reflects information set forth in the Mortgage File. None
53
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 Company 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 Seller, the Master
Servicer, the Trustee (if not the Custodian) and the Company. The Trustee shall
promptly notify the Seller of such defect and request that the Seller cure any
such defect within 60 days from the date on which the Seller was notified of
such defect, and if the Seller does not cure such defect in all material
respects during such period, request on behalf of the Certificateholders that
the Seller purchase such Mortgage Loan from the Trust Fund at the Purchase Price
within 90 days after the date on which the Seller 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 Seller 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 Certificateholders 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 Seller the related Mortgage File and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as the Seller shall require as necessary to vest in the Seller
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 Seller is not
a member of MERS and the Mortgage is registered on the MERS(R) 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 Seller and shall cause
such Mortgage to be removed from registration on the MERS(R) System in
accordance with MERS' rules and regulations.
54
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Company.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Company and the Trustee for the benefit of Certificateholders
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 Fannie Mae and Freddie 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 Company 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;
(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;
55
(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 Company, any affiliate of the
Company or the Trustee by the Master Servicer in its capacity as Master
Servicer, and not in its capacity as a Seller 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 Company, the
Trustee and the Certificateholders. Upon discovery by the Company, the Trustee
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 Company 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 Company 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 Company hereby represents and warrants to the Master
Servicer and the Trustee for the benefit of Certificateholders that as of the
Closing Date, the representations and warranties of the Seller 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.
56
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 Company, the Master Servicer 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 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 Seller.
The Company hereby assigns to the Trustee for the benefit of
Certificateholders 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 Company, the Master
Servicer 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
in such Mortgage Loan, the party discovering such breach shall give prompt
written notice to the other parties. The Trustee shall promptly notify the
Seller of such breach and request that the Seller shall, within 90 days from the
date that the Seller 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 Company the Seller 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 Seller 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 Seller 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
Seller 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 Seller shall be entitled
to retain all amounts received in respect of such
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Deleted Mortgage Loan. The Company shall amend or cause to be amended the
Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the
removal of such Deleted Mortgage Loan and the substitution of the Qualified
Substitute Mortgage Loan or Loans and the Company 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 Seller 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 Company 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)).
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 Seller 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 Seller 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, REMIC 3 or REMIC 4 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, REMIC 3 or REMIC 4 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 Seller.
Except as expressly set forth herein none of the Trustee or 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 Seller 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, Class C Interest, Class P Interest and
Acceptance of REMIC 2, REMIC 3 and REMIC 4 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
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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 Company executed by an officer of the Company, has executed,
authenticated and delivered to or upon the order of the Company, the
Certificates in authorized denominations. The interests evidenced by the
Certificates, constitute the entire beneficial ownership interest in the Trust
Fund.
(b) The Company, 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 Company in
and to the REMIC 1 Regular Interests for the benefit of the Holders of the
Regular Certificates (other than the Class C Certificates and Class P
Certificates), the Class C Interest, Class P Interest 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 Regular Certificates (other than the Class C Certificates
and Class P Certificates), the Class C Interest, Class P Interest 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 Regular Certificates
(other than the Class C Certificates and Class P Certificates), the Class C
Interest and Class P Interest, constitute the entire beneficial ownership
interest in REMIC 2.
(c) In exchange for the REMIC 1 Regular Interests and,
concurrently with the assignment to the Trustee thereof, pursuant to the written
request of the Company executed by an officer of the Company, the Trustee has
executed, authenticated and delivered to or upon the order of the Company, the
Regular Certificates (other than the Class C Certificates and Class P
Certificates) in authorized denominations evidencing (together with the Class
R-2 Interest, Class P Interest and Class C Interest) the entire beneficial
ownership interest in REMIC 2.
(d) The Company, 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 Company in
and to the Class C Interest for the benefit of the Holders of the Class C
Certificates and Holders of the Class R-X Certificates (as Holders of the Class
R-3 Interest). The Trustee acknowledges receipt of the Class C Interest (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 Class C Certificates and
Holders of the Class R-X Certificates (as Holders of the Class R-3 Interest).
The interest evidenced by the Class R-3 Interest, together with the Class C
Certificates, constitute the entire beneficial ownership interest in REMIC 3.
(e) In exchange for the Class C Interest and, concurrently with
the assignment to the Trustee thereof, pursuant to the written request of the
Company executed by an officer of the Company, the Trustee has executed,
authenticated and delivered to or upon the order of the Company, the Class C
Certificates in authorized denominations evidencing (together with the Class R-3
Interest) the entire beneficial ownership interest in REMIC 3.
(f) The Company, 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 Company in
and to the Class P Interest for the benefit of the Holders of the Class P
Certificates and Holders of the Class R-X Certificates (as Holders of the Class
R-4 Interest). The Trustee acknowledges receipt of the Class P Interest (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 Class P Certificates and
Holders of the Class R-X Certificates (as Holders of the
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Class R-4 Interest). The interest evidenced by the Class R-4 Interest, together
with the Class C Certificates, constitute the entire beneficial ownership
interest in REMIC 4.
(g) In exchange for the Class P Interest and, concurrently with
the assignment to the Trustee thereof, pursuant to the written request of the
Company executed by an officer of the Company, the Trustee has executed,
authenticated and delivered to or upon the order of the Company, the Class P
Certificates in authorized denominations evidencing (together with the Class R-4
Interest) the entire beneficial ownership interest in REMIC 4.
(h) Concurrently with (i) the assignment and delivery to the
Trustee of REMIC 1 (including the Residual Interest therein represented by the
Class R-1 Interest) and the acceptance by the Trustee thereof, (ii) the
assignment and delivery to the Trustee of REMIC 2 (including the Residual
Interest therein represented by the Class R-2 Interest), (iii) the assignment
and delivery to the Trustee of REMIC 3 (including the Residual Interest therein
represented by the Class R-3 Interest) (iv) the assignment and delivery to the
Trustee of REMIC 4 (including the Residual Interest therein represented by the
Class R-4 Interest) and the acceptance by the Trustee thereof, the Trustee, from
and pursuant to the written request of the Company executed by an officer of the
Company, has executed, authenticated and delivered to or upon the order of the
Company, the Class R Certificates and Class R-X Certificates in authorized
denominations evidencing the Class R-1 Interest and Class R-2 Interest and the
Class R-3 Interest and Class R-4 Interest, respectively.
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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
prejudicing 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,
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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.
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(R) System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R) 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,
REMIC 3 or REMIC 4 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.
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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 Freddie Mac or Fannie 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. 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 GMAC.
The Master Servicer has entered into a separate Sub-Servicing Agreement
with each of GMAC and Wells Fargo Bank, N.A. for the servicing and
administration of certain of the Mortgage Loans and may enter into additional
Sub-Servicing Agreements with Sub-Servicers for the servicing and administration
of certain of the Mortgage Loans.
(b) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustee 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
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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) [Reserved].
(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.
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.
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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.
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
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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.
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. 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
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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.
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
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 and, with
respect to the GMAC Mortgage Loans, net of any Prepayment Interest Excess;
(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
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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 Company of the location
of the Custodial Account after any change thereof.
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 Company, the Seller 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 Company for
expenses incurred by or reimbursable to the Master Servicer, the Trustee or the
Company 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
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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 Radian the premium under the Radian Lender-Paid PMI
Policies; and
(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).
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
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
Trustee and the Trustee shall deposit in the related account from its own funds
the amount of any loss incurred on Permitted Investments in such account.
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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 Radian 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 Radian Insured Loan.
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In the event of a default by Radian under the Radian Lender-Paid PMI
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"); 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 Company, 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 Radian Lender-Paid PMI Policy.
With respect to the Radian PMI Insured Loans covered by a Radian
Lender-Paid PMI Policy, the Master Servicer will confirm with Radian, and Radian
will certify to the Trustee, on or before February 1, 2005, that the Mortgage
Loans indicated on the Mortgage Loan Schedule as being covered by Radian
Lender-Paid PMI 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
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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.
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, REMIC 3 or REMIC 4 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
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reissuance of such Mortgage Loan under the Code (or Treasury regulations
promulgated thereunder) and cause any of REMIC 1, REMIC 2, REMIC 3 or REMIC 4 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
and shall 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.
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 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
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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 Radian 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.
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(R) 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
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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.
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) and with respect to the GMAC
Mortgage Loans, Prepayment Interest Excess. 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.
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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.
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
Fannie Mae or Freddie 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.
Section 3.19. Annual Statement as to Compliance.
Not later than the earlier of (a) March 15 of each calendar year (other
than the calendar year during which the Closing Date occurs) or (b) with respect
to any calendar year during which the Company's annual report on Form 10-K is
required to be filed in accordance with the
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Exchange Act and the rules and regulations of the Commission, 15 Business Days
before the date on which the Company's annual report on Form 10-K is required to
be filed in accordance with the Exchange Act and the rules and regulations of
the Commission (or, in each case, if such day is not a Business Day, the
immediately preceding Business Day), the Master Servicer at its own expense
shall deliver to the Trustee, with a copy to the Rating Agencies, a certificate
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 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 for
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof including the steps being taken by the Master Servicer to
remedy such default; (iii) a review of the activities of each Sub-Servicer
during the Sub-Servicer's most recently ended fiscal year on or prior to such
December 31 and its performance under its Sub-Servicing Agreement has been made
under such officer's supervision; and (iv) to the best of the Servicing
Officer's knowledge, based on his review and the certification of an officer of
the Sub-Servicer (unless the Servicing Officer has reason to believe that
reliance on such certification is not justified), either each Sub-Servicer has
performed and fulfilled its duties, responsibilities and obligations under this
Agreement and its Sub-Servicing Agreement in all material respects throughout
the year, or, if there has been a default in performance or fulfillment of any
such duties, responsibilities or obligations, specifying the nature and status
of each such default known to the Servicing Officer. Copies of such statements
shall be provided by the Master Servicer to the Certificateholders upon request
or by the Trustee at the expense of the Master Servicer should the Master
Servicer fail to provide such copies.
Section 3.20. Annual Independent Public Accountants' Servicing
Statement.
(a) Not later than the earlier of (a) March 15 of each calendar
year (other than the calendar year during which the Closing Date occurs) or (b)
with respect to any calendar year during which the Company's annual report on
Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, 15 Business Days before the date on
which the Company's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the Commission
(or, in each case, if such day is not a Business Day, the immediately preceding
Business Day), the Master Servicer, at its expense, shall cause a firm of
independent public accountants who are members of the American Institute of
Certified Public Accountants and who are KPMG LLP (or a successor thereof) to
furnish a statement to the Master Servicer, which will be provided to the
Trustee and the Rating Agencies, to the effect that, in connection with the
firm's examination of the Master Servicer's financial statements as of the end
of such calendar year, nothing came to their attention that indicated that the
Master Servicer was not in compliance with the provisions of this Agreement
except for (i) such exceptions as such firm believes to be immaterial and (ii)
such other exceptions as are set forth in such statement.
(b) Not later than the earlier of (a) March 15 of each calendar
year (other than the calendar year during which the Closing Date occurs) or (b)
with respect to any calendar year during which the Company's annual report on
Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, 15 Business Days
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before the date on which the Company's annual report on Form 10-K is required to
be filed in accordance with the Exchange Act and the rules and regulations of
the Commission (or, in each case, if such day is not a Business Day, the
immediately preceding Business Day), the Master Servicer, at its expense, shall
or shall cause each Sub-Servicer to cause a nationally recognized firm of
independent certified public accountants to furnish to the Master Servicer or
such Sub-Servicer a report stating that (i) it has obtained a letter of
representation regarding certain matters from the management of the Master
Servicer or such Sub-Servicer which includes an assertion that the Master
Servicer or such Sub-Servicer has complied with certain minimum mortgage loan
servicing standards (to the extent applicable to commercial and multifamily
mortgage loans) identified in the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America with
respect to the servicing of first and second lien conventional single family
mortgage loans during the most recently completed calendar year and (ii) on the
basis of an examination conducted by such firm in accordance with standards
established by the American Institute of Certified Public Accountants, such
representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. Immediately upon
receipt of such report, the Master Servicer shall or shall cause each
Sub-Servicer to furnish a copy of such report to the Trustee and the Rating
Agencies.
Section 3.21. Access to Certain Documentation.
The Master Servicer shall provide, and shall cause any Sub-Servicer to
provide, to the Trustee, 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 Custodian, 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. The Master Servicer shall designate a Servicing
Officer to provide certain information regarding the Mortgage Loans.
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
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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 an Opinion of Counsel (which shall not be at the
expense of the Trustee), addressed to the Trustee 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, REMIC 3 or REMIC 4 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, REMIC 3 or REMIC
4 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.
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.
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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.
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.
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Section 3.24. Additional Obligations of the Company.
The Company agrees that on or prior to the tenth day after the Closing
Date, the Company 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 Company or an affiliate corporation, or are delivered to the Seller, 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 Company be determined by it.
Section 3.25. Exchange Act Reporting.
(a) The Trustee and the Master Servicer shall reasonably cooperate
with the Company 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 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 Company (or
such other entity). The Company hereby grants to the Trustee a limited power of
attorney to execute any Form 8-K and file each such document on behalf of the
Company. Such power of attorney shall continue until the earlier of (i) receipt
by the Trustee from the Company 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) 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
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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.
(c) 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).
(d) 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.
(e) 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
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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).
(f) 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.
(g) 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.
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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 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 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.
(b) 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 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:
(i) (A) from the Interest Remittance Amount in respect of
the Group 1 Loans (and after the distribution of the Interest Remittance Amount
in respect of the Group 2 Loans as provided in clause (B) below, from the
Interest Remittance Amount in respect of the Group 2 Loans), concurrently to the
Holders of the Class 1-A-1, Class 1-A-2 and Class 1-A-3 Certificates, the
related Monthly Interest Distributable Amount and any Unpaid Interest Shortfall
Amount for each such Class for such Distribution Date, and (B) from the Interest
Remittance Amount in respect of the Group 2 Loans (and after the distribution of
the Interest Remittance Amount in respect of the Group 1 Loans as provided in
clause (A) above, from the Interest
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Remittance Amount in respect of the Group 1 Loans), concurrently to the Holders
of the Class 2-A-1 Certificates and Class 2-A-2 Certificates, the related
Monthly Interest Distributable Amount and any Unpaid Interest Shortfall Amount
for each such Class for such Distribution Date;
(ii) from the remaining Interest Remittance Amount, to the
Class M-1 Certificates, the related Monthly Interest Distributable Amount for
such Class for such Distribution Date;
(iii) from the remaining Interest Remittance Amount, to the
Class M-2 Certificates, the related Monthly Interest Distributable Amount for
such Class for such Distribution Date;
(iv) from the remaining Interest Remittance Amount, to the
Class M-3 Certificates, the related Monthly Interest Distributable Amount for
such Class for such Distribution Date;
(v) from the remaining Interest Remittance Amount, to the
Class M-4 Certificates, the related Monthly Interest Distributable Amount for
such Class for such Distribution Date;
(vi) from the remaining Interest Remittance Amount, to the
Class M-5 Certificates, the related Monthly Interest Distributable Amount for
such Class for such Distribution Date; and
(vii) from the remaining Interest Remittance Amount, to the
Class B Certificates, the related Monthly Interest Distributable Amount for such
Class for such Distribution Date.
(c) Except as provided in clause (e) 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 Class A Certificates and the Holders of the Mezzanine
Certificates, distributions in respect of principal to the extent of the
Principal Distribution Amount remaining for such Distribution Date:
(i) first, concurrently (A) to the Holders of the Class
1-A-1 and Class 1-A-2, Class 1-A-3 Certificates, the Principal Distribution
Amount for Loan Group 1 as follows: concurrently to the Holders of the Class
1-A-1, Class 1-A-2 and Class 1-A-3 Certificates, sequentially; and (B) to the
Holders of the Class 2-A-1 Certificates and Class 2-A-2 Certificates pro rata,
the Principal Distribution Amount for Loan Group 2; provided, however, that if a
Group 2 Sequential Trigger Event is in effect, the related Principal
Distribution Amount for such Distribution Date shall be distributed sequentially
to the Class 2-A-1 Certificates and Class 2-A-2 Certificates, in that order, in
each case until the Certificate Principal Balance thereof is reduced to zero, in
each case until the Certificate Principal Balances thereof have been reduced to
zero; provided, that if on any Distribution Date, the Class 1-A Certificates or
Class 2-A Certificates are no longer outstanding, the related portion of the
Principal Distribution Amount will be allocated to the Class 2-A Certificates
and Class 1-A Certificates, respectively, in the order
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described above, in each case until the Certificate Principal Balances thereof
have been reduced to zero; and
(ii) second, from the remaining Principal Distribution
Amount for both Loan Groups, sequentially to the Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5 and Class B Certificates, in each case until the
Certificate Principal Balance thereof has been reduced to zero.
(d) Except as provided in clause (e) 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
Class A Certificates and the Holders of the Mezzanine Certificates,
distributions in respect of principal to the extent of the Principal
Distribution Amount remaining for such Distribution Date:
(i) first, concurrently (A) to the Holders of the Class
1-A-1, Class 1-A-2 and Class 1-A-3 Certificates, the Class 1-A Principal
Distribution Amount (allocated among such Class 1-A Certificates in the priority
described in Section 4.01(b)(i)(A) above) and (b) to the Holders of the Class
2-A-1 Certificates and Class 2-A-2 Certificates, the Class 2-A Principal
Distribution Amount (allocated among such Class 2-A Certificates in the priority
described in Section 4.01(c)(i)(B) above), in each case until the Certificate
Principal Balances thereof have been reduced to zero; provided, however, that
(x) after the Certificate Principal Balance of the Class 1-A Certificates has
been reduced to zero, the remaining Class 1-A Principal Distribution Amount will
be applied to the Class 2-A Certificates until the Certificate Principal Balance
thereof is reduced to zero and (y) after the Certificate Principal Balance of
the Class 2-A Certificates has been reduced to zero, the remaining Class 2-A
Principal Distribution Amount will be applied to the Class 1-A Certificates
until the Certificate Principal Balance thereof is reduced to zero;
(ii) to the Class M-1 Certificates, the Class M-1
Principal Distribution Amount, until the Certificate Principal Balance thereof
has been reduced to zero;
(iii) to the Class M-2 Certificates, the Class M-2
Principal Distribution Amount, until the Certificate Principal Balance thereof
has been reduced to zero;
(iv) to the Class M-3 Certificates, the Class M-3
Principal Distribution Amount, until the Certificate Principal Balance thereof
has been reduced to zero;
(v) to the Class M-4 Certificates, the Class M-4
Principal Distribution Amount, until the Certificate Principal Balance thereof
has been reduced to zero;
(vi) to the Class M-5 Certificates, the Class M-5
Principal Distribution Amount, until the Certificate Principal Balance thereof
has been reduced to zero; and
(vii) to the Class B Certificates, the Class B Principal
Distribution Amount, until the Certificate Principal Balance thereof has been
reduced to zero.
(e) Notwithstanding the foregoing, on any Distribution Date on
which the aggregate Certificate Principal Balance of the Mezzanine Certificates
and the Overcollateralized Amount
86
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.
(f) 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 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(c), (d) and (e) above, as applicable;
(ii) sequentially, to the Holders of the Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5 and Class B Certificates, in that order, an
amount equal to any related Unpaid Interest Shortfall Amount for such Mezzanine
Certificates;
(iii) first, to the Class 1-A Certificates and Class 2-A
Certificates, pro rata, based on the amount of any related Allocated Realized
Loss Amount thereof, any related Allocated Realized Loss Amount and second,
sequentially to the Holders of the Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5 and Class B Certificates, an amount equal to any related Allocated
Realized Loss Amount;
(iv) 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) (i)
first, to the Holders of the Class 1-A-1 Certificates, the Class 1-A-2
Certificates, the Class 1-A-3 Certificates, the Class 2-A-1 Certificates and
Class 2-A-2 Certificates, pro rata, and (ii) second, to the Class M-1
Certificates, the Class M-2 Certificates, the Class M-3 Certificates, the Class
M-4 Certificates, the Class M-5 Certificate and the Class B Certificates, in
that order, in each case until the related Net WAC Shortfall Amount has been
reduced to zero, 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;
(v) to the Holders of the Class C Certificates, the
Monthly Interest Distributable Amount for such Class for such Distribution Date;
(vi) if such Distribution Date follows the Prepayment
Period during which occurs the latest 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
(vii) any remaining amounts to the Holders of the Class R
Certificates and Class R-X Certificates (in respect of the appropriate Residual
Interest).
(g) 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
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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.
(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 Company
or the Master Servicer shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(i) The Trustee, upon written direction of the Master Servicer,
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, which
shall mature not 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 Master Servicer 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 Master Servicer 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 15th day of the month in the month of such final
distribution (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day), notify the Trustee and the Trustee shall,
no later than two (2) Business Days after such 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(j) 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 Company, or appoint an agent to take
reasonable steps, to contact the
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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 and
Class R-X 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(j).
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
"www.ctslink.com" (assistance in using the website can be obtained by calling
the Trustee's customer service desk at (301) 815-6600), to each Holder of the
Regular Certificates, the Master Servicer and the Rating Agencies, a statement
as to the distributions made on such Distribution Date setting forth, with
respect to each Loan Group:
(i) (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;
(ii) 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;
(iii) the Pass-Through Rate on each Class of Regular
Certificates (other than the Class P Certificates) for such Distribution Date;
(iv) the aggregate amount of Advances for such
Distribution Date;
(v) the number and Aggregate Stated Principal Balance of
the Mortgage Loans as of the end of the related Due Period;
(vi) the Overcollateralized Amount, the
Overcollateralization Deficiency Amount and the Overcollateralization Target
Amount for such Distribution Date;
(vii) 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 Mezzanine Certificates,
separately identifying any reduction thereof due to the allocation of Realized
Losses thereto);
(viii) the number and aggregate Stated Principal Balance of
Mortgage Loans (a) delinquent 31 to 60 days, (b) delinquent 61 to 90 days, (c)
delinquent 91 days or more, in each case as of the end of the calendar month
prior to such Distribution Date;
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(ix) 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;
(x) 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;
(xi) the aggregate amount of Principal Prepayments made
during the related Prepayment Period;
(xii) the aggregate amount of Realized Losses incurred
during the related Prepayment Period and the cumulative amount of Realized
Losses;
(xiii) the aggregate amount of extraordinary Trust Fund
expenses withdrawn from the Custodial Account or the Certificate Account for
such Distribution Date;
(xiv) 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;
(xv) the Monthly Interest Distributable Amount in respect
of each Class of the Class A Certificates and Mezzanine Certificates for such
Distribution Date and the Unpaid Interest Shortfall Amount, if any, with respect
to each Class of the Class A Certificates and Mezzanine Certificates for such
Distribution Date;
(xvi) (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;
(xvii) 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;
(xviii) 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;
(xix) the Available Distribution Amount for such
Distribution Date; and
(xx) amounts paid under the Corridor Contracts.
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.
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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.
On each Distribution Date the Trustee shall prepare and make available
on the Trustee's website (or deliver at the recipient's option), to each Holder
of a Class R Certificate and Class R-X 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 or Class R-X 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 statement 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 Business Day preceding such 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
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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.
(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 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 Radian
PMI Policy Rate, 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);
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 Seller 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
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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.
Section 4.04. Distributions on the REMIC 1 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) first, to Holders of REMIC 1 Regular Interest AA, REMIC 1
Regular Interest 1-A-1, REMIC 1 Regular Interest 1-A-2, REMIC 1 Regular Interest
1-A-3, REMIC 1 Regular Interest 2-A-1, REMIC 1 Regular Interest 2-A-2, REMIC 1
Regular Interest M-1, REMIC 1 Regular Interest M-2, REMIC 1 Regular Interest
M-3, REMIC 1 Regular Interest M-4, REMIC 1 Regular Interest M-5 and REMIC 1
Regular Interest B, REMIC 1 Regular Interest ZZ, PRO RATA, in an amount equal to
(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 1 Regular
Interest ZZ shall be reduced when the REMIC 1 Overcollateralized Amount is less
than the REMIC 1 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 1
Regular Interest 1-A-1, REMIC 1 Regular Interest 1-A-2, REMIC 1 Regular Interest
1-A-3, REMIC 1 Regular Interest M-1, REMIC 1 Regular Interest M-2, REMIC 1
Regular Interest M-3, REMIC 1 Regular Interest M-4, REMIC 1 Regular Interest M-5
and REMIC 1 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 1 Regular
Interest ZZ shall be increased by such amount;
(ii) to Holders of REMIC 1 Regular Interest 1A, REMIC 1 Regular
Interest 1B, REMIC 1 Regular Interest 2A, REMIC 1 Regular Interest 2B and REMIC
1 Regular Interest XX, pro rata, an amount equal to (A) the Uncertificated
Accrued Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates;
(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
Master Servicer Prepayment Charge Payment Amounts 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;
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(iv) to the Holders of the REMIC 1 Regular Interests, in an amount
equal to the remainder of the REMIC I Marker Allocation Percentage of the
Interest Funds and Principal Funds for all Loan Groups 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 1
Regular Interest AA, until the Uncertificated Principal Balance of such REMIC 1
Regular Interest is reduced to zero;
(B) 2% of such remainder, first, to the Holders of REMIC
1 Regular Interest 1-A-1, REMIC 1 Regular Interest 1-A-2, REMIC 1 Regular
Interest 1-A-3, REMIC 1 Regular Interest 2-A-1, REMIC 1 Regular Interest 2-A-2,
REMIC 1 Regular Interest M-1, REMIC 1 Regular Interest M-2, REMIC 1 Regular
Interest M-3, REMIC 1 Regular Interest M-4, REMIC 1 Regular Interest M-5, REMIC
1 Regular Interest B, in an aggregate amount equal to 1% of and in the same
proportion as principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Principal Balances of such REMIC 1
Regular Interests are reduced to zero; and second to the Holders of REMIC 1
Regular Interest ZZ, 1% of such remainder, until the Uncertificated Principal
Balance of such REMIC 1 Regular Interest is reduced to zero; and
(C) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-1 Interest).
(v) to the Holders of REMIC 1 Regular Interests, in an amount
equal to the remainder of the REMIC 1 Sub WAC Allocation Percentage of the
Interest Funds and Principal Funds for all Loan Groups for such Distribution
Date after the distributions made pursuant to clause (ii) above, first, so as to
keep the Uncertificated Principal Balance of each REMIC 1 Regular Interest
ending with the designation "B" equal to 0.01% of the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group; second, to each REMIC 1
Regular Interest ending with the designation "A," so that the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest is equal to 0.01% of the
excess of (x) the aggregate Stated Principal Balance of the Mortgage Loans in
the related Loan Group over (y) the current Certificate Principal Balance of the
Class A Certificate related to such Loan Group (except that if any such excess
is a larger number than in the preceding distribution period, the least amount
of principal shall be distributed to such REMIC 1 Regular Interests such that
the REMIC 1 Subordinated Balance Ratio is maintained); and third, any remaining
principal to REMIC 1 Regular Interest XX.
(a) On each Distribution Date, 100% of the amounts deemed
distributed on the Class C Interest shall be deemed distributed by REMIC 2 to
REMIC 3.
(b) On each Distribution Date, 100% of the amounts deemed
distributed on REMIC 1 Regular Interest P shall be deemed distributed by REMIC 2
to REMIC 4 in respect of the Class P 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
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Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; third, to the Class B Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; fourth, to the Class M-5 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero; fifth,
to the Class M-4 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; sixth, to the Class M-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; seventh, to the
Class M-2 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; and eighth, to the Class M-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero. Thereafter, any
Realized Losses on the Group 1 Loans will be allocated on any distribution date
to the Class 1-A Certificates, pro rata, to the Class 1-A-1 Certificates and
Class 1-A-2 Certificates, in reduction of the Certificate Principal Balances
thereof, in each case, until reduced to zero and any Realized Losses on the
Group 2 Loans will be allocated on any distribution date to the Class 2-A
Certificates, sequentially, to the Class 2-A-2 Certificates, then to the Class
2-A-1 Certificates, in reduction of the Certificate Principal Balances thereof,
in each case, until reduced to zero. 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 a Mezzanine 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 (i) FIRST, reducing the amount otherwise payable
in respect thereof pursuant to Section 4.01(f)(v), and (ii) 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
Balance of the Class P Certificates.
(b) The REMIC 1 Marker Allocation Percentage of all Realized
Losses on the Mortgage Loans shall be allocated by the Trustee on each
Distribution Date to the following REMIC 1 Regular Interests in the specified
percentages, as follows: first to Uncertificated Accrued Interest payable to the
REMIC 1 Regular Interest AA and REMIC 1 Regular Interest ZZ up to an aggregate
amount equal to the REMIC 1 Interest Loss Allocation Amount, 98% and 2%
respectively; second, to the Uncertificated Principal Balances of REMIC 1
Regular Interest AA and REMIC 1 Regular Interest ZZ up to an aggregate amount
equal to the REMIC 1 Principal Loss Allocation Amount, 98% and 2%, respectively;
third, to the Uncertificated Principal Balances of REMIC 1 Regular Interest AA,
REMIC 1 Regular Interest B and REMIC 1 Regular Interest ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest B has been reduced to zero; fourth, to the Uncertificated Principal
Balances of REMIC 1 Regular Interest AA, REMIC 1 Regular Interest M-5 and REMIC
1 Regular Interest ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 1 Regular Interest M-5 has been reduced to zero;
fifth, to the Uncertificated Principal Balances of REMIC 1 Regular Interest AA,
REMIC 1 Regular Interest M-4 and REMIC 1 Regular Interest ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest M-4 has been reduced to zero; sixth, to the Uncertificated Principal
Balances of REMIC 1 Regular Interest AA, REMIC 1 Regular Interest M-3 and REMIC
1
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Regular Interest ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC 1 Regular Interest M-3 has been reduced to zero;
seventh, to the Uncertificated Principal Balances of REMIC 1 Regular Interest
AA, REMIC 1 Regular Interest M-2 and REMIC 1 Regular Interest ZZ, 98%, 1% and
1%, respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest M-2 has been reduced to zero; and eighth, to the Uncertificated
Principal Balances of REMIC 1 Regular Interest AA, REMIC 1 Regular Interest M-1
and REMIC 1 Regular Interest ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest M-1 has been
reduced to zero.
(c) The REMIC 1 Sub WAC Allocation Percentage of all Realized
Losses shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal Balance of
each REMIC 1 Regular Interest ending with the designation "B" equal to 0.01% of
the aggregate Stated Principal Balance of the Mortgage Loans in the related Loan
Group; second, to each REMIC 1 Regular Interest ending with the designation "A"
(other than REMIC 1 Regular Interest AA) so that the Uncertificated Principal
Balance of each such REMIC 1 Regular Interest is equal to 0.01% of the excess of
(x) the aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group over (y) the current Certificate Principal Balance of the Class A
Certificates related to such Loan Group (except that if any such excess is a
larger number than in the preceding distribution period, the least amount of
Realized Losses shall be applied to such REMIC 1 Regular Interests such that the
REMIC 1 Subordinated Balance Ratio is maintained); and third, any remaining
Realized Losses shall be allocated to REMIC 1 Regular Interest XX.
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.
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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 Class A Certificates and the Mezzanine
Certificates, the Net WAC Shortfall Reserve Fund. In addition, on the Closing
Date, the Company shall deposit into the Net WAC Shortfall Reserve Fund an
amount equal to the Net WAC Shortfall Reserve Fund Deposit. The Trustee shall
demand payment of all money payable by the Corridor Contract Provider under the
related Corridor Contract. The Trustee shall deposit in the Net WAC Shortfall
Reserve Fund any related Corridor Contract Payment Amounts.
(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 Corridor Contract Payment Amounts and distribute such amounts first, to the
Holders of the related Class A Certificates and Mezzanine Certificates, PRO
RATA, to the extent of any related Net WAC Shortfall Amount on such Certificates
and second, to the Holders of the Class C Certificates.
(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(f)(iv). 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 Corridor Contract Provider, to make distributions to
the Class A Certificates and the Mezzanine 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 Class A Certificates and Mezzanine
Certificates, in the order described above, in each case until the related Net
WAC Shortfall Amount has been reduced to zero. Any such amounts transferred
shall be treated for federal tax purposes as amounts distributed by REMIC 2 to
the Holders of the Class C Interest and further distributed by REMIC 3 to the
Holders of the Class C Certificates.
(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 ss. 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.
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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 will be
issuable in registered form only. The Certificates (other than the Class P,
Class C, Class R and the Class R-X Certificates) will be issued in minimum
denominations of $25,000 Initial Certificate Principal Balance and integral
multiples of $1 in excess thereof. The Class C Certificates will be issued in
minimum denominations of $1.00 Initial Notional Amount and integral multiples of
$1.00 in excess thereof. The Class P, Class R and the Class R-X Certificates
will each be issuable in minimum denominations of any Percentage Interest
representing 10.00% and multiples of 0.01% in excess thereof.
Upon original issue, the Certificates shall, upon the written request
of the Company executed by an officer of the Company, be executed and delivered
by the Trustee, authenticated by the Trustee and delivered to or upon the order
of the Company 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 Class A Certificates and the Mezzanine 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
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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 Company 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.
If (i)(A) the Company advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Company is unable to locate a
qualified successor or (ii) the Company 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 Company, issue the Definitive
Certificates. Neither the Company, 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, Class C, Class R or Class R-X
Certificate shall be made unless such transfer, sale, pledge or other
disposition is exempt from the registration requirements of the
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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, Class C, Class R or Class R-X 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 Company 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 Company or any affiliate thereof, to a non-affiliate of
the Company 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 Company and the
Trustee the facts surrounding such transfer, which representation letters shall
not be an expense of the Trustee, the Company 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 Company to an affiliate of the
Company 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 Company of the status of such transferee as an
affiliate of the Company. Any such Certificateholder desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Company 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.
(c) Notwithstanding the requirements of Section 5.02(b), transfers
of Class P, Class C, Class R and Class R-X Certificates may be made in
accordance with this Section 5.02(c) if the prospective transferee of a
Certificate provides the Trustee and the Company 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 Company 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, Class
C, Class R or Class R-X Certificates may be made pursuant to this Section
5.02(c) by the Company. Any such Certificateholder desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Company 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,
Company and Master Servicer may rely, from a prospective transferee prior to the
transfer of any Class P, Class C, Class R or Class R-X Certificate to any
employee benefit plan or other retirement arrangement, including individual
retirement accounts and Keogh 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
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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 Company to any obligation in addition to those undertaken in this
Agreement. Neither the Company, the Master Servicer nor the Trustee, will be
required to obtain such Opinion of Counsel on behalf of any prospective
transferee.
Each beneficial owner of a Mezzanine Certificate or any interest
therein 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 Moody's, 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 or Class R-X 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 or Class R-X
Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate or Class R-X 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 or Class R-X Certificate, the
Trustee shall require delivery to it, and shall not register the Transfer of any
Class R Certificate or Class R-X 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 or Class R-X 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 or Class R-X 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
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Class R Certificate or Class R-X 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.
(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 or Class R-X Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate or Class R-X 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 or
Class R-X 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 or Class R-X 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 or Class R-X
Certificate, if it is "a pass-through interest holder", or is holding an
Ownership Interest in a Class R Certificate or Class R-X Certificate on behalf
of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R
Certificate or Class R-X 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 or Class R-X Certificates other than to Permitted
Transferees are prohibited.
(iii) (A) If any Person other than a Permitted Transferee shall
become a Holder of a Class R Certificate or Class R-X 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 or Class R-X
Certificate. If a Non-United States Person shall become a Holder of a Class R
Certificate or Class R-X 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 or Class R-X Certificate. If a transfer of
a Class R Certificate or Class R-X 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 or Class
R-X Certificate. The prior Holder shall be entitled to recover from any
purported Holder of a Class R Certificate or Class R-X 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 or Class R-X Certificate.
Each Holder of a Class R Certificate or Class R-X
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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 Company to ensure that the Class R Certificates or Class R-X
Certificates are not transferred to any Person who is not a Permitted Transferee
and that any transfer of such Class R Certificates or Class R-X Certificates
will not cause the imposition of a tax upon the Trust or cause any such REMIC to
fail to qualify as a REMIC. Neither the Trustee nor the Trustee shall be under
any liability to any Person for any registration of Transfer of a Class R
Certificate or Class R-X 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.
(B) If any purported Transferee shall become a Holder of
a Class R Certificate or Class R-X 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 or Class R-X Certificate as
described in clause (iii)(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 or Class R-X Certificate, to sell such Class
R Certificate or Class R-X 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 or Class R-X 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 (iii)(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 or Class R-X
Certificate as a result of its exercise of such discretion.
(a) 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 or Class R-X Certificate to any
Person who is a Disqualified Organization, including the information regarding
"excess inclusions" of such Class R Certificates or Class R-X 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 or Class R-X 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
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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.
(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 or
Class R-X Certificate, the Holder thereof may exchange, in the manner described
above, such Class R Certificate or Class R-X 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 or
Class R-X 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.
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Section 5.04. Persons Deemed Owners.
The Company, 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 Company, the
Master Servicer, the Trustee nor any agent of any of them shall be affected by
notice to the contrary.
Section 5.05. Rule 144A Information.
For so long as any Class P, Class C, Class R and Class R-X Certificates
are outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) of the Securities Act, (1) the Company 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
Company 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 Company and furnish the Company such
information in the Master Servicer's possession as the Company may reasonably
request.
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ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01. Liability of the Company and the Master Servicer.
The Company 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 Company 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 Company or the
Master Servicer.
The Company 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 Company or the Master Servicer may be merged,
consolidated or converted, or any corporation resulting from any merger or
consolidation to which the Company or the Master Servicer shall be a party, or
any Person succeeding to the business of the Company or the Master Servicer,
shall be the successor of the Company 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 Fannie Mae or Freddie Mac.
Section 6.03. Limitation on Liability of the Company, the Master
Servicer and Others.
Neither the Company, the Master Servicer nor any of the directors,
officers, employees or agents of the Company 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 Company 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 Company,
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
106
reason of reckless disregard of obligations and duties hereunder. The Company,
the Master Servicer and any director, officer, employee or agent of the Company
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 Company, the Master Servicer and any director, officer,
employee or agent of the Company 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 Company 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 Company 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 Company 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.
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 upon receipt by the Trustee 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 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. 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
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purchaser or transferee accepting such assignment and delegation (a) shall be a
Person which shall be qualified to service mortgage loans for Fannie Mae or
Freddie 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 (as evidenced in a writing signed by the Trustee) as having a
comparable servicing ability to that of the Master Servicer on the Closing Date;
(d) shall execute and deliver to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant and
condition to be performed or observed by it as master servicer under this
Agreement 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, 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.
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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, or to the Master Servicer 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
(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
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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 or the Holders of Certificates
entitled to at least 51% of the Voting Rights, by notice in writing to the
Master Servicer (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, as applicable, shall, by notice to the Master Servicer and the
Company, 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, as
applicable, 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, as
applicable, 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. 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
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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.
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(j)) 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 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 Fannie
Mae- or Freddie 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 Seller, 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
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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(R) 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.
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 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 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
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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.
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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, REMIC 2,
REMIC 3 and REMIC 4 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, REMIC 2, REMIC 3
and REMIC 4 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, REMIC 3 or REMIC 4 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.
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
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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;
(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 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; 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;
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(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 Holders of Certificates entitled to
at least 25% of the Voting Rights; 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 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.
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.A. 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.
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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 Company 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(R) System. Te Trustee
shall not be accountable for the use or application by the Company of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Company 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, the Trustee Fee. 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), or 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.
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.
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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 Seller 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; PROVIDED, that such resignation shall not be
effective until 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 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 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.
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, may remove the Trustee and
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appoint 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 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 Company by the
Master Servicer.
Any resignation or removal of the Trustee and appointment of 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 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.
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 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
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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 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.
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
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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.
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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 Company, 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 (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
February 2035 and (ii) the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James, 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, REMIC 3 or REMIC 4 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.
The right of the Majority Class C Certificateholder 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. If such right is exercised, the Majority
Class Certificateholder upon such repurchase shall provide to the Trustee and
the
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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 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 15th day of the
month (or if such 15th day is not a Business Day, on the Business Day
immediately preceding such 15th day) 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 the Trustee Fee for such Distribution Date and any other
amounts owing to the Trustee under this Agreement, and second, distribute to the
Certificateholders (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 Mezzanine Certificate, any unpaid Allocated Realized Loss Amount; with
respect to the Class R Certificates and Class R-X 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. Notwithstanding the foregoing, by acceptance of the Class R
Certificates and Class R-X Certificates, the Holders of the Class R Certificates
and Class R-X 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.
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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
Company 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 and
Class R-X 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, REMIC 3 or REMIC 4 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, REMIC 2, REMIC 3 and REMIC 4, 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, REMIC 2, REMIC 3 and REMIC 4, as the case may be, under Section 860F of the
Code and regulations thereunder; and
(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
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REMIC 1, REMIC 2, REMIC 3 and REMIC 4 at the expense of the Trust Fund in
accordance with the terms and conditions of this Agreement.
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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 or REMIC 2 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.
(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 and Class R-X 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
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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 or Class R-X Certificate such information as is necessary for the
application of any tax relating to the transfer of a Class R Certificate or
Class R-X 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 Company 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.
(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, REMIC 3 or REMIC 4 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
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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.
(h) On or before April 15 of each calendar year, commencing April
15, 2005, 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,
REMIC 3 or REMIC 4 to fail to qualify as REMICs at any time that any
Certificates are outstanding or subject either REMIC 1, REMIC 2, REMIC 3 or
REMIC 4 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.
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Section 10.02. Prohibited Transactions and Activities.
None of the Company, 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, REMIC 3 or REMIC 4 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, REMIC 3 or REMIC 4 as REMICs or (b)
cause the Trust Fund to be subject to a tax on "prohibited transactions" or
"contributions" pursuant to the REMIC Provisions.
Section 10.03. Master Servicer and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Company,
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
Company 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
Company and the Trustee for any taxes and costs including, without limitation,
any reasonable attorneys' fees imposed on or incurred by the Trust Fund, the
Company 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.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
This Agreement may be amended from time to time by the Company, the
Master Servicer and the Trustee, without the consent of any of the
Certificateholders, (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), as evidenced by (A) an Opinion of Counsel (provided by the Person
requesting such amendment) delivered to the Trustee, 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.
This Agreement may also be amended from time to time by the Company,
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 Seller 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.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless they shall have
first received an Opinion of Counsel (provided by the Person requesting such
amendment) to the effect that such amendment will not
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result in the imposition of any tax on either REMIC 1, REMIC 2, REMIC 3 or REMIC
4 pursuant to the REMIC Provisions or cause either REMIC 1, REMIC 2, REMIC 3 or
REMIC 4 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.
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.
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.
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 Company 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
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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 Seller 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, 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.
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
Company, 1401 Dove Street, Newport Beach, California 92660, Attention: General
Counsel, or such
132
other address as may hereafter be furnished to the other parties hereto in
writing; (b) in the case of Impac Funding, 1401 Dove Avenue, Newport Beach,
California 92660, 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 Offices, 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, 55 Water Street, 41st Floor, New
York, NY 10041, Attention: Asset Backed Surveillance Department; and Moody's,
Moody's Investors Service, Inc., Residential Mortgage Monitoring Department, 99
Church Street, New York, New York 10007. 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.
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 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 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
133
6. Any change in the location of the Custodial Account or the
Certificate Account.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of each report to Certificateholders described in Section 4.02; and the
Master Servicer shall promptly furnish to each Rating Agency copies of each
annual independent public accountants' servicing report received as described in
Section 3.20.
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, 55 Water Street, 41st Floor, New York, New York
10041, Attention: Asset Backed Surveillance Department and (ii) in the case of
Moody's, Residential Mortgage Monitoring Department, 99 Church Street, New York,
New York 10007, or, in each case, such other address as either such Rating
Agency may designate in writing to the parties thereto.
134
IN WITNESS WHEREOF, the Company, 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.,
Company
By: /s/ Richard J. Johnson
---------------------------------
Name: Richard J. Johnson
Title: Chief Financial Officer
IMPAC FUNDING CORPORATION,
Master Servicer
By: /s/ Lisa Duehring
---------------------------------
Name: Lisa Duehring
Title: Senior Vice President
WELLS FARGO BANK, N.A.,
Trustee
By: /s/ Sandra Whalen
---------------------------------
Name: Sandra Whalen
Title: Vice President
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 31st day of December, 2004, before me, a notary public in and
for said State, personally appeared Richard J. Johnson, known to me to be the
Chief Financial Officer 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]
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 31st day of December, 2004, before me, a notary public in and
for said State, personally appeared Lisa Duehring, known to me to be a Senior
Vice President 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]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of December, 2004, before me, a notary public in and
for said State, personally appeared Sandra Whalen, known to me to be a Vice
President of Wells Fargo Bank, N.A., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
______________________
Notary Public
[Notarial Seal]
EXHIBIT A
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 Percentage Interest: [_]%
Agreement: December 31, 2004 and Cut-off
Date: January 1, 2005
First Distribution Date: Aggregate Initial Certificate Principal Balance of the
Class []-A-[] Certificates: $[_____________]
February 25, 2005
Master Servicer: Initial Certificate Principal
Impac Funding Corporation Balance of this Certificate:
$[____________]
Assumed Final CUSIP: [_________]
Distribution Date:
[_____________], 20__
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-4
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
A-2
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 Company, 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 "Company," 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 Company, the Master Servicer and
Wells Fargo Bank, 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.
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.
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.
A-3
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 Company 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 Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, 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.
A-4
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 Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, 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 Company, 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 the (A) 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.
A-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 31, 2004 WELLS FARGO BANK, N.A.
as Trustee
By:______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class []A-[] Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A.
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]-[_][B] 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]-[ ] [B] Aggregate Initial Certificate Principal
Balance of the Class
[M]-[ ] [B] Certificates:
$[_____________]
Date of Pooling and Servicing Initial Certificate Principal Balance of this
Certificate:
Agreement: December 31, 2004 and Cut-off $[____________]
Date: January 1, 2005
First Distribution Date: CUSIP: [________]
February 25, 2005
Master Servicer:
Impac Funding Corporation
Assumed Final Distribution Date:
February 25, 2035
B-1-2
MORTGAGE PASS-THROUGH CERTIFICATE
Series 2004-4
evidencing a percentage interest in any distributions
allocable to the Class [M]-[][B] 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 Company, 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]-[][B] 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 "Company," 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 Company, the Master Servicer and Wells Fargo Bank,
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.
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]-[][B]
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 Company 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 Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, 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 Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, 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 Company, 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.
B-1-5
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-1-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 31, 2004 WELLS FARGO BANK, N.A.
as Trustee
By:______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [M]-[][B] Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A.
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 AND CLASS B 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: December 31, 2004 and Cut-off $[_____________]
Date:
January 1, 2005
First Distribution Date: Initial Certificate Principal Balance
February 25, 2005 of this Certificate $[_________]
Master Servicer: Percentage Interest of this
Impac Funding Corporation Certificate: [___]%
Assumed Final Distribution Date: CUSIP: [_________]
February 25, 2035
MORTGAGE PASS-THROUGH CERTIFICATE
Series 2004-4
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
B-2-2
Impac Secured Assets Corp., the Master Servicer, the Trustee or any of their
affiliates. None of the Company, 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.
This certifies that Bear Stearns Security Corp. 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
"Company"). The Trust was created pursuant to a Pooling and Servicing Agreement
dated as of December 31, 2004 (the "Agreement") among the Company, Impac Funding
Corporation, as master servicer (the "Master Servicer") and Wells Fargo Bank,
N.A., 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
B-2-3
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 Company 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 Company 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 Company 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 Company; or there shall be delivered to the
Trustee and the Company 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 Company 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 Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, 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
B-2-4
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 Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, 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 Company, 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: December 31, 2004 WELLS FARGO BANK, N.A.
as Trustee
By:______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A.
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: December 31, 2004 and Cut-off Date: of this Certificate Denomination:
January 1, 2005 $[_____________]
First Distribution Date Percentage Interest of this Certificate:
February 25, 2005 [___]%
Master Servicer CUSIP: [_________]
Impac Funding Corporation
Assumed Final Distribution Date:
February 25, 2035
MORTGAGE PASS-THROUGH CERTIFICATE
Series 2004-4
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
B-3-2
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 Company, 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 Bear Stearns Security Corp. 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 "Company," 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 Company, the Master Servicer, Wells Fargo Bank,
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.
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 Company 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 Company 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 Company 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 Company; or there shall be delivered to the
Trustee and the Company 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 Company 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 Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, 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 Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, 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 Company, 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.
B-3-5
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-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 31, 2004 WELLS FARGO BANK, N.A.
as Trustee
By:______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A.
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-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 COMPANY
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
B-4-1
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-4-2
Certificate No. 1
Class R Senior
Date of Pooling and Servicing Percentage Interest: 100%
Agreement: December 31, 2004 and Cut-off Date:
January 1, 2005
First Distribution Date:
February 25, 2005
Master Servicer:
Impac Funding Corporation
Assumed Final Distribution Date: CUSIP: [_________]
February 25, 2035
MORTGAGE PASS-THROUGH CERTIFICATE,
Series 2004-4
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
B-4-3
the Company, 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 Bear Stearns Securities Corp. 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 "Company," 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
Company, the Master Servicer, Wells Fargo Bank, 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.
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 Company 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 Company 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 Company 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 Company; or there shall be delivered to the
Trustee and the Company 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 Company 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.
B-4-4
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.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, 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-4-5
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 Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, 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 Company, 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-4-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 31, 2004 WELLS FARGO BANK, N.A.
as Trustee
By:______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A.
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-5
FORM OF CLASS R-X 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 COMPANY
OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN
THE POOLING AND SERVICING AGREEMENT (THE "AGREEMENT").
THIS CLASS R-X 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
B-5-1
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-5-2
Certificate No. 1
Class R-X Senior
Date of Pooling and Servicing Percentage Interest: 100%
Agreement: December 31, 2004 and Cut-off Date:
January 1, 2005
First Distribution Date:
February 25, 2005
Master Servicer:
Impac Funding Corporation
Assumed Final Distribution Date: CUSIP: [___________]
February 25, 2035
MORTGAGE PASS-THROUGH CERTIFICATE,
Series 2004-4
evidencing a percentage interest in any distributions
allocable to the Class R-X Certificates with respect to the
Trust Fund consisting primarily of a pool of one- to
four-family fixed-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 Company, 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-5-3
This certifies that Bear Stearns Securities Corp. 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 fixed-rate first lien mortgage loans (the "Mortgage
Loans"), formed and sold by Impac Secured Assets Corp. (hereinafter called the
"Company," 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 Company, the
Master Servicer and Wells Fargo Bank, 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.
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 Company 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 Company 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 Company 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 Company; or there shall be delivered to the
Trustee and the Company 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 Company 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
B-5-4
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-X
Certificate in violation of the restrictions mentioned above.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, 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
B-5-5
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 Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, 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 Company, 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 the Holder of at least 50.01 % Percentage Interest in the
Class C Certificates (the "Majority Class C Certificateholder") 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 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 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-5-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 31, 2004 WELLS FARGO BANK, N.A.
as Trustee
By:______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-X Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A.
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 C
FORM OF CUSTODIAN'S INITIAL CERTIFICATION
December ___, 2004
Impac Funding Corporation
1401 Dove Street
Newport Beach, California 92660
Re: Pooling and Servicing Agreement, dated as of December 31, 2004
among Impac Secured Assets Corp., Impac Funding Corporation
and Wells Fargo Bank, N.A., Mortgage Pass-Through
Certificates, Series 2004-4
--------------------------------------------------------------
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)(A) 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:
EXHIBIT D
FORM OF CUSTODIAN FINAL CERTIFICATION
December ___, 2004
Impac Funding Corporation
1401 Dove Street
Newport Beach, California 92660
Re: Pooling and Servicing Agreement, dated as of December 31, 2004
among Impac Secured Assets Corp., Impac Funding Corporation
and Wells Fargo Bank, N.A., Mortgage Pass-Through
Certificates, Series 2004-4_______
--------------------------------------------------------------
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:
EXHIBIT E
FORM OF REMITTANCE REPORT
(Provided Upon Request)
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 2004-4, 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
December 31, 2004 (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 2004-4
_____________________________________ 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.
1401 Dove Street
Newport Beach, California 92660
Wells Fargo Bank, N.A.
45 Broadway, 12th Floor
New York, New York 10006
Attention: Impac Secured Assets Corp. Series 2004-4
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates Series 2004-4, Class
-------------------------------------------------------
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from
______________ (the "Seller") $_________ Initial Certificate Principal Balance
of Mortgage Pass-Through Certificates, Series 2004-4, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 31, 2004 among Impac
Secured Assets Corp., as company (the "Company"), Impac Funding Corporation, as
master servicer, Wells Fargo Bank, N.A., 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 Company 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 Company 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
G-1-1
connection with any distribution thereof in any
manner that would violate the Act or any applicable
state securities laws.
3. The Purchaser is (a) a substantial,
sophisticated institutional investor having such
knowledge and experience in financial and business
matters, and, in particular, in such matters related
to securities similar to the Certificates, such that
it is capable of evaluating the merits and risks of
investment in the Certificates, (b) able to bear the
economic risks of such an investment and (c) an
"accredited investor" within the meaning of Rule 501
(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished
with, and has had an opportunity to review (a) a copy
of the Pooling and Servicing Agreement and (b) such
other information concerning the Certificates, the
Mortgage Loans and the Company as has been requested
by the Purchaser from the Company or the Seller and
is relevant to the Purchaser's decision to purchase
the Certificates. The Purchaser has had any questions
arising from such review answered by the Company or
the Seller 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: _________________________
G-1-2
Name: _______________________
Title: ______________________
G-1-3
EXHIBIT G-2
FORM OF TRANSFEROR REPRESENTATION LETTER
______________,200___
Impac Secured Assets Corp.
1401 Dove Street
Newport Beach, California 92660
Wells Fargo Bank, N.A.
45 Broadway, 12th Floor
New York, New York 10006
Attention: Impac Secured Assets Corp. Series 2004-3
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 2004-4, Class
--------------------------------------------------------
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________
(the "Purchaser") of $_________ Initial Certificate Principal Balance of
Mortgage Pass-Through Certificates, Series 2004-4, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 31, 2004 among Impac
Secured Assets Corp., as company (the "Company"), Impac Funding Corporation, as
master servicer, Wells Fargo Bank, N.A., as trustee (the "Trustee"). The Seller
hereby certifies, represents and warrants to, and covenants with, the Company
and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
G-2-1
Very truly yours,
___________________________
(Seller)
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 2004-4, 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 1933 Act.
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 Company 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: ________________________________ By: ________________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. ________________________________ No. ________________________________
Date:_______________________________ 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
- -----------------
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
or equivalent institution and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual
financial statements.
____ 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.
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
G-3-5
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:
G-3-6
Date: ______________________________
G-3-7
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-3-8
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-3-9
EXHIBIT G-4
FORM OF TRANSFEROR CERTIFICATE
______________, 200__
Impac Secured Assets Corp.
1401 Dove Street
Newport Beach, California 92660
Wells Fargo Bank, N.A.
45 Broadway, 12th Floor
New York, New York 10006
Attention: Impac Secured Assets Corp. Series 2004-3
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates
Series 2004-4, Class [R][R-X]______
-----------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
________________________ (the "Seller") to
_______________________________________ (the "Purchaser") of a ____% Percentage
Interest in the Mortgage Pass-Through Certificates, Series 2004-4, Class
[R][R-X] (the "Certificates"), issued pursuant to Section 5.02 of the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
December 31, 2004, among Impac Secured Assets Corp., as company (the "Company"),
Impac Funding Corporation, as master servicer and Wells Fargo Bank, N.A., 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 Seller
hereby certifies, represents and warrants to, and covenants with, the Company
and the Trustee that:
1. No purpose of the Seller relating to the sale of the
Certificates by the Seller to the Purchaser is or will be to impede the
assessment or collection of any tax.
2. The Seller 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 Seller does not know or believe that any representation contained
therein is false.
3. The Seller has at the time of the transfer conducted
a reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury
G-4-1
Regulations Section 1.860E-1(c)(4)(i) and, as a result of that investigation,
the Seller 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 Seller understands that the transfer of the Certificates may not be
respected for United States income tax purposes (and the Seller may continue to
be liable for United States income taxes associated therewith) unless the Seller
has conducted such an investigation.
4. The Seller 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,
________________________________
(Seller)
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][R-X] Certificates (the "Class [R][R-X]
Certificates") on behalf of which he/she makes this affidavit and agreement).
This Class [R][R-X] Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") dated as of December
31, 2004 among Impac Secured Assets Corp., as company, Impac Funding
Corporation, as master servicer (the "Master Servicer") and Wells Fargo Bank,
N.A., 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][R-X] Certificates, and (iii) is acquiring the Class [R][R-X] 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 Freddie 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][R-X] 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][R-X]
G-5-1
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.
4. That the Owner is aware of the tax imposed on a
"pass-through entity" holding Class [R][R-X] 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][R-X] 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][R-X] Certificates and the provisions of
Section 5.02(f) of the Pooling and Servicing Agreement under which the Class
[R][R-X] 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][R-X]
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][R-X] Certificates held by the owner and not to any other holder of the
Class [R][R-X] Certificates. The Owner understands that the liabilities
described herein relate only to the Class [R][R-X] Certificates.
10. That no purpose of the Owner relating to the transfer
of any of the Class [R][R-X] 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][R-X] Certificate that the Owner intends to pay taxes
G-5-2
associated with holding such Class [R][R-X] Certificate as they become due,
fully understanding that it may incur tax liabilities in excess of any cash
flows generated by the Class [R][R-X] Certificate.
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][R-X] 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, Keogh 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. ss. 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. ss. 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 Company
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 Company, 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
(Filed Manually)
(In accordance with Rule 202 of Regulation S-T, this Mortgage Loan
Schedule, is being filed in paper pursuant to a continuing hardship exemption.)
H-1
EXHIBIT I
SELLER REPRESENTATIONS AND WARRANTIES
Seller's Representations Assigned by Company to Trustee
Representations and Warranties. Pursuant to the Mortgage Loan Purchase
Agreement, the Seller has made certain representations and warranties to the
Company. The Seller shall confirm such representations and warranties and shall
deliver a Seller'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 Company 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 Seller's Warranty Certificate and related Officer's
Certificate, the Seller 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 Seller's Warranty Certificate, as applicable.
The Seller hereby represents and warrants to the Company 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 Seller 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 Seller 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
I-1
(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;
(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 Seller'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 Seller'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 Fannie Mae or Freddie Mac, was issued on the
date that each Mortgage Loan was created by a title insurance company which, to
the best of Seller's knowledge, was qualified to do business in the jurisdiction
where the related Mortgaged Property is located, insuring the Seller 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. Seller
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 100.00%; (ii) except with regard to [___]% of the Mortgage
Loans, each Mortgage Loan with a Loan-to-Value Ratio at origination in excess of
80.00% 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 80.01 % and up to
and including 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 12.00% 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 30.00% 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 80.01% and up to and including 95.00% 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 22.00% of the
Allowable Claim and (ii) for which the outstanding principal balance at
origination of such Mortgage Loan is at least 95.01% and up to and including
97.00% 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 35.00% 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 Seller'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 Seller 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 Seller'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 Seller, 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 Seller'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
I-4
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;
(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 Seller) 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 Seller,
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 Seller'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 Seller'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 Seller;
(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
Seller (and not through a third party broker or other third party) as of the
Closing Date, to the best of Seller'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 Seller 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 ss.6 I, N.Y. Gen. Bus. Law
ss.771 a, and N.Y. Real Prop. Acts Law ss.1302 (together, the "New York Act"),
the Arkansas Home Loan Protection Act, as amended (the "Arkansas Act"), or
Kentucky Revised Statutes ss.360.100, as amended (the "Kentucky Act"); and all
the Mortgage Loans that are subject to the Georgia Act, the New York Act, the
I-7
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.
(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(R) Glossary which is now Version 5.6 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
December ___, 2004
Wells Fargo Bank, N.A.
45 Broadway, 12th Floor
New York, New York 10006
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates
Series 2004-4
---------------------------------
Pursuant to Section 3.25 of the Pooling and Servicing
Agreement, dated as of December 31, 2004, 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 2004-4 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 Bear,
Stearns & Co. Inc. (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 December 31, 2004; (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)
J-1
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
Company or an affiliate corporation, or delivered to the seller:
Series 2004-4
-------------
Class 1-A-1: ____%
Class 1-A-2: ____%
Class 1-A-3: ____%
Class 2-A-1: ____%
Class 2-A-2: ____%
Class M-1: ____%
Class M-2: ____%
Class M-3: ____%
Class M-4: ____%
Class M-5: ____%
Class P: ____%
Class C: ____%
Class R: ____%
Class R-X: ____%
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 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 2004-4
-------------------------------------------------
I, [Identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K, and
all reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of Impac
Secured Assets Corp.;
2. Based on my knowledge, the information in these
reports, 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 this annual report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the trustee by the servicer under the
pooling and servicing, or similar, agreement, for inclusion in these reports is
included in these reports;
4. I am responsible for reviewing the activities
performed by the servicer under the pooling and servicing, or similar, agreement
and based upon my knowledge and the annual compliance review required under that
agreement, and except as disclosed in the reports, the servicer has fulfilled
its obligations under that agreement; and
5. The reports disclose all significant deficiencies
relating to the servicer's compliance with the minimum servicing standards based
upon the report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, as set forth in the pooling and servicing, or
similar, agreement, that is included in these reports.
L-1-1
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [the Trustee
and Sub-Servicers]
Date: __________________
_______________________
[Signature]
[Title]
[Company]
L-1-2
EXHIBIT L-2
FORM CERTIFICATION TO BE
PROVIDED TO MASTER SERVICER BY THE TRUSTEE
Re: Impac Secured Assets Corp.,
Mortgage Pass-Through Certificates, Series 2004-4
-------------------------------------------------
I, [Identify the certifying individual], a [______________] of
Wells Fargo Bank, N.A., 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 Issuer 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 December
31, 2004 (the "Agreement"), among Impac Secured Assets Corp., as Company, Impac
Funding Corporation, as Master Servicer, Wells Fargo Bank, N.A., as Trustee.
WELLS FARGO BANK, N.A., as
Trustee
By:__________________________
Name:
Title:
Date:
L-2-1
EXHIBIT L-3
FORM CERTIFICATION TO BE
PROVIDED TO MASTER SERVICER BY THE TRUSTEE
Re: Impac Secured Assets Corp.,
Mortgage Pass-Through Certificates, Series 2004-4
-------------------------------------------------
I, [Identify the certifying individual], a [_________________]
of Wells Fargo Bank, N.A., 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 December
31, 2004 (the "Agreement"), among Impac Secured Assets Corp., as Company, Impac
Funding Corporation, as Master Servicer and Wells Fargo Bank, N.A., as Trustee.
WELLS FARGO BANK, N.A., as
Trustee
By:__________________________
Name:
Title:
Date:
L-3-1