EXHIBIT
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IMPAC SECURED ASSETS CORP.,
Company,
IMPAC FUNDING CORPORATION
Master Servicer,
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Trustee
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2000
---------------------------------
Mortgage Pass-Through Certificates
Series 2000-3
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<TABLE>
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS..............................................................................................3
1.01. Defined Terms.....................................................................................3
Accretion Directed Certificates..........................................................................3
Accretion Termination Date...............................................................................3
Accrual Certificates.....................................................................................3
Accrual Distribution Amount..............................................................................3
Accrued Certificate Interest.............................................................................4
Advance ................................................................................................4
Aggregate Stated Principal Balance.......................................................................4
Agreement................................................................................................5
Anniversary..............................................................................................5
Assignment...............................................................................................5
Available Distribution Amount............................................................................5
Balloon Loan.............................................................................................5
Balloon Payment..........................................................................................5
Bankruptcy Amount........................................................................................5
Bankruptcy Code..........................................................................................6
Bankruptcy Loss..........................................................................................6
Book-Entry Certificate...................................................................................6
Business Day.............................................................................................6
Buydown Funds............................................................................................6
Buydown Mortgage Loan....................................................................................6
Cash Liquidation.........................................................................................6
Certificate..............................................................................................6
Certificate Account......................................................................................6
Certificate Account Deposit Date.........................................................................7
Certificateholder" or "Holder............................................................................7
Certificate Owner........................................................................................7
Certificate Principal Balance............................................................................7
Certificate Register.....................................................................................8
Class ................................................................................................8
Class A Certificate......................................................................................8
Class B Certificate......................................................................................8
Class B Percentage.......................................................................................8
Class B-1 Certificate....................................................................................8
Class B-1 Percentage.....................................................................................8
Class B-1 Prepayment Distribution Trigger................................................................9
Class B-2 Certificate....................................................................................9
Class B-2 Percentage.....................................................................................9
Class B-2 Prepayment Distribution Trigger................................................................9
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Class B-3 Certificate....................................................................................9
Class B-3 Percentage.....................................................................................9
Class B-3 Prepayment Distribution Trigger...............................................................10
Class M Certificate.....................................................................................10
Class M Percentage......................................................................................10
Class M-1 Certificate...................................................................................10
Class M-1 Percentage....................................................................................10
Class M-X Certificate...................................................................................10
Class M-2 Certificate...................................................................................10
Class M-2 Percentage....................................................................................11
Class M-2 Prepayment Distribution Trigger...............................................................11
Class M-3 Certificate...................................................................................11
Class M-3 Percentage....................................................................................11
Class M-3 Prepayment Distribution Trigger...............................................................11
Closing Date............................................................................................12
Code ...............................................................................................12
Collateral Value........................................................................................12
Commission..............................................................................................12
Company ...............................................................................................12
Compensating Interest...................................................................................12
Corporate Trust Office..................................................................................12
Curtailment.............................................................................................12
Custodial Account.......................................................................................12
Cut-off Date............................................................................................12
Debt Service Reduction..................................................................................12
Defaulted Mortgage Loan.................................................................................13
Deficient Valuation.....................................................................................13
Definitive Certificate..................................................................................13
Deleted Mortgage Loan...................................................................................13
Depository..............................................................................................13
Depository Participant..................................................................................13
Determination Date......................................................................................13
Discount Fraction.......................................................................................13
Discount Mortgage Loan..................................................................................13
Disqualified Organization...............................................................................13
Distribution Date.......................................................................................14
Due Date ...............................................................................................14
Due Period..............................................................................................14
Eligible Account........................................................................................14
Eligible Funds..........................................................................................15
Event of Default........................................................................................15
Excess Bankruptcy Loss..................................................................................15
Excess Fraud Loss.......................................................................................15
Excess Proceeds.........................................................................................15
Excess Special Hazard Loss..............................................................................15
Extraordinary Events....................................................................................15
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Extraordinary Losses....................................................................................16
Fannie Mae..............................................................................................16
FDIC ...............................................................................................16
Fitch ...............................................................................................16
Fraud Loss Amount.......................................................................................16
Fraud Losses............................................................................................16
Freddie Mac.............................................................................................16
Funding Date............................................................................................17
Initial Certificate Principal Balance...................................................................17
Initial Notional Amount.................................................................................17
Insurance Policy........................................................................................17
Insurance Proceeds......................................................................................17
Interest Accrual Period.................................................................................17
Interest Only Certificate...............................................................................17
Late Collections........................................................................................17
LIBOR ...............................................................................................18
LIBOR Business Day......................................................................................18
Liquidation Proceeds....................................................................................18
Loan-to-Value Ratio.....................................................................................18
Lockout Certificates....................................................................................18
Lockout Priority Amount.................................................................................18
Lockout Priority Percentage.............................................................................18
Lockout Prepayment Priority Percentage..................................................................18
Lockout Shift Percentage................................................................................19
Lost Note Affidavit.....................................................................................19
Maturity Date...........................................................................................19
Master Servicer.........................................................................................19
Monthly Payment.........................................................................................19
Moody's ...............................................................................................19
Mortgage ...............................................................................................19
Mortgage File...........................................................................................19
Mortgage Loan...........................................................................................19
Mortgage Loan Purchase Agreement........................................................................20
Mortgage Loan Schedule..................................................................................20
Mortgage Note...........................................................................................21
Mortgage Rate...........................................................................................21
Mortgaged Property......................................................................................21
Mortgagor...............................................................................................21
Net Mortgage Rate.......................................................................................21
Non-Discount Mortgage Loan..............................................................................21
Nonrecoverable Advance..................................................................................21
Non-United States Person................................................................................22
Notional Amount.........................................................................................22
Officers' Certificate...................................................................................23
Opinion of Counsel......................................................................................23
Original Senior Percentage..............................................................................23
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OTS ...............................................................................................23
Outstanding Mortgage Loan...............................................................................23
Ownership Interest......................................................................................23
Pass-Through Rate.......................................................................................24
Percentage Interest.....................................................................................25
Permitted Investment....................................................................................25
Permitted Transferee....................................................................................26
Person ...............................................................................................26
Pool Strip Rate.........................................................................................26
Prepayment Distribution Percentage......................................................................26
Prepayment Distribution Trigger.........................................................................28
Prepayment Interest Shortfall...........................................................................28
Prepayment Period.......................................................................................28
Primary Hazard Insurance Policy.........................................................................28
Primary Insurance Policy................................................................................28
Principal Only Certificates.............................................................................28
Principal Prepayment....................................................................................28
Principal Prepayment in Full............................................................................28
Purchase Price..........................................................................................28
Qualified Insurer.......................................................................................29
Qualified Substitute Mortgage Loan......................................................................29
Radian ...............................................................................................30
Radian Insured Loans....................................................................................30
Radian Lender-Paid PMI Policy...........................................................................30
Radian PMI Pool Policy..................................................................................30
Radian PMI Policy Rate..................................................................................30
Rate Adjustment Date....................................................................................30
Rating Agency...........................................................................................30
Realized Loss...........................................................................................30
Record Date.............................................................................................31
Regular Certificate.....................................................................................31
Relief Act..............................................................................................31
REMIC ...............................................................................................31
REMIC Provisions........................................................................................31
Remittance Report.......................................................................................32
REO Acquisition.........................................................................................32
REO Disposition.........................................................................................32
REO Imputed Interest....................................................................................32
REO Proceeds............................................................................................32
REO Property............................................................................................32
Request for Release.....................................................................................32
Reserve Banks...........................................................................................32
Reserve Interest Rate...................................................................................32
Residual Certificate....................................................................................33
Responsible Officer.....................................................................................33
Seller ...............................................................................................33
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Senior Accelerated Distribution Percentage..............................................................33
Senior Interest Distribution Amount.....................................................................34
Senior Percentage.......................................................................................34
Senior Principal Distribution Amount....................................................................34
Senior Support Certificates.............................................................................34
Servicing Account.......................................................................................34
Servicing Advances......................................................................................35
Servicing Fees..........................................................................................35
Servicing Fee Rate......................................................................................35
Servicing Guide.........................................................................................35
Servicing Officer.......................................................................................35
Single Certificate......................................................................................35
Special Deposit.........................................................................................35
Special Hazard Amount...................................................................................35
Special Hazard Loss.....................................................................................36
Special Hazard Percentage...............................................................................36
Standard & Poor's.......................................................................................36
Startup Day.............................................................................................36
Stated Principal Balance................................................................................36
Subordinate Certificate.................................................................................37
Subordinate Percentage..................................................................................37
Subordinate Principal Distribution Amount...............................................................37
Sub-Servicer............................................................................................37
Sub-Servicer Remittance Date............................................................................37
Sub-Servicing Account...................................................................................37
Sub-Servicing Agreement.................................................................................37
Super Senior Certificates...............................................................................38
Super Senior Optimal Principal Distribution Amount......................................................38
Super Senior Optimal Percentage.........................................................................38
Tax Returns.............................................................................................38
Transfer ...............................................................................................38
Transferor..............................................................................................38
Trust Fund..............................................................................................38
Trustee ...............................................................................................38
Trustee's Fee...........................................................................................38
Trustee Fee Rate........................................................................................38
Uncertificated Principal Balance........................................................................38
Uncertificated REMIC I Accrued Interest.................................................................39
Uncertificated REMIC I IO Notional Amount...............................................................40
Uncertificated REMIC I IO Regular Interests.............................................................40
Uncertificated REMIC I Pass-Through Rate................................................................40
Uncertificated REMIC I Regular Interest N...............................................................41
Uncertificated REMIC I Regular Interest O...............................................................41
Uncertificated REMIC I Regular Interest P...............................................................41
Uncertificated REMIC I Regular Interest Q...............................................................41
Uncertificated REMIC I Regular Interest S...............................................................41
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Uncertificated REMIC I Regular Interest T...............................................................41
Uncertificated REMIC I Regular Interest U...............................................................42
Uncertificated REMIC I Regular Interest V...............................................................42
Uncertificated REMIC I Regular Interest W...............................................................42
Uncertificated REMIC I Regular Interest X...............................................................42
Uncertificated REMIC I Regular Interest Y...............................................................42
Uncertificated REMIC I Regular Interests................................................................42
Uncertificated REMIC I IO Regular Interest Distribution Amount..........................................43
Uncertificated REMIC I Regular Interest N Distribution Amount...........................................43
Uncertificated REMIC I Regular Interest O Distribution Amount...........................................43
Uncertificated REMIC I Regular Interest P Distribution Amount...........................................43
Uncertificated REMIC I Regular Interest Q Distribution Amount...........................................43
Uncertificated REMIC I Regular Interest S Distribution Amount...........................................43
Uncertificated REMIC I Regular Interest T Distribution Amount...........................................43
Uncertificated REMIC I Regular Interest U Distribution Amount...........................................43
Uncertificated REMIC I Regular Interest V Distribution Amount...........................................43
Uncertificated REMIC I Regular Interest W Distribution Amount...........................................43
Uncertificated REMIC I Regular Interest X Distribution Amount...........................................44
Uncertificated REMIC I Regular Interest Y Distribution Amount...........................................44
Uncertificated REMIC I Regular Interest Distribution Amounts............................................44
Uninsured Cause.........................................................................................44
United States Person....................................................................................44
Voting Rights...........................................................................................44
Wendover ...............................................................................................45
1.02 Determination of LIBOR.........................................................................45
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES.......................................................................46
2.01. Conveyance of Mortgage Loans...................................................................46
2.02. Acceptance of the Trust Fund by the Trustee....................................................49
2.03. Representations, Warranties and Covenants of the Master Servicer and the
Company........................................................................................50
2.04. Representations and Warranties of the Seller...................................................52
2.05. Issuance of Certificates Evidencing Interests in the REMIC I Certificates......................54
2.06. Conveyance of Uncertificated REMIC I Regular Interests; Acceptance by the
Trustee........................................................................................54
2.07. Issuance of Certificates Evidencing Interest in REMIC II.......................................55
2.08. Negative Covenants of the Trust Fund...........................................................55
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND.......................................................................................55
3.01. Master Servicer to Act as Master Servicer......................................................55
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3.02. Sub-Servicing Agreements Between Master Servicer and Sub-Servicers.............................57
3.03. Successor Sub-Servicers........................................................................58
3.04. Liability of the Master Servicer...............................................................58
3.05. No Contractual Relationship Between Sub-Servicers and Trustee or
Certificateholders.............................................................................59
3.06. Assumption or Termination of Sub-Servicing Agreements by Trustee...............................59
3.07. Collection of Certain Mortgage Loan Payments...................................................60
3.08. Sub-Servicing Accounts.........................................................................61
3.09. Collection of Taxes, Assessments and Similar Items; Servicing Accounts.........................61
3.10. Custodial Account..............................................................................62
3.11. Permitted Withdrawals From the Custodial Account...............................................62
3.12. Permitted Investments..........................................................................64
3.13. Maintenance of Primary Hazard Insurance. ......................................................64
3.14. Enforcement of Due-on-Sale Clauses; Assumption Agreements......................................67
3.15. Realization Upon Defaulted Mortgage Loans......................................................68
3.16. Trustee to Cooperate; Release of Mortgage Files................................................69
3.17. Servicing Compensation.........................................................................70
3.18. Maintenance of Certain Servicing Policies......................................................70
3.19. Annual Statement as to Compliance..............................................................71
3.20. Annual Independent Public Accountants' Servicing Statement.....................................71
3.21. Access to Certain Documentation................................................................72
3.22. Title, Conservation and Disposition of REO Property............................................73
3.23. Additional Obligations of the Master Servicer..................................................75
3.24 Optional Purchase of Defaulted Mortgage Loans..................................................75
3.25. Additional Obligations of the Company..........................................................75
3.26. Periodic Filings with the Securities and Exchange Commission; Additional
Information....................................................................................76
3.27. Administration of Buydown Funds................................................................76
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS..........................................................................78
4.01. Certificate Account; Distributions.............................................................78
4.02. Statements to Certificateholders...............................................................87
4.03. Remittance Reports; Advances by the Master Servicer............................................89
4.04. Allocation of Realized Losses..................................................................90
4.05. Information Reports to Be Filed by the Master Servicer.........................................92
4.06. Compliance with Withholding Requirements.......................................................92
ARTICLE V
THE CERTIFICATES........................................................................................94
5.01. The Certificates...............................................................................94
5.02. Registration of Transfer and Exchange of Certificates..........................................96
5.03. Mutilated, Destroyed, Lost or Stolen Certificates.............................................101
5.04. Persons Deemed Owners.........................................................................102
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5.05. Rule 144A Information.........................................................................102
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER....................................................................103
6.01. Liability of the Company and the Master Servicer..............................................103
6.02. Merger, Consolidation or Conversion of the Company or the Master Servicer
.............................................................................................103
6.03. Limitation on Liability of the Company, the Master Servicer and Others........................103
6.04. Limitation on Resignation of the Master Servicer..............................................104
6.05. Sale and Assignment of Master Servicing.......................................................104
ARTICLE VII
DEFAULT................................................................................................106
7.01. Events of Default.............................................................................106
7.02. Trustee to Act; Appointment of Successor......................................................108
7.03. Notification to Certificateholders............................................................108
7.04. Waiver of Events of Default...................................................................109
7.05. List of Certificateholders....................................................................109
ARTICLE VIII
CONCERNING THE TRUSTEE.................................................................................110
8.01. Duties of Trustee.............................................................................110
8.02. Certain Matters Affecting the Trustee.........................................................111
8.03. Trustee Not Liable for Certificates or Mortgage Loans.........................................112
8.04. Trustee May Own Certificates..................................................................112
8.05. Trustee's Fees................................................................................113
8.06. Eligibility Requirements for Trustee..........................................................113
8.07. Resignation and Removal of the Trustee........................................................114
8.08. Successor Trustee.............................................................................114
8.09. Merger or Consolidation of Trustee............................................................115
8.10. Appointment of Co-Trustee or Separate Trustee.................................................115
ARTICLE IX
TERMINATION............................................................................................117
9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans or upon
Purchase of Certificates......................................................................117
9.02. Termination of REMIC II.......................................................................120
9.03. Additional Termination Requirements...........................................................120
ARTICLE X
REMIC PROVISIONS.......................................................................................122
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10.01. REMIC Administration..........................................................................122
10.02. Prohibited Transactions and Activities........................................................124
10.03. Master Servicer and Trustee Indemnification...................................................125
ARTICLE XI
MISCELLANEOUS PROVISIONS...............................................................................126
11.01. Amendment.....................................................................................126
11.02. Recordation of Agreement; Counterparts........................................................127
11.03. Limitation on Rights of Certificateholders....................................................127
11.04. Governing Law.................................................................................128
11.05. Notices.......................................................................................128
11.06. Severability of Provisions....................................................................129
11.07. Successors and Assigns; Third Party Beneficiary...............................................129
11.08. Article and Section Headings..................................................................129
11.09. Notice to Rating Agencies.....................................................................129
11.10. No Petition...................................................................................130
</TABLE>
Signatures
Acknowledgments
Exhibit A Form of Class A Certificate
Exhibit B-1 Form of Class M Certificate
Exhibit B-2 Form of Class B Certificate
Exhibit B-3 Form of Class R-I and Class R-II Certificate
Exhibit C Form of Trustee Initial Certification
Exhibit D Form of Trustee 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 G-6 Form of Investor Representation Letter for Insurance
Companies
Exhibit H Mortgage Loan Schedule
Exhibit I Seller Representations and Warranties
Exhibit J Form of Notice Under Section 3.25
Exhibit K Impac Funding Corporation Servicing Guide
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This Pooling and Servicing Agreement, dated and effective as
of September 1, 2000, among Impac Secured Assets Corp., as company (the
"Company"), Impac Funding Corporation, as master servicer (the "Master
Servicer"), and Bankers Trust Company of California, N.A., as trustee (the
"Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell mortgage 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 Mortgage Loans (as defined herein). As provided herein, the Trustee will
make, in accordance with Section 10.01, an election to treat the entire
segregated pool of assets described in the definition of REMIC I (as defined
herein), and subject to this Agreement (including the Mortgage Loans), as a real
estate mortgage investment conduit (a "REMIC") for federal income tax purposes
and such segregated pool of assets will be designated as "REMIC I." The
Uncertificated REMIC I Regular Interests will be "regular interests" in REMIC I
and the Class R-I Certificates will be the sole class of "residual interests" in
REMIC I for purposes of the REMIC Provisions (as defined herein) under the
federal income tax law. A segregated pool of assets consisting of the
Uncertificated REMIC I Regular Interests will be designated as "REMIC II," and
the Trustee will make, in accordance with Section 10.01, a separate REMIC
election with respect thereto. The Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11,
Class A-12, Class A-13, Class A-14, Class M-1, Class M-X, Class M-2, Class M-3,
Class B-1, Class B-2 and Class B-3 Certificates will be "regular interests" in
REMIC II, and the Class R-II Certificates will be the sole class of "residual
interests" therein for purposes of the REMIC Provisions (as defined herein)
under federal income tax law.
The following table irrevocably sets forth the designation, the
Uncertificated REMIC I Pass- Through Rate, the initial Uncertificated Balance
and, solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC I
Regular Interests. None of the REMIC I Regular Interests will be certificated.
<TABLE>
<CAPTION>
Uncertificated REMIC I Initial Uncertificated Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date(1)
----------- ----------------- ----------------- ----------------
<S> <C> <C> <C>
Uncertificated REMIC I 9.00% $76,800,000.00 October 25, 2030
Regular Interest N
Uncertificated REMIC I 9.00% $50,000,000.00 October 25, 2030
Regular Interest O
Uncertificated REMIC I 9.00% $120,000,000.00 October 25, 2030
Regular Interest P
Uncertificated REMIC I 9.00% $7,400,000.00 October 25, 2030
Regular Interest Q
Uncertificated REMIC I 9.00% $11,291,000.00 October 25, 2030
Regular Interest S
Uncertificated REMIC I 9.00% $54,750,000.00 October 25, 2030
Regular Interest T
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Uncertificated REMIC I 9.00% $1,000,000.00 October 25, 2030
Regular Interest U
Uncertificated REMIC I 9.00% $11,543,000.00 October 25, 2030
Regular Interest V
Uncertificated REMIC I 9.00% $5,950,000.00 October 25, 2030
Regular Interest W
REMIC I Regular Interest X 9.00% $8,751,841.68 October 25, 2030
REMIC I Regular Interest Y 0.00% $2,442,472.00 October 25, 2030
REMIC I IO Regular Interest (2) (3) October 25, 2030
</TABLE>
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the latest
possible maturity date for the Mortgage Loans has been designated as the
"latest possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC I
Pass-Through Rate" herein.
(3) Based on the Uncertificated REMIC I IO Notional Amount.
The following table sets forth the designation, initial
Pass-Through Rate, aggregate initial Certificate Principal Balance and certain
features for each Class of Certificates comprising the certificated interests in
the Trust Fund created hereunder.
<TABLE>
<CAPTION>
Aggregate Initial
Certificate Initial
Pass-Through Principal Maturity Ratings
Designatio Type Rate Balance Designations Date S&P Fitch Moody's
---------- ---- ------ -------- ------------ ------ ---- ----- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Class A-1 Senior 7.25% $76,800,000.00 Senior/Sequential/Fixed Rate October 25, 2030 AAA AAA N/A
Class A-2 Senior 9.00% (1) Senior/Interest Only/Fixed Rate October 25, 2030 AAA AAA N/A
Class A-3 Senior Adjustable Rate $50,000,000.00 Senior/Super October 25, 2030 AAA AAA Aaa
Senior/Sequential/Floating Rate
Class A-4 Senior Adjustable Rate (1) Senior/Interest Only/Inverse October 25, 2030 AAA AAA Aaa
Floating Rate/Super Senior
Class A-5 Senior Adjustable Rate $120,000,000.00 Senior/Sequential/Floating Rate October 25, 2030 AAA AAA N/A
Class A-6 Senior Adjustable Rate (1) Senior/Interest Only/Inverse October 25, 2030 AAA AAA N/A
Floating Rate
Class A-7 Senior 7.50% $7,400,000.00 Senior/Accretion October 25, 2030 AAA AAA N/A
Directed/Fixed Rate
Class A-8 Senior 7.75% $11,291,000.00 Senior/Accrual/Fixed Rate October 25, 2030 AAA AAA N/A
Class A-9 Senior 9.00% (1) Senior/Interest Only/Fixed Rate October 25, 2030 AAA AAA N/A
Class A-10 Senior 7.75% $54,750,000.00 Senior/Lockout/Fixed Rate October 25, 2030 AAA AAA N/A
Class A-11 Senior 8.00% $1,000,000.00 Senior/Senior October 25, 2030 AAA AAA N/A
Support/Lockout/Fixed Rate
Class A-12 Senior 9.00% (1) Senior/Interest Only/Fixed Rate October 25, 2030 AAA AAA N/A
Class A-13 Senior 0.00% $2,442,472.00 Senior/Principal Only October 25, 2030 AAA AAA N/A
Class A-14 Senior Variable Rate (1) Senior/Variable Rate/ October 25, 2030 AAA AAA N/A
Interest Only
Class R-I Senior 9.00% $100.00 Senior/Residual October 25, 2030 AAA AAA N/A
Class R-II Senior 9.00% $100.00 Senior/Residual October 25, 2030 AAA AAA N/A
Class M-1 Mezzanine 8.00% $11,543,000.00 Mezzanine/Fixed Rate October 25, 2030 N/A AA N/A
2
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Class A-1 Senior 7.25% $76,800,000.00 Senior/Sequential/Fixed Rate October 25, 2030 AAA AAA N/A
Class M-X Mezzanine 9.00% (1) Mezzanine/Interest Only/Fixed October 25, 2030 N/A AA N/A
Rate
Class M-2 Mezzanine 8.15% $5,950,000.00 Mezzanine/Fixed Rate October 25, 2030 N/A A N/A
Class M-3 Mezzanine 9.00% $3,500,000.00 Mezzanine/Fixed Rate October 25, 2030 N/A BBB N/A
Class B-1 Subordinate 9.00% $2,100,000.00 Subordinate/Fixed Rate October 25, 2030 N/A BB N/A
Class B-2 Subordinate 9.00% $1,225,000.00 Subordinate/Fixed Rate October 25, 2030 N/A B N/A
Class B-3 Subordinate 9.00% $1,926,741.68 Subordinate/Fixed Rate October 25, 2030 N/A N/A N/A
</TABLE>
-----------------------------
(1) Based on the related Notional Amount.
Solely 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 in the Mortgage Pool has been
designated as the "latest possible maturity date" for the Certificates.
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to approximately $349,928,413.
In consideration of the mutual agreements herein contained, the
Company, the Master Servicer and the Trustee agree as follows:
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.
"Accretion Directed Certificates": The Class A-7 Certificates.
"Accretion Termination Date": The earlier to occur of (i) the
Distribution Date on which the aggregate Certificate Principal Balance of the
Class A-7 Certificates has been reduced to zero and (ii) the Credit Support
Depletion Date.
"Accrual Certificates": The Class A-8 Certificates.
"Accrual Distribution Amount": With respect to each
Distribution Date prior to the Accretion Termination Date, an amount equal to
the amount of Accrued Certificate Interest on the Class A-8 Certificates for
such date, to the extent added to the Certificate Principal Balance thereof
pursuant to Section 4.01(g); provided that, with respect to each Distribution
Date on or after the Accretion Termination Date, an amount equal to the amount
of the Accrued Certificate Interest on the Class A-8 Certificates for such date
will be payable, as interest, to the Class A-8 Certificateholders pursuant to
Section 4.01(c)(i) hereof, to the extent not required to fully reduce the
3
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Certificate Principal Balance of the Class A-7 Certificates to zero on the
Accretion Termination Date; and provided further, that if the Accretion
Termination Date is the Credit Support Depletion Date, the entire amount of
Accrued Certificate Interest for that date will be payable to the Class A-8
Certificateholders pursuant to Section 4.01(c)(i) hereof.
"Accrued Certificate Interest": With respect to each
Distribution Date, (a) as to any Certificate other than the Interest Only
Certificates and the Principal Only Certificates, interest accrued during the
related Interest Accrual Period at the related Pass-Through Rate on the
Certificate Principal Balance thereof immediately prior to such Distribution
Date; (b) as to the Class A-2 Certificates, Class A-4 Certificates, Class A-6
Certificates, Class A-9 Certificates, Class A-12 Certificates and Class M-X
Certificates, the aggregate amount of interest accrued during the related
Interest Accrual Period at the related Pass-Through Rate on the related Notional
Amount thereof immediately prior to such Distribution Date; and (c) as to the
Class A-14 Certificates, the aggregate amount of interest accrued during the
related Interest Accrual Period at the then applicable Uncertificated REMIC I
Pass-Through Rate on each Uncertificated REMIC I IO Regular Interest on the
related Uncertificated REMIC I IO Notional Amount thereof immediately prior to
such Distribution Date. Accrued Certificate Interest will be calculated on the
basis of a 360-day year consisting of twelve 30-day months. In each case Accrued
Certificate Interest on any Class of Certificates will be reduced by the amount
of (i) Prepayment Interest Shortfalls, if any, which are not covered by the
Master Servicer with a payment of Compensating Interest pursuant to Section 3.23
with respect to such Distribution Date, (ii) the interest portion (adjusted to
the related Net Mortgage Rate) of Realized Losses (including Excess Special
Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses and Extraordinary
Losses) not allocated solely to one or more Classes of Certificates pursuant to
Section 4.04 and (iii) any other interest shortfalls not covered by the
subordination provided by the Class M Certificates or Class B Certificates,
including interest that is not collectible from the Mortgagor pursuant to the
Relief Act or similar legislation or regulations as in effect from time to time,
with all such reductions in clauses (i) through (iii) allocated among all of the
Certificates in proportion to their respective amounts of Accrued Certificate
Interest payable on such Distribution Date which would have resulted absent such
reductions. In addition to that portion of the reductions described in the
preceding sentence that are allocated to any Class of Class M Certificates or
Class B Certificates, Accrued Certificate Interest on any Class of the Class M
Certificates or Class B Certificates, as applicable, will be reduced by the
interest portion (adjusted to the related Net Mortgage Rate) of the portion of
Realized Losses that are allocated solely to the Class M Certificates and Class
B Certificates, as applicable, pursuant to Section 4.04. The Principal Only
Certificates do not have a Pass-Through Rate and are not entitled to Accrued
Certificate Interest.
"Advance": As to any Mortgage Loan, any advance made by the
Master Servicer on any Distribution Date pursuant to Section 4.03.
"Aggregate Stated Principal Balance": As of any date of
determination, the aggregate Stated Principal Balance of the Mortgage Loans.
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"Agreement": This Pooling and Servicing Agreement and all
amendments hereof.
"Anniversary": Each anniversary of September 1, 2000.
"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.
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the balance on deposit
in the Custodial Account as of the close of business on the related
Determination Date and (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, reduced by (b) the sum, as of the close of
business on the related Determination Date, of (i) Monthly Payments collected
but due during a Due Period subsequent to the Due Period ending on the first day
of the month of the related Distribution Date, (ii) all interest or other income
earned on deposits in the Custodial Account or the Certificate Account, (iii)
any other amounts reimbursable or payable to the Trustee, Master Servicer or any
Sub-Servicer pursuant to Section 3.11, (iv) the Servicing Fees payable on such
Distribution Date, (v) any amounts in respect of the premium payable to Radian
under the Radian PMI Pool Policy or the Radian Lender-Paid PMI Policies and (vi)
Insurance Proceeds, Liquidation Proceeds, Principal Prepayments, REO Proceeds
and the proceeds of Mortgage Loan purchases made pursuant to Section 2.02, 2.04,
3.14, 3.22 or 3.24, in each case received or made in the month of such
Distribution Date.
"Balloon Loan": Each of the Mortgage Loans identified in the
Mortgage Loan Schedule as having an original term to maturity that is shorter
than the related amortization term.
"Balloon Payment": With respect to any Balloon Loan, the
related Monthly Payment payable on the stated maturity date of such Balloon
Loan.
"Bankruptcy Amount": As of any date of determination prior to
the first Anniversary, an amount equal to the excess, if any, of (A) $1,749,642
over (B) the aggregate amount of Bankruptcy Losses allocated solely to one or
more specific Classes of Certificates in accordance with Section 4.04. As of any
date of determination on or after the first Anniversary, an amount equal to the
excess, if any, of the lesser of (a) the Bankruptcy Amount calculated as of the
close of business on the Business Day immediately preceding the most recent
Anniversary coinciding with or preceding such date of determination (or, if such
date of determination is an Anniversary, the Business Day immediately preceding
such date of determination) (for purposes of this definition, the "Relevant
Anniversary") and (b) the greater of (i) $1,749,642 and (ii) 0.0006 times the
aggregate principal balance of all the Mortgage Loans in the Mortgage Pool as of
the Relevant Anniversary having a Loan-to-Value Ratio at origination which
exceeds 75%.
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The Bankruptcy Amount may be further reduced by the Master Servicer
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall 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 and (ii) provide a copy of such
written confirmation to the Trustee.
"Bankruptcy Code": The Bankruptcy Code of 1978, as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a
Deficient Valuation or Debt Service Reduction.
"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.
"Buydown Funds": Any amount contributed by the seller of a
Mortgaged Property, the Company or other source in order to enable the Mortgagor
to reduce the payments required to be made from the Mortgagor's funds in the
early years of a Mortgage Loan. Buydown Funds are not part of the Trust Fund
prior to deposit into the Custodial or Certificate Account.
"Buydown Mortgage Loan": Any Mortgage Loan as to which a
specified amount of interest is paid out of related Buydown Funds in accordance
with a related buydown agreement.
"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 Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11,
Class A-12, Class A-13, Class A-14, Class M-1, Class M-X, Class M-2, Class M-3,
Class B-1, Class B-2, Class B-3, Class R-I or Class R-II Certificate.
"Certificate Account": The trust account or accounts created
and maintained pursuant to Section 4.01, which shall be entitled "Bankers Trust
Company of California, N.A., in trust for
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registered holders of Impac Secured Assets Corp., Mortgage Pass-Through
Certificates, Series 2000- 3, and which account or accounts must each be an
Eligible Account.
"Certificate Account Deposit Date": With respect to any
Distribution Date, the third Business Day immediately preceding such
Distribution Date.
"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 herein to "Holders" or "Certificateholders" shall reflect the rights
of Certificate Owners as they may indirectly exercise such rights through the
Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trustee shall be required to recognize as a
"Holder" or "Certificateholder" only the Person in whose name a Certificate is
registered in the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate,
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
Certificate other than an Interest Only Certificate, on any date of
determination, an amount equal to (i) the Initial Certificate Principal Balance
of such Certificate as specified on the face thereof, plus (ii) in the case of
each Accrual Certificate, an amount equal to the aggregate Accrued Certificate
Interest added to the Certificate Principal Balance thereof prior to such date
of determination minus (iii) the sum of (a) the aggregate of all amounts
previously distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal Balance thereof
pursuant to Section 4.01, and (b) the aggregate of all reductions in Certificate
Principal Balance deemed to have occurred in connection with Realized Losses
which were previously allocated to such Certificate (or any predecessor
Certificate) pursuant to Section 4.04. With respect to each Class M Certificate
(other than the Class M-X Certificates), on any date of determination, an amount
equal to (i) the Initial Certificate Principal Balance of such Class M
Certificate as specified on the face thereof, minus (ii) the sum of (x) the
aggregate of all amounts previously distributed with respect to such Certificate
(or any predecessor Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.01 and (y) the aggregate of all reductions
in Certificate Principal Balance deemed to have occurred in connection with
Realized Losses which were previously allocated to such Certificate (or any
predecessor Certificate) pursuant to Section 4.04; provided, that if the
Certificate Principal
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Balances of all of the Class B Certificates have been reduced to zero, the
Certificate Principal Balance of each Class M Certificate of those Class M
Certificates outstanding with the highest numerical designation at any given
time shall thereafter be calculated to equal the Percentage Interest evidenced
by such Certificate times the excess, if any, of (A) the then aggregate Stated
Principal Balance of the Mortgage Loans over (B) the then aggregate Certificate
Principal Balance of all Certificates of all other Classes then outstanding.
With respect to each Class B Certificate, on any date of determination, an
amount equal to (i) the Initial Certificate Principal Balance of such Class B
Certificate as specified on the face thereof, minus (ii) the sum of (x) the
aggregate of all amounts previously distributed with respect to such Certificate
(or any predecessor Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.01 and (y) the aggregate of all reductions
in Certificate Principal Balance deemed to have occurred in connection with
Realized Losses which were previously allocated to such Certificate (or any
predecessor Certificate) pursuant to Section 4.04; provided, that the
Certificate Principal Balance of each Class B Certificate of those Class B
Certificates outstanding with the highest numerical designation at any given
time shall be calculated to equal the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate Stated Principal
Balance of the Mortgage Loans over (B) the then aggregate Certificate Principal
Balance of all Certificates of all other Classes then outstanding. The Interest
Only Certificates have no Certificate Principal Balance.
"Certificate Register": The register maintained pursuant to
Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same designation.
"Class A Certificate": Any one of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9,
Class A-10, Class A-11, Class A-12, Class A-13 or Class A-14 Certificates, each
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit A and each evidencing an interest designated as a
"regular interest" in REMIC II for purposes of the REMIC Provisions.
"Class B Certificate": Any one of the Class B-1 Certificates,
Class B-2 Certificates or Class B-3 Certificates.
"Class B Percentage": The Class B-1 Percentage, Class B-2
Percentage and Class B-3 Percentage.
"Class B-1 Certificate": Any one of the Class B-1 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-2, subordinate to the Class A Certificates and the
Class M Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.04 and evidencing an interest
designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Class B-1 Percentage": With respect to any Distribution Date,
the lesser of 100% and a fraction, expressed as a percentage, the numerator of
which is the aggregate Certificate
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Principal Balance of the Class B-1 Certificates immediately prior to such
Distribution Date and the denominator of which is the aggregate Stated Principal
Balance of all of the Mortgage Loans (or related REO Properties) (other than the
related Discount Fraction of each Discount Mortgage Loan) immediately prior to
such Distribution Date.
"Class B-1 Prepayment Distribution Trigger": With respect to
any Distribution Date, a test that shall be satisfied if the fraction (expressed
as a percentage) equal to the sum of the Certificate Principal Balances of the
Class B-1 Certificates, Class B-2 Certificates and Class B-3 Certificates
immediately prior to such Distribution Date divided by the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date is greater than or equal to 1.50%.
"Class B-2 Certificate": Any one of the Class B-2 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-2, subordinate to the Class A Certificates, Class M
Certificates and Class B-1 Certificates with respect to distributions and the
allocation of Realized Losses as set forth in Section 4.04 and evidencing an
interest designated as a "regular interest" in REMIC II for purposes of the
REMIC Provisions.
"Class B-2 Percentage": With respect to any Distribution Date,
the lesser of 100% and a fraction, expressed as a percentage, the numerator of
which is the aggregate Certificate Principal Balance of the Class B-2
Certificates immediately prior to such Distribution Date and the denominator of
which is the aggregate Stated Principal Balance of all of the Mortgage Loans
(and related REO Properties) (other than the related Discount Fraction of each
Discount Mortgage Loan) immediately prior to such Distribution Date.
"Class B-2 Prepayment Distribution Trigger": With respect to
any Distribution Date, a test that shall be satisfied if the fraction (expressed
as a percentage) equal to the sum of the Certificate Principal Balances of the
Class B-2 Certificates and Class B-3 Certificates immediately prior to such
Distribution Date divided by the aggregate Stated Principal Balance of all of
the Mortgage Loans (and related REO Properties) immediately prior to such
Distribution Date is greater than or equal to 0.90%.
"Class B-3 Certificate": Any one of the Class B-3 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-2, subordinate to the Class A Certificates, Class M
Certificates, Class B-1 Certificates and Class
B-2
Certificates with respect to distributions and the allocation of Realized Losses
as set forth in Section 4.04 and evidencing an interest designated as a "regular
interest" in REMIC II for purposes of the REMIC Provisions.
"Class B-3 Percentage": With respect to any Distribution Date,
the lesser of 100% and a fraction, expressed as a percentage, the numerator of
which is the aggregate Certificate Principal Balance of the Class B-3
Certificates immediately prior to such Distribution Date and the denominator of
which is the aggregate Stated Principal Balance of all of the Mortgage Loans
(and
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<PAGE>
related REO Properties) (other than the related Discount Fraction of each
Discount Mortgage Loan) immediately prior to such Distribution Date.
"Class B-3 Prepayment Distribution Trigger": With respect to
any Distribution Date, a test that shall be satisfied if the fraction (expressed
as a percentage) equal to the aggregate Certificate Principal Balance of the
Class B-3 Certificates immediately prior to such Distribution Date divided by
the aggregate Stated Principal Balance of all of the Mortgage Loans (or related
REO Properties) immediately prior to such Distribution Date is greater than or
equal to 0.55%.
"Class M Certificate": Any one of the Class M-1 Certificates,
Class M-X Certificates, Class M-2 Certificates or Class M-3 Certificates.
"Class M Percentage": The Class M-1 Percentage, Class M-2
Percentage and Class M-3 Percentage.
"Class M-1 Certificate": Any one of the Class M-1 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-1, subordinate to the Class A Certificates with
respect to distributions and the allocation of Realized Losses as set forth in
Section 4.04 and evidencing an interest designated as a "regular interest" in
REMIC II for purposes of the REMIC Provisions.
"Class M-1 Percentage": With respect to any Distribution Date,
the lesser of 100% and a fraction, expressed as a percentage, the numerator of
which is the aggregate Certificate Principal Balance of the Class M-1
Certificates immediately prior to such date and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) (other than the related Discount Fraction of each Discount Mortgage
Loan) immediately prior to such Distribution Date.
"Class M-X Certificate": Any one of the Class M-X Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-1, evidencing an interest designated as a "regular
interest" in REMIC II for purposes of the REMIC Provisions. Distributions of
interest to the Class M-X Certificates and the allocation of Realized Losses to
the Class M-X Certificates will be based on the Notional Amount thereof. The
Class M-X Certificate is subordinate to the Class A Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section 4.04
and evidencing an interest designated as a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class M-2 Certificate": Any one of the Class M-2 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-1, subordinate to the Class A and Class M-1
Certificates with respect to distributions and the allocation of Realized Losses
as set forth in Section 4.04 and evidencing an interest designated as a "regular
interest" in REMIC II for purposes of the REMIC Provisions.
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<PAGE>
"Class M-2 Percentage": With respect to any Distribution Date,
the lesser of 100% and a fraction, expressed as a percentage, the numerator of
which is the aggregate Certificate Principal Balance of the Class M-2
Certificates immediately prior to such date and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) (other than the related Discount Fraction of each Discount Mortgage
Loan) immediately prior to such Distribution Date.
"Class M-2 Prepayment Distribution Trigger": With respect to
any Distribution Date, a test that shall be satisfied if the fraction (expressed
as a percentage) equal to the sum of the Certificate Principal Balances of the
Class M-2 Certificates, Class M-3 Certificates, Class B-1 Certificates, Class
B-2 Certificates and Class B-3 Certificates immediately prior to such
Distribution Date divided by the aggregate Stated Principal Balance of all of
the Mortgage Loans (or related REO Properties) immediately prior to such
Distribution Date is greater than or equal to 4.20%.
"Class M-3 Certificate": Any one of the Class M-3 Certificates
executed, authenticated and delivered by the Trustee substantially in the form
annexed hereto as Exhibit B-1, subordinate to the Class A, Class M-1, Class M-X
and Class M-2 Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.04 and evidencing an interest
designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Class M-3 Percentage": With respect to any Distribution Date,
the lesser of 100% and a fraction, expressed as a percentage, the numerator of
which is the aggregate Certificate Principal Balance of the Class M-3
Certificates immediately prior to such date and the denominator of which is the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) (other than the related Discount Fraction of each Discount Mortgage
Loan) immediately prior to such Distribution Date.
"Class M-3 Prepayment Distribution Trigger": With respect to
any Distribution Date, a test that shall be satisfied if the fraction (expressed
as a percentage) equal to the sum of the Certificate Principal Balances of the
Class M-3 Certificates, Class B-1 Certificates, Class B-2 Certificates and Class
B-3 Certificates immediately prior to such Distribution Date divided by the
aggregate Stated Principal Balance of all of the Mortgage Loans (and related REO
Properties) immediately prior to such Distribution Date is greater than or equal
to 2.50%.
"Class R Certificate": Any one of the Class R-I Certificates
or Class R-II Certificates.
"Class R-I Certificate": Any one of the Class R-I Certificates
executed by the Trustee and authenticated by the Trustee substantially in the
form annexed hereto as Exhibit B-3 and evidencing an interest designated as a
"residual interest" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Class R-II
Certificates executed by the Trustee and authenticated by the Trustee
substantially in the form annexed hereto as Exhibit B-3 and
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evidencing an interest designated as a "residual interest" in REMIC II for
purposes of the REMIC Provisions.
"Closing Date": September 28, 2000.
"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, an amount equal to Prepayment Interest Shortfalls resulting from Principal
Prepayments during the related Prepayment Period, but not more than the
Servicing Fees for the immediately preceding Due Period.
"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 1761 East St. Andrew Place, Santa Ana,
California 92705, Attention: Corporate Trust, Impac Secured Assets Corp. Series
2000- 3.
"Credit Support Depletion Date": The first Distribution Date
on which the Senior Percentage equals 100%.
"Curtailment": Any Principal Prepayment made by a Mortgagor
which is not a Principal Prepayment in Full.
"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.
"Cut-off Date": September 1, 2000.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a
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proceeding under the Bankruptcy Code, except such a reduction constituting a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
"Defaulted Mortgage Loan" means any Mortgage Loan as to which
the Mortgagor has failed to make unexcused three or more consecutive scheduled
Monthly Payments.
"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.
"Depository Participant": A broker, dealer, bank or other
financial institutions or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": The 15th day (or if such 15th day is not
a Business Day, the Business Day immediately preceding such 15th day) of the
month of the related Distribution Date.
"Discount Fraction": With respect to each Discount Mortgage
Loan, the fraction expressed as a percentage, the numerator of which is 9.000%
minus the Net Mortgage Rate (or the initial Net Mortgage Rate with respect to
any Discount Mortgage Loans as to which the Mortgage Rate for such Mortgage Loan
is modified pursuant to Article III of this Agreement) and the denominator of
which is 9.000%.
"Discount Mortgage Loan": Any Mortgage Loan having a Net
Mortgage Rate (or the initial Net Mortgage Rate) of less than 9.000% per annum
and any Mortgage Loan deemed to be a Discount Mortgage Loan pursuant to the
definition of Qualified Substitute Mortgage Loan.
"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
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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 by such Person may
cause either REMIC I or REMIC II or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Class R Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
"Distribution Date": The 25th day of any month, or if such
25th day is not a Business Day, the Business Day immediately following such 25th
day, commencing in October 2000.
"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 related Due Date.
"Eligible Account": An account maintained with a federal or
state chartered depository institution (i) the short-term obligations of which
are rated A-1 or better by Standard & Poor's, F-1 or better by Fitch and P-1 by
Moody's at the time of any deposit therein, or (ii) insured by the FDIC (to the
limits established by such Corporation), the uninsured deposits in which account
are otherwise secured such that, as evidenced by an Opinion of Counsel (obtained
by the Person requesting that the account be held pursuant to this clause (ii))
delivered to the Trustee prior to the establishment of such account, the
Certificateholders will have a claim with respect to the funds in such account
and a perfected first priority security interest against any collateral (which
shall be limited to Permitted Investments, each of which shall mature not later
than the Business Day immediately preceding the Distribution Date next following
the date of investment in such collateral or the Distribution Date if such
Permitted Investment is an obligation of the institution that maintains the
Certificate Account or Custodial Account) securing such funds that is superior
to claims of any other depositors or general creditors of the depository
institution with which such account is maintained or (iii) a trust account or
accounts maintained with a federal or state chartered depository institution or
trust company with trust powers acting in its fiduciary capacity or (iv) an
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
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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.
"Eligible Funds": On any Distribution Date, the portion, if
any, of the Available Distribution Amount remaining after reduction by the sum
of (i) the Trustee's Fees for such Distribution Date, (ii) the aggregate amount
of Accrued Certificate Interest on the Class A and Class R Certificates, (iii)
the Senior Principal Distribution Amount, (iv) the Principal Only Distribution
Amount (determined without regard to Section 4.01(d)(i)(E) hereof) and (v) the
aggregate amount of Accrued Certificate Interest on the Class M, Class B-1 and
Class B-2 Certificates.
"Event of Default": One or more of the events described in
Section 7.01.
"Excess Bankruptcy Loss": Any Bankruptcy Loss, or portion
thereof, which exceeds the then applicable Bankruptcy Amount.
"Excess Fraud Loss": Any Fraud Loss, or portion thereof, which
exceeds the then applicable Fraud Loss Amount.
"Excess Proceeds": As defined in Section 3.22.
"Excess Special Hazard Loss": Any Special Hazard Loss, or
portion thereof, that exceeds the then applicable Special Hazard Amount.
"Extraordinary Events": Any of the following conditions with
respect to a Mortgaged Property or Mortgage Loan causing or resulting in a loss
which causes the liquidation of such Mortgage Loan:
(a) losses which are otherwise covered by the fidelity bond
and the errors and omissions insurance policy maintained pursuant to
Section 3.18, but are in excess of the coverage maintained thereunder;
(b) nuclear reaction or nuclear radiation or radioactive
contamination, all whether controlled or uncontrolled, or remote or be
in whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss";
(c) hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against an
actual, impending or expected attack;
1. by any government or sovereign power, de jure or
de facto, or by any authority maintaining or using military,
naval or air forces; or
2. by military, naval or air forces; or
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3. by an agent of any such government, power,
authority or forces;
(d) any weapon of war employing atomic fission or radioactive
force whether in time of peace or war; or
(e) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering, combating
or defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any
government or public authority; or risks of contraband or illegal
transportation or trade.
"Extraordinary Losses": Any loss incurred on a Mortgage Loan
caused by or resulting from an Extraordinary Event.
"Fannie Mae": Federal National Mortgage Association or any
successor.
"FDIC": Federal Deposit Insurance Corporation or any
successor.
"Fitch": Fitch, Inc., or any successor.
"Fraud Loss Amount": As of any date of determination after the
Cut-off Date, an amount equal to: (X) prior to the second Anniversary, an amount
equal to 2.00% of the aggregate outstanding principal balance of all of the
Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 4.04 since the Cut-off Date up to such date of determination and
(Y) from the second to the fifth Anniversary, an amount equal to the lesser of
(a) the Fraud Loss Amount as of the most recent anniversary of the Cut-off Date
and (b) 1.00% of the aggregate outstanding principal balance of all of the
Mortgage Loans as of the most recent Anniversary minus (2) the Fraud Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 4.04 since the most recent Anniversary up to such date of
determination. On and after the fifth Anniversary, the Fraud Loss Amount shall
be zero.
The Fraud Loss Amount may be further reduced by the Master
Servicer (including accelerating the manner in which such coverage is reduced)
provided that prior to any such reduction, the Master Servicer shall (i) obtain
written confirmation from each Rating Agency that such reduction shall 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 and (ii) provide a
copy of such written confirmation to the Trustee.
"Fraud Losses": Losses on Mortgage Loans as to which there was
fraud in the origination of such Mortgage Loan.
"Freddie Mac": Federal Home Loan Mortgage Corporation or any
successor.
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"Funding Date": With respect to each Mortgage Loan, the date
on which funds were advanced by or on behalf of the Seller and interest began to
accrue thereunder.
"Initial Certificate Principal Balance": With respect to each
Class of Certificates (other than the Interest Only Certificates), the
Certificate Principal Balance of such Class of Certificates as of the Cut-off
Date 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 A-2,
Class A-4, Class A-6, Class A-9, Class A-12 and Class M-X Certificates,
$14,993,333.00, $50,000,000.00, $120,000,000.00, $2,801,527.00, $7,715,277.00
and $1,844,500.00, respectively. With respect to the Class A-14 Certificates,
the aggregate Stated Principal Balance of Non-Discount Mortgage Loans as of the
Cut- off Date; provided, however, that for purposes of the Depository, the face
of the Class A-14 Certificate, and the statements to Certificateholders, the
Company, the Master Servicer and the Rating Agencies prepared pursuant to
Section 4.02, the Initial Notional Amount shall be $28,298,143.
"Insurance Policy": With respect to any Mortgage Loan, any
insurance policy (including a Radian PMI Pool Policy or 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 Accrual Period": With respect to any Certificate
(other than a Class A-3, Class A-4, Class A-5 or Class A-6 Certificate) and each
Uncertificated REMIC I IO Regular Interest, and any Distribution Date the
calendar month preceding the month in which the Distribution Date occurs. The
Interest Accrual Period for the Class A-3, Class A-4, Class A-5 and Class A-6
Certificates is the one-month period commencing on the 25th day of the month
preceding the month in which such Distribution Date occurs and ending on the
24th day of the month in which such Distribution Date occurs.
"Interest Only Certificate": Any Class A-2, Class A-4, Class
A-6, Class A-9, Class A-12, Class A-14 or Class M-X Certificates.
"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, Liquida tion Proceeds or otherwise, which
represent late payments or collections of Monthly Payments due but delinquent
for a previous Due Period and not previously recovered.
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"LIBOR": With respect to any Distribution Date and the
Pass-Through Rates on the Class A-3, Class A-4, Class A-5 and Class A-6
Certificates, the arithmetic mean of the London interbank offered rate
quotations of reference banks (which will be selected by the Trustee after
consultation with the Master Servicer) for one-month U.S. dollar deposits,
expressed on a per annum basis, determined in accordance with Section 1.02.
"LIBOR Business Day": Any day other than (i) a 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.
"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.
"Lockout Certificates": The Class A-10 Certificates and Class
A-11 Certificates.
"Lockout Priority Amount": For any Distribution Date, the
lesser of (i) the aggregate Certificate Principal Balance of the Lockout
Certificates and (ii) the sum of (x) the product of (1) the Lockout Priority
Percentage, (2) the Lockout Shift Percentage, and (3) the amounts described in
Section 4.01(c)(ii)(Y)(A) (without giving effect to the Senior Percentage) and
(y) the product of (1) the Lockout Priority Percentage, (2) the Lockout
Prepayment Priority Percentage and (3) the amounts described in Section
4.01(c)(ii)(Y)(B) and (C) (in each case without giving effect to the Senior
Percentage or the Senior Accelerated Distribution Percentage).
"Lockout Priority Percentage" With respect to any Distribution
Date, the lesser of (i) 100% and (ii) a fraction equal to (x) the sum of (a) the
Certificate Principal Balance of the Lockout Certificates immediately prior to
such Distribution Date and (b) $25,500,000 divided by (y) the aggregate Stated
Principal Balance of the Mortgage Loans (other than the related Discount
Fraction of each Discount Mortgage Loan).
"Lockout Prepayment Priority Percentage" With respect to any
Distribution Date, the percentage indicated below:
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Lockout Prepayment
Month of Distribution Date Priority Percentage
-------------------------- -------------------
October 2000 through September 2005..................... 0%
October 2005 through September 2006..................... 30%
October 2006 through September 2007..................... 40%
October 2007 through September 2008..................... 60%
October 2008 through September 2009..................... 80%
October 2009 and thereafter............................. 100%
"Lockout Shift Percentage" With respect to any Distribution
Date on or prior to the Distribution Date occurring in September 2005, 0%, and
thereafter, 100%.
"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.
"Maturity Date": The latest possible maturity date, solely for
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which
(i) the Certificate Principal Balance of each Class of Certificates (other than
the Interest Only Certificates) or (ii) the Notional Amount of each Class of
Interest Only Certificates would be reduced to zero, which is October 25, 2030,
the Distribution Date immediately following the latest scheduled maturity date
of any Mortgage Loan.
"Master Servicer": Impac Funding Corporation, or any successor
master servicer appointed as herein provided.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and interest on such Mortgage Loan which
is payable by a Mortgagor from time to time under the related Mortgage Note as
originally executed (after adjustment, if any, for Deficient Valuations
occurring prior to such Due Date, and after any adjustment by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver or grace
period).
"Moody's": 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; provided, that
whenever the term "Mortgage File" is used to refer to documents actually
received by the Trustee, 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 or Section 2.04 and from time
to time held in the Trust Fund
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(including any Qualified Substitute Mortgage Loans), the Mortgage Loans so
transferred, assigned and held being identified in the Mortgage Loan Schedule.
As used herein, the term "Mortgage Loan" includes the related Mortgage Note and
Mortgage.
"Mortgage Loan Purchase Agreement": The Mortgage Loan Purchase
Agreement dated as of September 1, 2000, 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 initial 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 (as amended from time to time to reflect the addition of Qualified
Substitute Mortgage Loans) (and, for purposes of the Trustee pursuant to Section
2.02, in computer-readable form as delivered to the Trustee), 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) (A) the original term to maturity and (B) if such
Mortgage Loan is a Balloon Loan, the amortization
term thereof;
(iv) the original principal balance and the original
Mortgage Rate;
(v) the first payment date;
(vi) whether the Mortgage Loan is a Balloon Mortgage Loan
or a Mortgage Loan the terms of which do not provide
for a Balloon Payment;
(vii) the type of Mortgaged Property;
(viii) the Monthly Payment in effect as of the Cut-off Date;
(ix) the principal balance as of the Cut-off Date;
(xi) the Mortgage Rate as of the Cut-off Date and the Pool
Strip Rate;
(xii) the occupancy status;
(xiii) the purpose of the Mortgage Loan;
(xiv) the Collateral Value of the Mortgaged Property;
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(xv) the original term to maturity;
(xvi) the paid-through date of the Mortgage Loan;
(xvii) the Servicing Fee Rate;
(xviii) the Net Mortgage Rate for such Mortgage Loan;
(xix) whether such Mortgage Loan is a Radian PMI Loan and,
if so, the related Radian PMI Policy Rate, and
whether the Radian PMI Loan is covered by Radian PMI
Pool Policy or a Radian Lender-Paid PMI Policy;
(xx) whether the Mortgage Loan is covered by a private
mortgage insurance policy or an original certificate
of private mortgage insurance; and
(xxi) the documentation type.
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 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 Servicing Fee Rate and the Trustee Fee
Rate and, with respect to the Radian Insured Loans, the Radian PMI Policy Rate.
"Non-Discount Mortgage Loan": The Mortgage Loans other than
the Discount Mortgage Loans.
"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
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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.
"Notional Amount":
(i) With respect to the Class A-14 Certificates as of any
Distribution Date, the aggregate Stated Principal Balance of the Non-Discount
Mortgage Loans as of the first date of the related Due Period for such
Distribution Date; provided however that solely for purposes of providing the
statements to the Certificateholders, the Company, the Master Servicer and the
Rating Agencies required by Section 4.02, the Notional Amount for the Class A-14
Certificates shall be calculated as the product of (a) the fraction, the
numerator of which is the excess of the weighted average (by Stated Principal
Balance) of the Net Mortgage Rates of the Non-Discount Mortgage Loans over
9.00%, and the denominator of which is 9.00%, and (b) the aggregate Stated
Principal Balance of the then outstanding Non-Discount Mortgage Loans;
(ii) with respect to the Class A-2 Certificates as of any
Distribution Date, 7/36 multiplied by the Certificate Principal Balance of the
Class A-1 Certificates, immediately prior to such date. However, for federal
income tax purposes, the Notional Amount of the Class A-2 Certificates will be
the Uncertificated Principal Balance of Uncertificated REMIC I Regular Interest
N;
(iii) with respect to the Class A-4 Certificates as of any
Distribution Date, the Certificate Principal Balance of the Class A-3
Certificates, immediately prior to such date. However, for federal income tax
purposes, the Notional Amount of the Class A-4 Certificates will be the
Uncertificated Principal Balance of Uncertificated REMIC I Regular Interest O;
(iv) with respect to the Class A-6 Certificates as of any
Distribution Date, the Certificate Principal Balance of the Class A-5
Certificates, immediately prior to such date. However, for federal income tax
purposes, the Notional Amount of the Class A-6 Certificates will be the
Uncertificated Principal Balance of Uncertificated REMIC I Regular Interest P;
(v) with respect to the Class A-9 Certificates and any
Distribution Date, the sum of (i) 1/6 multiplied by the Certificate Principal
Balance of the Class A-7 Certificates and (ii) 5/36 multiplied by the
Certificate Principal Balance of the Class A-8 Certificates, in each case
immediately prior to such date. However, for federal income tax purposes, the
Notional Amount of the Class A-9 Certificates will be the aggregate
Uncertificated Principal Balance of Uncertificated REMIC I Regular Interests Q
and S;
(vi) with respect to the Class A-12 Certificates and any
Distribution Date, the sum of (i) 5/36 multiplied by the Certificate Principal
Balance of the Class A-10 Certificates and (ii) 1/9 multiplied by the
Certificate Principal Balance of the Class A-11 Certificates, in each case
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immediately prior to such date. However, for federal income tax purposes, the
Notional Amount of the Class A-12 Certificates will be the aggregate
Uncertificated Principal Balance of Uncertificated REMIC I Regular Interests T
and U; and
(vii) with respect to the Class M-X Certificates and any
Distribution Date, the sum of (i) 1/9 multiplied by the Certificate Principal
Balance of the Class M-1 Certificates and (ii) 17/180 multiplied by the
Certificate Principal Balance of the Class M-2 Certificates, in each case
immediately prior to such date. However, for federal income tax purposes, the
Notional Amount of the Class M-X Certificates will be the aggregate
Uncertificated Principal Balances of Uncertificated REMIC I Regular Interest V
and W.
"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.
"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 I or REMIC II
as REMICs, (c) compliance with the REMIC Provisions or (d) resignation of the
Master Servicer pursuant to Section 6.04 must be an opinion of counsel who (i)
is in fact independent of the 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.
"Original Senior Percentage": The fraction, expressed as a
percentage, the numerator of which is the aggregate Initial Certificate
Principal Balance of the Senior Certificates (other than the Principal Only
Certificates) and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans (other than the Discount Fraction of the Discount
Mortgage Loans) as of the Cut-off Date, which percentage is approximately 92.45%
as of the Closing Date.
"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, 3.14 or 3.24.
"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.
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"Pass-Through Rate": A rate equal to, (i) with respect to all
Certificates other than the Class A-3, Class A-4, Class A-5, Class A-6, Class
A-14 and Principal Only Certificates, a fixed rate set forth in the Preliminary
Statement hereto; provided however, (a) for federal income tax purposes, the
Pass-Through Rate for the Class A-2 Certificates will be 1.75% per annum, (b)
the Pass-Through Rate for the Class A-9 Certificates will be 1.50% per annum
with respect to that portion of the Class A-9 Certificates relating to
Uncertificated REMIC I Regular Interest Q and 1.25% per annum with respect to
that portion of the Class A-9 Certificates relating to Uncertificated REMIC I
Regular Interest S, (c) the Pass-Through Rate for the Class A-12 Certificates
will be 1.25% per annum with respect to that portion of the Class A-12
Certificates relating to Uncertificated REMIC I Regular Interest T and 1.00% per
annum with respect to that portion of the Class A-12 Certificates relating to
Uncertificated REMIC I Regular Interest U, and (d) the Pass-Through Rate for the
Class M-X Certificates will be 1.00% per annum with respect to that portion of
the Class M-X Certificates relating to Uncertificated REMIC I Regular Interest V
and 0.85% per annum with respect to that portion of the Class M-X Certificates
relating to Uncertificated REMIC I Regular Interest W, and (ii) with respect to
the Class A-3, Class A-4, Class A-5 and Class A-6 Certificates, as follows:
(1) The Pass-Through Rate on the Class A-3 Certificates with
respect to the initial Interest Accrual Period is 7.12% per annum, and
as to any Interest Accrual Period thereafter, will be a per annum rate
equal to 0.50% plus LIBOR, with a maximum rate of 9.00% per annum and a
minimum rate of 0.50% per annum;
(2) The Pass-Through Rate on the Class A-4 Certificates with
respect to the initial Interest Accrual Period is 1.88% per annum, and
as to any Interest Accrual Period thereafter, will be a per annum rate
equal to 8.50% minus LIBOR, with a maximum rate of 8.50% per annum and
a minimum rate of 0.00% per annum;
(3) The Pass-Through Rate on the Class A-5 Certificates with
respect to the initial Interest Accrual Period is 7.32% per annum, and
as to any Interest Accrual Period thereafter, will be a per annum rate
equal to 0.70% plus LIBOR, with a maximum rate of 9.00% per annum and a
minimum rate of 0.70% per annum; and
(2) The Pass-Through Rate on the Class A-6 Certificates with
respect to the initial Interest Accrual Period is 1.68% per annum, and
as to any Interest Accrual Period thereafter, will be a per annum rate
equal to 8.30% minus LIBOR, with a maximum rate of 8.30% per annum and
a minimum rate of 0.00% per annum;
and (iii) with respect to the Class A-14 Certificates, the weighted average (by
Stated Principal Balance) of the Pool Strip Rates on the Non-Discount Mortgage
Loans; provided however that solely for purposes of the Depository and providing
the statements to the Certificateholders, the Company, the Master Servicer and
the Rating Agencies required by Section 4.02, the Pass-Through Rate for the
Class A-14 Certificates shall be 9.00%.
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The Principal Only Certificates do not have a Pass-Through Rate and are not
entitled to Accrued Certificate Interest.
"Percentage Interest": With respect to any Certificate (other
than a Class R 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 or Initial
Notional Amount thereof (in the case of the Interest Only Certificates) divided
by the aggregate Initial Certificate Principal Balance or initial Notional
Amount, as applicable, of all of the Certificates of the same Class. With
respect to a Class R Certificate, the interest in distributions to be made with
respect to such Class evidenced thereby, expressed as a percentage, as stated on
the face of each such Certificate.
"Permitted Investment": One or more of the following:
(i) obligations of or guaranteed as to principal and interest
by the United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause
(i) maturing not more than one month from the date of acquisition
thereof, provided that the unsecured obligations of the party agreeing
to repurchase such obligations are at the time rated by each Rating
Agency in its highest short-term rating available;
(iii) federal funds, certificates of deposit, demand deposits,
time deposits and bankers' acceptances (which shall each have an
original maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more than
365 days or a remaining maturity of more than 30 days) denominated in
United States dollars of any U.S. depository institution or trust
company incorporated under the laws of the United States or any state
thereof or of any domestic branch of a foreign depository institution
or trust company; provided that the debt obligations of such depository
institution or trust company (or, if the only Rating Agency is Standard
& Poor's, in the case of the principal depository institution in a
depository institution holding company, debt obligations of the
depository institution holding company) at the date of acquisition
thereof have been rated by each Rating Agency in its highest short-term
rating available; and provided further that, if the only Rating Agency
is Standard & Poor's and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations
of such subsidiary are not separately rated, the applicable rating
shall be that of the bank holding company; and, provided further that,
if the original maturity of such short-term obligations of a domestic
branch of a foreign depository institution or trust company shall
exceed 30 days, the short-term rating of such institution shall be A-1+
in the case of Standard & Poor's if Standard & Poor's is the Rating
Agency;
(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
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on the date of acquisition has been rated by Fitch in its highest
short-term rating available and by Standard & Poor's at least A-1;
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 each Rating Agency in its highest long-term rating available,
including any such funds for which Bankers Trust Company of California,
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.
"Pool Strip Rate": With respect to any Distribution Date and
any Mortgage Loan, the Net Mortgage Rate thereon minus 9.000%, but not less than
0.000%.
"Prepayment Assumption": represents an assumed rate of
prepayment each month relative to the then outstanding principal balance of a
pool of new mortgage loans. A prepayment assumption of 100% of the Prepayment
Assumption assumes a constant prepayment rate of 4% per annum of the then
outstanding principal balance of such mortgage loans in the first month of the
life of the mortgage loans and an additional amount of approximately 1.2727% per
annum in each month thereafter until the twelfth month. Beginning in the twelfth
month and in each month thereafter during the life of the mortgage loans, 100%
of the Prepayment Assumption assumes a constant prepayment rate of 18% per annum
each month.
"Prepayment Distribution Percentage": With respect to any
Distribution Date and each Class of Class M Certificates and Class B
Certificates, under the applicable circumstances set forth below, the respective
percentages set forth below:
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(i) For any Distribution Date on which any Class of Class M
Certificates or Class B Certificates are outstanding:
(a) in the case of the Class of Class M Certificates
then outstanding with the lowest numerical designation, or in
the event the Class M Certificates are no longer outstanding,
the Class of Class B Certificates then outstanding with the
lowest numerical designation and each other Class of Class M
Certificates and Class B Certificates for which the related
Prepayment Distribution Trigger has been satisfied, a
fraction, expressed as a percentage, the numerator of which is
the Certificate Principal Balance of such Class immediately
prior to such date and the denominator of which is the sum of
the Certificate Principal Balances immediately prior to such
date of (1) the Class of Class M Certificates then outstanding
with the lowest numerical designation, or in the event the
Class M Certificates are no longer outstanding, the Class of
Class B Certificates then outstanding with the lowest
numerical designation and (2) all other Classes of Class M
Certificates and Class B Certificates for which the respective
Prepayment Distribution Triggers have been satisfied; and
(b) in the case of each other Class of Class M
Certificates and Class B Certificates for which the Prepayment
Distribution Triggers have not been satisfied, 0%; and
(ii) Notwithstanding the foregoing, if the application of the
foregoing percentages on any Distribution Date as provided in Section
4.01 (determined without regard to the proviso to the definition of
"Subordinate Principal Distribution Amount") would result in a
distribution in respect of principal of any Class or Classes of Class M
Certificates and Class B Certificates in an amount greater than the
remaining Certificate Principal Balance thereof (any such class, a
"Maturing Class"), then: (a) the Prepayment Distribution Percentage of
each Maturing Class shall be reduced to a level that, when applied as
described above, would exactly reduce the Certificate Principal Balance
of such Class to zero; (b) the Prepayment Distribution Percentage of
each other Class of Class M Certificates and Class B Certificates (any
such Class, a "Non-Maturing Class") shall be recalculated in accordance
with the provisions in paragraph (i) above, as if the Certificate
Principal Balance of each Maturing Class had been reduced to zero (such
percentage as recalculated, the "Recalculated Percentage"); (c) the
total amount of the reductions in the Prepayment Distribution
Percentages of the Maturing Class or Classes pursuant to clause (a) of
this sentence, expressed as an aggregate percentage, shall be allocated
among the Non-Maturing Classes in proportion to their respective
Recalculated Percentages (the portion of such aggregate reduction so
allocated to any Non-Maturing Class, the "Adjustment Percentage"); and
(d) for purposes of such Distribution Date, the Prepayment Distribution
Percentage of each Non- Maturing Class shall be equal to the sum of (1)
the Prepayment Distribution Percentage thereof, calculated in
accordance with the provisions in paragraph (i) above as if the
Certificate Principal Balance of each Maturing Class had not been
reduced to zero, plus (2) the related Adjustment Percentage.
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"Prepayment Distribution Trigger": The Class M-2 Prepayment
Distribution Trigger, Class M-3 Prepayment Distribution Trigger, Class B-1
Prepayment Distribution Trigger, Class B-2 Prepayment Distribution Trigger or
Class B-3 Prepayment Distribution Trigger.
"Prepayment Interest Shortfall": As to any Distribution Date
and any Mortgage Loan (other than a Mortgage Loan relating to an REO Property)
that was the subject of (a) a Principal Prepayment in Full during the related
Prepayment Period, an amount equal to the excess of one month's interest at the
Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net Mortgage Rate) paid by the Mortgagor for
such Prepayment Period to the date of such Principal Prepayment in Full or (b) a
Curtailment during the prior calendar month, an amount equal to one month's
interest at the Net Mortgage Rate on the amount of such Curtailment.
"Prepayment Period": As to any Distribution Date, the calendar
month preceding the month in which such Distribution Date occurs.
"Primary Hazard Insurance Policy": Each primary hazard
insurance policy (other than a Radian PMI Pool Policy) required to be maintained
pursuant to Section 3.13.
"Primary Insurance Policy": Any primary policy of mortgage
guaranty insurance other than the Radian PMI Pool Policy but including the
Radian Lender-Paid PMI Policies, or any replacement policy therefor providing
coverage for certain Mortgage Loans included in the Trust Fund with
Loan-to-Value Ratios in excess of 80.00%.
"Principal Only Certificates": The Class A-13 Certificates.
"Principal Only Collection Shortfalls": With respect to the
Cash Liquidation or REO Disposition of a Discount Mortgage Loan and any
Distribution Date, the excess of the amount described in Section
4.01(d)(i)(C)(1) over the amount described in Section 4.01(d)(i)(C)(2).
"Principal Only Distribution Amount": As defined in Section
4.01(d)(i).
"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.
"Principal Prepayment in Full": Any Principal Prepayment made
by a Mortgagor of the entire unpaid principal balance of the Mortgage Loan.
"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 or
that the Master Servicer is entitled to repurchase pursuant to Section 3.24, 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
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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 Servicing Fees, Trustee's 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) 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; (vi) have a Pool Strip Rate equal to or greater than that
of the Deleted Mortgage Loan and, (vii) comply with each representation and
warranty set forth in the Mortgage Loan Purchase Agreement. Notwithstanding any
other provisions herein, (x) with respect to any Qualified Substitute Mortgage
Loan substituted for a Deleted Mortgage Loan which was a Discount Mortgage Loan,
such Qualified Substitute Mortgage Loan shall be deemed to be a Discount
Mortgage Loan and to have a Discount Fraction equal to the Discount Fraction of
the Deleted Mortgage Loan and (y) in the event that the "Pool Strip Rate" of any
Qualified Substitute Mortgage Loan as calculated pursuant to the definition of
"Pool Strip Rate" is greater than the Pool Strip Rate of the related Deleted
Mortgage Loan, (i) the Pool Strip Rate of such Qualified Substitute Mortgage
Loan shall be equal to the Pool Strip Rate of the related Deleted Mortgage Loan
for purposes of calculating the Uncertificated REMIC I Pass-Through Rate for the
Uncertificated REMIC I IO Regular Interests and (ii) the excess of the Pool
Strip Rate on such Qualified Substitute Mortgage Loan as calculated pursuant to
the definition of "Pool Strip Rate" over the Pool Strip Rate on the related
Deleted Mortgage Loan shall be payable to the Class R-II Certificates pursuant
to Section 4.01 hereof.
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"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 the Radian PMI Pool Policy or 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 May 1, 2000 letter between the Seller and
Radian.
"Radian PMI Pool Policy": The modified primary insurance pool
policy issued with respect to certain of the Mortgage Loans by Radian.
"Radian PMI Policy Rate": With respect to any Radian Insured
Loan, the rate per annum at which the related premium on the Radian PMI Pool
Policy or the Radian Lender-Paid PMI Policy accrues.
"Rate Adjustment Date": With respect to each Distribution Date
and the Class A-3, Class A-4, Class A-5 and Class A-6 Certificates, the second
LIBOR Business Day immediately preceding the commencement of the related
Interest Accrual Period on which banks are open for dealing in foreign currency
and exchange in London, England.
"Rating Agency": Standard & Poor's, Fitch 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 Fitch,"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 "F-1+" in the case
of Fitch, "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
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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.
"Record Date": The last Business Day of the month immediately
preceding the month of the related Distribution Date.
"Regular Certificate": Any of the Certificates other than a
Residual Certificate.
"Relief Act": The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
"REMIC I": The segregated pool of assets, with respect to
which a REMIC election is to be made, 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) the Radian PMI Pool Policy; 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 I Certificates": The Class R-I Certificates.
"REMIC II": The segregated pool of assets consisting of the
Uncertificated REMIC I Regular Interests conveyed in trust to the Trustee for
the benefit of the holders of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11,
Class A-12, Class A-13, Class A-14, Class M-1, Class M-X, Class M-2, Class M-3,
Class B-1, Class B-2, Class B-3 and Class R-II Certificates pursuant to Section
2.06, with respect to which a separate REMIC election is to be made.
"REMIC II Certificates": Any of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9,
Class A-10, Class A-11, Class A-12, Class A-13, Class A-14, Class M-1, Class
M-X, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3 and Class R-II
Certificates.
"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
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published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"Remittance Report": A report prepared by the Master Servicer
providing the information set forth in Exhibit E attached hereto.
"REO Acquisition": The acquisition by the Master Servicer on
behalf of the Trustee for the benefit of the Certificateholders of any REO
Property pursuant to Section 3.15.
"REO Disposition": The receipt by the Master Servicer of
Insurance Proceeds, Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) which the Master Servicer expects to be
finally recoverable from the sale or other disposition of the REO Property.
"REO Imputed Interest": As to any REO Property, for any
period, an amount equivalent to interest (at the Mortgage Rate that would have
been applicable to the related Mortgage Loan had it been outstanding) on the
unpaid principal balance of the Mortgage Loan as of the date of acquisition
thereof (as such balance is reduced pursuant to Section 3.15 by any income from
the REO Property treated as a recovery of principal).
"REO Proceeds": Proceeds, net of directly related expenses,
received in respect of any REO Property (including, without limitation, proceeds
from the rental of the related Mortgaged Property and of any REO Disposition),
which proceeds are required to be deposited into the Custodial Account as and
when received.
"REO Property": A Mortgaged Property acquired by the Master
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure in connection with a defaulted Mortgage Loan.
"Request for Release": A release signed by a Servicing
Officer, in the form of Exhibits F-1 or F-2 attached hereto.
"Reserve Banks": Leading banks selected by the Trustee and
engaged in transactions in Eurodollar deposits in the international Eurocurrency
market (i) with an established place of business in London, (ii) whose
quotations appear on the Telerate Screen Page 3750 on the Rate Adjustment Date
in question, (iii) which have been designated as such by the Trustee and (iv)
not controlling, controlled by, or under common control with, the Company or the
Seller.
"Reserve Interest Rate": As determined by the Trustee, either
(i) the arithmetic mean (rounded upwards if necessary to the nearest whole
multiple of 0.0625%) 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 time, on such date for loans in U.S. Dollars to the
principal London offices of leading 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-3, Class
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A-4, Class A-5 and Class A-6 Certificates then outstanding or (ii) if no such
quotations can be obtained, the rate shall be the lowest one-month United States
dollar lending rate which New York City banks selected by the Trustee are
quoting on such Rate Adjustment Date to leading European banks.
"Residual Certificate": Any of the Class R-I Certificates or
Class R-II Certificates.
"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, the Cashier, any
assistant cashier, any trust officer or assistant trust officer, the Controller
and any assistant controller 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.
"Senior Accelerated Distribution Percentage": With respect to
any Distribution Date, the percentage indicated below:
Senior Accelerated
Distribution Date Distribution Percentage
---------------------------------------------------------------------
October 2000 through 100%
September 2005
October 2005 through Senior Percentage, plus 70% of
September 2006 the Subordinate Percentage
October 2006 through Senior Percentage, plus 60% of
September 2007 the Subordinate Percentage
October 2007 through Senior Percentage, plus 40% of
September 2008 the Subordinate Percentage
October 2008 through Senior Percentage, plus 20% of
September 2009 the Subordinate Percentage
October 2009 and Senior Percentage,
thereafter
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provided, however, (i) that any scheduled reduction to the Senior Accelerated
Distribution Percentage described above shall not occur as of any Distribution
Date unless either (a)(1)(x) the outstanding principal balance of Mortgage Loans
delinquent 60 days or more (including foreclosure and REO Property) averaged
over the last six months as a percentage of the aggregate outstanding
Certificate Principal Balance of the Class M Certificates and the Class B
Certificates, is less than 50%, or (y) the outstanding principal balance of
Mortgage Loans delinquent 60 days or more (including foreclosure and REO
Property) averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans averaged over the last six
months, does not exceed 2% and (2) Realized Losses on the Mortgage Loans to date
for such Distribution Date if occurring during the sixth, seventh, eighth, ninth
or tenth year (or any year thereafter) after the Closing Date are less than 30%,
35%, 40%, 45% or 50%, respectively, of the sum of the Initial Certificate
Principal Balances of the Class M Certificates and Class B Certificates or (b)
(1) the aggregate outstanding principal balance of the Mortgage Loans delinquent
60 days or more (including foreclosure and REO Property) averaged over the last
six months, as a percentage of the aggregate outstanding principal balance of
all Mortgage Loans averaged over the last six months, does not exceed 4% and (2)
Realized Losses on the Mortgage Loans on or prior to such Distribution Date are
less than 10% of the sum of the Initial Certificate Principal Balances of the
Class M Certificates and Class B Certificates and (ii) that for any Distribution
Date on which the Senior Percentage is greater than the Original Senior
Percentage, the Senior Accelerated Distribution Percentage for such Distribution
Date shall be 100%. Notwithstanding the foregoing, upon the reduction of the
aggregate Certificate Principal Balance of the Class A Certificates (other than
the Certificate Principal Balance of the Principal Only Certificates) and the
Class R Certificates to zero, the Senior Accelerated Distribution Percentage
will equal 0%.
"Senior Interest Distribution Amount": As defined in Section
4.01(c)(i).
"Senior Percentage": As of any Distribution Date, the lesser
of 100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Certificate Principal Balance of the Class A Certificates (other than
the Principal Only Certificates) and Class R Certificates immediately prior to
such Distribution Date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans or related REO Properties (other
than the Discount Fraction of the Discount Mortgage Loans) immediately prior to
such Distribution Date.
"Senior Principal Distribution Amount": As to any Distribution
Date, the lesser of (a) the balance of the Available Distribution Amount
remaining after the distribution of all amounts required to be distributed
pursuant to Section 4.01(c)(i) and (b) the sum of the amounts required to be
distributed to the Class A Certificates and Class R Certificates on such
Distribution Date pursuant to Section 4.01(c)(ii)(Y), (xv) and (xvi).
"Senior Support Certificates": The Class A-11 Certificates.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.09.
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"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, (iii) the management and liquidation of any REO Property,
including reasonable fees paid to any independent contractor in connection
therewith, and (iv) compliance with the obligations under the second paragraph
of Section 3.01, Section 3.09 and Section 3.13 (other than any deductible
described in the last paragraph thereof).
"Servicing Fees": As to each Mortgage Loan, an amount, payable
out of any payment of interest on the Mortgage Loan, equal to interest at the
Servicing Fee Rate on the Stated Principal Balance of such Mortgage Loan for the
calendar month preceding the month in which the payment is due (alternatively,
in the event such payment of interest accompanies a Principal Prepayment in full
made by the Mortgagor, interest for the number of days covered by such payment
of interest).
"Servicing Fee Rate": With respect to each Mortgage Loan, the
per annum rate of 0.28%.
"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 Certificate of any Class evidencing an
Initial Certificate Principal Balance of $1,000.
"Special Deposit": As defined in Section 2.01(a).
"Special Hazard Amount": As of any Distribution Date, an
amount equal to $3,499,284 (the initial "Special Hazard Amount") minus the sum
of (i) the aggregate amount of Special Hazard Losses allocated solely to one or
more Classes of Certificates in accordance with Section 4.04 and (ii) the
Adjustment Amount (as defined below) as most recently calculated. For each
Anniversary, the "Adjustment Amount" shall be calculated and shall be equal to
the amount, if any, by which the amount calculated in accordance with the
preceding sentence (without giving effect to the deduction of the Adjustment
Amount for such Anniversary) exceeds the greater of (A) the greatest of (i)
twice the outstanding principal balance of the Mortgage Loan in the Trust Fund
which has the largest outstanding principal balance on the Distribution Date
immediately preceding such anniversary, (ii) the product of 1.00% multiplied by
the outstanding principal balance of all Mortgage Loans on the Distribution Date
immediately preceding such anniversary and (iii) the aggregate outstanding
principal balance (as of the immediately preceding Distribution Date) of the
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Mortgage Loans in any single five-digit California zip code area with the
largest amount of Mortgage Loans by aggregate principal balance as of such
anniversary and (B) the greater of (i) the product of 0.50% multiplied by the
outstanding principal balance of all Mortgage Loans on the Distribution Date
immediately preceding such anniversary multiplied by a fraction, the numerator
of which is equal to the aggregate outstanding principal balance (as of the
immediately preceding Distribution Date) of all of the Mortgage Loans secured by
Mortgaged Properties located in the State of California divided by the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of all of the Mortgage Loans, expressed as a percentage, and the
denominator of which is equal to 28.64% (which percentage is equal to the
percentage of Mortgage Loans initially secured by Mortgaged Properties located
in the State of California) and (ii) the aggregate outstanding principal balance
(as of the immediately preceding Distribution Date) of the largest Mortgage Loan
secured by a Mortgaged Property located in the State of California.
The Special Hazard Amount may be further reduced by the Master
Servicer (including accelerating the manner in which coverage is reduced)
provided that prior to any such reduction, the Master Servicer shall (i) obtain
written confirmation from each Rating Agency that such reduction shall 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 and (ii) provide a
copy of such written confirmation to the Trustee.
"Special Hazard Loss": Any Realized Loss not in excess of the
cost of the lesser of repair or replacement of a Mortgaged Property suffered by
such Mortgaged Property on account of direct physical loss, exclusive of (i) any
loss of a type covered by a hazard policy or a flood insurance policy required
to be maintained in respect of such Mortgaged Property pursuant to Section
3.13(a), except to the extent of the portion of such loss not covered as a
result of any coinsurance provision and (ii) any Extraordinary Loss.
"Special Hazard Percentage": As of each Anniversary, the
greater of (i) 1.00% and (ii) the largest percentage obtained by dividing the
aggregate outstanding principal balance (as of the immediately preceding
Distribution Date) of the Mortgage Loans secured by Mortgaged Properties located
in a single, five-digit zip code area in the State of California by the
outstanding principal balance of all the Mortgage Loans as of such immediately
preceding Distribution Date.
"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
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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 4.04 for any previous
Distribution Date.
"Subordinate Certificate": Any of the Class M, Class B-1,
Class B-2 or Class B-3 Certificates.
"Subordinate Percentage": As of any date of determination, a
percentage equal to 100% minus Senior Percentage as of such date.
"Subordinate Principal Distribution Amount": With respect to
any Distribution Date and each Class of Class M Certificates and Class B
Certificates, the sum of (i) the product of (x) the related Class M Percentage
or Class B Percentage for such Class and (y) the aggregate of the amounts
calculated for such Distribution Date under clauses (1), (2) and (3) of Section
4.01(c)(ii)(Y)(A) without giving effect to the Senior Percentage; (ii) such
Class's pro rata share, based on the Certificate Principal Balance of each Class
of Class M Certificates and Class B Certificates then outstanding, of the
principal collections described in Section 4.01(c)(ii)(Y)(B)(b) (without giving
effect to the Senior Accelerated Distribution Percentage), to the extent such
collections are not otherwise distributed to the Senior Certificates; (iii) the
product of (x) the related Prepayment Distribution Percentage for such
Distribution Date and (y) the aggregate of all Principal Prepayments in Full and
Curtailments received in the related Prepayment Period to the extent not payable
to the Senior Certificates; and (iv) any amounts described in clauses (i), (ii)
and (iii) as determined for any previous Distribution Date, that remain
undistributed to the extent that such amounts are not attributable to Realized
Losses which have been allocated to a subordinate Class of Class M Certificates
or Class B Certificates; provided, however, that such amount shall in no event
exceed the outstanding Certificate Principal Balance of such Class of
Certificates immediately prior to such date.
"Sub-Servicer": Any Person with which the Master Servicer has
entered into a Sub- Servicing Agreement and which meets the qualifications of a
Sub-Servicer pursuant to Section 3.02.
"Sub-Servicer Remittance Date": The 18th day of each month, or
if such day is not a Business Day, the immediately preceding Business Day.
"Sub-Servicing Account": An account established by a
Sub-Servicer which meets the requirements set forth in Section 3.08 and is
otherwise acceptable to the Master Servicer.
"Sub-Servicing Agreement": The written contract between the
Master Servicer and a Sub-Servicer and any successor Sub-Servicer relating to
servicing and administration of certain Mortgage Loans as provided in Section
3.02.
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"Super Senior Certificates": The Class A-3 Certificates and
Class A-4 Certificates.
"Super Senior Optimal Principal Distribution Amount": As of
any Distribution Date on or after the Credit Support Depletion Date the product
of (a) the then-applicable Super Senior Optimal Percentage and (b) the Senior
Principal Distribution Amount.
"Super Senior Optimal Percentage": As of any Distribution
Date, a fraction, expressed as a percentage, the numerator of which is the
aggregate Certificate Principal Balance of the Super Senior Certificates
immediately prior to such Distribution Date and the denominator of which is the
aggregate Certificate Principal Balance of all Senior Certificates (other than
the Principal Only Certificates) immediately prior to such Distribution Date.
"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 I and REMIC II 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.
"Trust Fund": REMIC I and REMIC II.
"Trustee": Bankers Trust Company of California, N.A., or its
successor in interest, or any successor trustee appointed as herein provided.
"Trustee's Fee": As to each Mortgage Loan and Distribution
Date, an amount equal to interest at the Trustee Fee Rate on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in the month
immediately preceding the month in which such Distribution Date occurs.
"Trustee Fee Rate": With respect to each Mortgage Loan, the
per annum rate of 0.0050%.
"Uncertificated Principal Balance": With respect to each
Uncertificated REMIC I Regular Interest on any date of determination, the amount
set forth in the Preliminary Statement hereto minus the sum of (x) the aggregate
of all amounts previously deemed distributed with respect to such interest and
applied to reduce the Uncertificated Principal Balance thereof pursuant to
Section 4.07(a)(ii) and (y) the aggregate of all reductions in Certificate
Principal Balance deemed
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to have occurred in connection with Realized Losses that were previously deemed
allocated to the Uncertificated Principal Balance of such Uncertificated REMIC I
Regular Interest pursuant to Section 4.07(d).
"Uncertificated REMIC I Accrued Interest": With respect to
each Distribution Date, (i) as to Uncertificated REMIC I Regular Interest N, an
amount equal to the aggregate amount of Accrued Certificate Interest that would
result under the terms of the definition thereof on the Class A-1 Certificates
if the Pass-Through Rate on such Class were equal to the Uncertificated REMIC I
Pass-Through Rate on Uncertificated REMIC I Regular Interest N, (ii) as to
Uncertificated REMIC I Regular Interest O, an amount equal to the aggregate
amount of Accrued Certificate Interest that would result under the terms of the
definition thereof on the Class A-3 Certificates if the Pass- Through Rate on
such Class were equal to the Uncertificated REMIC I Pass-Through Rate on
Uncertificated REMIC I Regular Interest O, (iii) as to Uncertificated REMIC I
Regular Interest P, an amount equal to the aggregate amount of Accrued
Certificate Interest that would result under the terms of the definition thereof
on the Class A-5 Certificates if the Pass-Through Rate on such Class were equal
to the Uncertificated REMIC I Pass-Through Rate on Uncertificated REMIC I
Regular Interest P, (iv) as to Uncertificated REMIC I Regular Interest Q, an
amount equal to the aggregate amount of Accrued Certificate Interest that would
result under the terms of the definition thereof on the Class A-7 Certificates
if the Pass-Through Rate on such Class were equal to the Uncertificated REMIC I
Pass-Through Rate on Uncertificated REMIC I Regular Interest Q, (v) as to
Uncertificated REMIC I Regular Interest S, an amount equal to the aggregate
amount of Accrued Certificate Interest that would result under the terms of the
definition thereof on the Class A-8 Certificates if the Pass- Through Rate on
such Class were equal to the Uncertificated REMIC I Pass-Through Rate on
Uncertificated REMIC I Regular Interest S, (vi) as to Uncertificated REMIC I
Regular Interest T, an amount equal to the aggregate amount of Accrued
Certificate Interest that would result under the terms of the definition thereof
on the Class A-10 Certificates if the Pass-Through Rate on such Class were equal
to the Uncertificated REMIC I Pass-Through Rate on Uncertificated REMIC I
Regular Interest T, (vii) as to Uncertificated REMIC I Regular Interest U, an
amount equal to the aggregate amount of Accrued Certificate Interest that would
result under the terms of the definition thereof on the Class A-11 Certificates
if the Pass-Through Rate on such Class were equal to the Uncertificated REMIC I
Pass-Through Rate on Uncertificated REMIC I Regular Interest U; (viii) as to
Uncertificated REMIC I Regular Interest V, an amount equal to the aggregate
amount of Accrued Certificate Interest that would result under the terms of the
definition thereof on the Class M-1 Certificates if the Pass-Through Rate on
such Class were equal to the Uncertificated REMIC I Pass- Through Rate on
Uncertificated REMIC I Regular Interest V, (ix) as to Uncertificated REMIC I
Regular Interest W, an amount equal to the aggregate amount of Accrued
Certificate Interest that would result under the terms of the definition thereof
on the Class M-2 Certificates if the Pass- Through Rate on such Class were equal
to the Uncertificated REMIC I Pass-Through Rate on Uncertificated REMIC I
Regular Interest W, (x) as to Uncertificated REMIC I Regular Interest X, an
amount equal to the aggregate amount of Accrued Certificate Interest that would
result under the terms of the definition thereof on the Class M-3, Class B-1,
Class B-2, Class B-3 and Class R-II Certificates if the Pass-Through Rate on
such Class were equal to the Uncertificated REMIC I Pass- Through Rate on
Uncertificated REMIC I Regular Interest X; (xi) as to Uncertificated REMIC I
Regular Interest Y, an amount equal to the aggregate amount of Accrued
Certificate Interest that
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would result under the terms of the definition thereof on the Class A-13
Certificates if the Pass- Through Rate on such Classes were equal to the
Uncertificated REMIC I Pass-Through Rate on Uncertificated REMIC I Regular
Interest Y, and (xii) as to each Uncertificated REMIC I IO Regular Interest, an
amount equal to the aggregate amount of Accrued Certificate Interest that would
result under the terms of the definition thereof on each such uncertificated
interest, if the Pass-Through Rate on such uncertificated interest was equal to
the related Uncertificated REMIC I Pass-Through Rate and the notional amount of
such uncertificated interest was equal to the related Uncertificated REMIC I IO
Notional Amount; provided, that any reduction in the amount of Accrued
Certificate Interest resulting from the allocation of Prepayment Interest
Shortfalls, Realized Losses or other amounts to the Class A-8 Certificateholders
pursuant to Sections 4.02(a) and 4.05 hereof shall be allocated to the
Uncertificated REMIC I IO Regular Interests pro rata in accordance with the
amount of interest accrued with respect to each related Uncertificated REMIC I
IO Notional Amount and such Distribution Date.
"Uncertificated REMIC I IO Notional Amount": With respect to
each Uncertificated REMIC I IO Regular Interest, the Stated Principal Balance of
the related Non-Discount Mortgage Loan.
"Uncertificated REMIC I IO Regular Interests": The
uncertificated partial undivided beneficial ownership interests in REMIC I, each
relating to a particular Non-Discount Mortgage Loan, having no principal
balance, and bearing interest at the Uncertificated REMIC I Pass-Through Rate on
the Uncertificated REMIC I IO Notional Amount.
"Uncertificated REMIC I Pass-Through Rate": With respect to
each of Uncertificated REMIC I Regular Interests as follows:
(i) Uncertificated REMIC I Regular Interest N, 9.00%;
(ii) Uncertificated REMIC I Regular Interest O, 9.00%;
(iii) Uncertificated REMIC I Regular Interest P, 9.00%;
(iv) Uncertificated REMIC I Regular Interest Q, 9.00%;
(v) Uncertificated REMIC I Regular Interest S, 9.00%;
(vi) Uncertificated REMIC I Regular Interest T, 9.00%;
(vii) Uncertificated REMIC I Regular Interest U, 9.00%;
(viii) Uncertificated REMIC I Regular Interest V, 9.00%;
(ix) Uncertificated REMIC I Regular Interest W, 9.00%;
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(x) Uncertificated REMIC I Regular Interest X, 9.00%;
(xi) Uncertificated REMIC I Regular Interest Y, 0.00%; and
(xii) Uncertificated REMIC I IO Regular Interest, the Pool Strip
Rate.
"Uncertificated REMIC I Regular Interest N": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class A-1
Certificates and the denominator of which is the aggregate Certificate Principal
Balance of all of the Certificates, and which bears interest at a rate equal to
9.00% per annum.
"Uncertificated REMIC I Regular Interest O": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class A-3
Certificates and the denominator of which is the aggregate Certificate Principal
Balance of all of the Certificates, and which bears interest at a rate equal to
9.00% per annum.
"Uncertificated REMIC I Regular Interest P": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class A-5
Certificates and the denominator of which is the aggregate Certificate Principal
Balance of all of the Certificates, and which bears interest at a rate equal to
9.00% per annum.
"Uncertificated REMIC I Regular Interest Q": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class A-7
Certificates and the denominator of which is the aggregate Certificate Principal
Balance of all of the Certificates, and which bears interest at a rate equal to
9.00% per annum.
"Uncertificated REMIC I Regular Interest S": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class A-8
Certificates and the denominator of which is the aggregate Certificate Principal
Balance of all of the Certificates, and which bears interest at a rate equal to
9.00% per annum.
"Uncertificated REMIC I Regular Interest T": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a
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fraction, the numerator of which is the aggregate Certificate Principal Balance
of the Class A-10 Certificates and the denominator of which is the aggregate
Certificate Principal Balance of all of the Certificates, and which bears
interest at a rate equal to 9.00% per annum.
"Uncertificated REMIC I Regular Interest U": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class A-11
Certificates and the denominator of which is the aggregate Certificate Principal
Balance of all of the Certificates, and which bears interest at a rate equal to
9.00% per annum.
"Uncertificated REMIC I Regular Interest V": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the Certificate Principal Balance of the Class M-1 Certificates and the
denominator of which is the aggregate Certificate Principal Balance of all of
the Certificates, and which bears interest at a rate equal to 9.00% per annum.
"Uncertificated REMIC I Regular Interest W": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the Certificate Principal Balance of the Class M-2 Certificates and the
denominator of which is the aggregate Certificate Principal Balance of all of
the Certificates, and which bears interest at a rate equal to 9.00% per annum.
"Uncertificated REMIC I Regular Interest X": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balances of the Class M-3, Class
B-1, Class B-2, Class B-3 and Class R-II Certificates and the denominator of
which is the aggregate Certificate Principal Balance of all of the Certificates,
and which bears interest at a rate equal to 9.00% per annum.
"Uncertificated REMIC I Regular Interest Y": An uncertificated
partial undivided beneficial ownership interest in REMIC I having a principal
balance equal to the aggregate Stated Principal Balance of the Mortgage Loans
and REO Properties from time to time multiplied by a fraction, the numerator of
which is the aggregate Certificate Principal Balance of the Class A-13
Certificates and the denominator of which is the aggregate Certificate Principal
Balance of all of the Certificates, and which bears interest at a rate equal to
0.00% per annum.
"Uncertificated REMIC I Regular Interests": Uncertificated
REMIC I Regular Interest N, Uncertificated REMIC I Regular Interest O,
Uncertificated REMIC I Regular Interest P, Uncertificated REMIC I Regular
Interest Q, Uncertificated REMIC I Regular Interest S, Uncertificated REMIC I
Regular Interest T, Uncertificated REMIC I Regular Interest U,
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Uncertificated REMIC I Regular Interest V, Uncertificated REMIC I Regular
Interest W, Uncertificated REMIC I Regular Interest X, Uncertificated REMIC I
Regular Interest Y and the Uncertificated REMIC I IO Regular Interests.
"Uncertificated REMIC I IO Regular Interest Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I IO Regular Interest for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest N Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest N for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest O Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest O for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest P Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest P for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest Q Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest Q for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest S Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest S for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest T Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest T for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest U Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest U for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest V Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest V for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest W Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest W for such
Distribution Date pursuant to Section 4.07(a).
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"Uncertificated REMIC I Regular Interest X Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest X for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest Y Distribution
Amount": With respect to any Distribution Date, the sum of the amounts deemed to
be distributed on the Uncertificated REMIC I Regular Interest Y for such
Distribution Date pursuant to Section 4.07(a).
"Uncertificated REMIC I Regular Interest Distribution
Amounts": The Uncertificated REMIC I Regular Interest N Distribution Amount,
Uncertificated REMIC I Regular Interest O Distribution Amount, Uncertificated
REMIC I Regular Interest P Distribution Amount, Uncertificated REMIC I Regular
Interest Q Distribution Amount, Uncertificated REMIC I Regular Interest S
Distribution Amount, Uncertificated REMIC I Regular Interest T Distribution
Amount, Uncertificated REMIC I Regular Interest U Distribution Amount,
Uncertificated REMIC I Regular Interest V Distribution Amount, Uncertificated
REMIC I Regular Interest W Distribution Amount, Uncertificated REMIC I Regular
Interest X Distribution Amount, Uncertificated REMIC I Regular Interest Y
Distribution Amount and Uncertificated REMIC I IO Regular Interest Distribution
Amount.
"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.
"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, 92% of all of the Voting Rights shall be allocated among
Holders of the Certificates (other than the Interest Only and Residual
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Certificates), 1% of all Voting Rights shall be allocated to the Holders of the
Class A-2 Certificates, 1% of all Voting Rights shall be allocated to the
Holders of the Class A-4 Certificates, 1% of all Voting Rights shall be
allocated to the Holders of the Class A-6 Certificates, 1% of all Voting Rights
shall be allocated to the Holders of the Class A-9 Certificates, 1% of all
Voting Rights shall be allocated to the Holders of the Class A-12 Certificates,
1% of all Voting Rights shall be allocated to the Holders of the Class A-14
Certificates, the Holders of the Class R-I Certificates and Class R-II
Certificates shall be entitled to 0.5% and 0.5% of all of the Voting Rights,
respectively, and 1% of all Voting Rights shall be allocated to the Holders of
the Class M-X Certificates allocated among the Certificates of each such Class
in accordance with their respective Percentage Interests.
"Wendover": Wendover Funding, Inc.
SECTION 1.02 Determination of LIBOR.
LIBOR applicable to the calculation of the Pass-Through Rates on the
Class A-3, Class A-4, Class A-5 and Class A-6 Certificates for any Interest
Accrual Period (other than the initial Interest Accrual Period) will be
determined on each Rate Adjustment Date as follows:
For the first Interest Accrual Period, LIBOR will equal 6.62%. For any
Interest Accrual Period other than the first Interest Accrual Period, the rate
for United States dollar deposits on the basis of the offered rates of the
Reserve Banks for one-month United States dollar deposits, as such rate appears
on the Dow Jones Telerate Screen Page 3750 as of 11:00 A.M., London, England
time, on the second LIBOR Business Day prior to the first day of such Interest
Accrual Period. 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,
such other service for displaying LIBOR or comparable rates as may be reasonably
selected by the Trustee after consultation with the Master Servicer), the rate
will be the Reserve Interest Rate. If no such quotations can be obtained and no
Reserve Interest Rate is available, LIBOR will be LIBOR applicable to the
preceding 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 (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 Rate Adjustment Date
and the Trustee's subsequent calculation of the Pass-Through Rates applicable to
the Class A-3, Class A-4, Class A-5 and Class A-6 Certificates for the relevant
Interest Accrual Period, in the absence of manifest error, will be final and
binding.
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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. 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 Master Servicer hereby acknowledges the receipt by it of
cash in an amount equal to $169,508.10 (the "Special Deposit"), representing
interest at the Mortgage Rate, for the calendar month of September 2000, for
those Mortgage Loans which do not have Monthly Payments due on October 1, 2000.
The Master Servicer shall hold such amount in the Custodial Account and shall
include such amount in the Available Distribution Amount for the Distribution
Date in October 2000.
In connection with such transfer and assignment, the Company
has caused the Seller to deliver to, and deposit with the Trustee, as described
in the Mortgage Loan Purchase Agreement the following documents or instruments:
(i) the original Mortgage Note endorsed without recourse,
"Bankers Trust Company of California, N.A., as trustee under the
Pooling and Servicing Agreement relating to Impac Secured Assets Corp.,
Mortgage Pass-Through Certificates, Series 2000-3" 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 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) a duly executed original Assignment of the Mortgage, without
recourse, in recordable form to "Bankers Trust Company of California,
N.A., as trustee," or to "Bankers Trust Company of California, N.A., as
trustee for holders of Impac Secured Assets Corp., Mortgage
Pass-Through Certificates, Series 2000-3";
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(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, if any such
Assignment has not been returned from the applicable public 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;
(vii) a true and correct copy of any assumption, modification,
consolidation or substitution agreement; and
(viii) the original or a copy of the private mortgage insurance
policy or original certificate of private mortgage insurance for each
Mortgage Loan so identified on the Mortgage Loan Schedule (other than a
Radian Lender-Paid PMI Policy).
The Seller is obligated as described in the Mortgage Loan
Purchase Agreement to deliver to the Trustee: (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 Trustee 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 Trustee pursuant to clause (iv) above.
However, pursuant to the Mortgage Loan Purchase Agreement, 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,
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the Seller shall be deemed to have satisfied its obligations hereunder upon
delivery to the Trustee 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
Trustee because of any defect therein, the Seller is required, as described in
the Mortgage Loan Purchase Agreement, to prepare a substitute Assignment or cure
such defect, as the 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 to exercise its best reasonable efforts to deliver or cause
to be delivered to the Trustee within 120 days of the Closing Date the original
or a photocopy of the title insurance policy with respect to each Mortgage Loan
assigned to the Trustee pursuant to this Section 2.01.
All original documents relating to the Mortgage Loans which
are not delivered to the Trustee 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 and the Uncertificated REMIC I Regular Interests 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 and the Uncertificated REMIC I Regular
Interests by the Company to the Trustee to secure a debt or other obligation of
the Company. However, in the event that the Mortgage Loans and the
Uncertificated REMIC I Regular Interests 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 and the Uncertificated REMIC I Regular Interests,
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 with the terms
thereof, (C) the Uncertificated REMIC I Regular Interests and (D) 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,
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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 (D); (c) the possession by the Trustee or any other 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 Uncertificated REMIC I 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 Trustee acknowledges receipt (subject to any exceptions
noted in the Initial Certification described below), 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 Trustee 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 Trustee agrees to execute and deliver, or cause
to be executed and delivered, to the Company and the Master Servicer on the
Closing Date, 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) and
(iv) of the definition of the "Mortgage Loan Schedule" accurately reflects
information set forth in the Mortgage File. Neither the Trustee nor 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.
Neither the Trustee nor the Master Servicer shall be under any duty or
obligation to inspect, review
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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 the Trustee 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.
If in the process of reviewing the Mortgage Files and
preparing the certifications referred to above the Trustee finds any document or
documents constituting a part of a Mortgage File to be missing or defective in
any material respect, the Trustee shall promptly notify the Seller, the Master
Servicer 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 Trustee 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 shall have no further
responsibility with respect to the related Mortgage File.
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;
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(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, the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement or is likely to affect materially and
adversely either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the
Master Servicer;
(vii) The Master Servicer will comply in all material
respects in the performance of this Agreement with all reasonable rules
and requirements of each insurer under each Insurance Policy;
(viii) The execution of this Agreement and the performance
of the Master Servicer's obligations hereunder do not require any
license, consent or approval of any state or federal court, agency,
regulatory authority or other governmental body having jurisdiction
over the Master Servicer, other than such as have been obtained; and
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(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.
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.
(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.
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 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
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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 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 (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
I or REMIC II, including without limitation, any federal tax imposed on
"prohibited transactions" under Section 860F(a)(1) of the Code or on
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"contributions after the startup date" under Section 860G(d)(1) of the Code or
(b) any portion of REMIC I or REMIC II 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 neither the Trustee nor
the Master Servicer is under any obligation to discover any breach of the above
mentioned representations and warranties. It is understood and agreed that the
obligation of the 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 Evidencing
Interests in the REMIC I
Certificates.
The Trustee acknowledges the assignment to it of the Mortgage
Loans and the delivery of the Mortgage Files to it, subject to any exceptions
noted pursuant to Section 2.02 above, together with the assignment to it of all
other assets included in REMIC I, receipt of which is hereby acknowledged.
Concurrently with such delivery and in exchange therefor, the Trustee, pursuant
to the written request of the Company, executed by an officer of the Company,
has executed and caused to be authenticated and delivered to, or upon the order
of, the Company the Class R-I Certificates in authorized denominations which
together with the Uncertificated REMIC I Regular Interests, evidence ownership
of REMIC I. The rights of the Class R-I Certificateholders and REMIC II to
receive distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the Uncertificated REMIC I Regular Interests, and all ownership
interests of the Class R-I Certificateholders and REMIC II in such
distributions, shall be as set forth in this Agreement.
SECTION 2.06. Conveyance of Uncertificated REMIC I
Regular Interests; Acceptance by the
Trustee.
The Company, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Company in and to the Uncertificated REMIC I
Regular Interests to the Trustee for the benefit of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9,
Class A-10, Class A-11, Class A-12, Class A-13, Class A-14, Class M-1, Class
M-X, Class M-2, Class M- 3, Class B-1, Class B-2, Class B-3 and Class R-II
Certificateholders. The Trustee acknowledges receipt of the Uncertificated REMIC
I Regular Interests and declares that it holds and will hold the same in trust
for the exclusive use and benefit of all present and future Class A
Certificates, Class M Certificates, Class B Certificates and Class R-II
Certificateholders. The rights of the Class A Certificates, Class M
Certificates, Class B Certificates and Class R-II Certificateholders to receive
distributions from the proceeds of REMIC II in respect of the Class A
Certificates, Class M Certificates, Class B Certificates and Class R-II
Certificates, and all ownership interests of the Class A Certificates, Class M
Certificates, Class B Certificates and Class R-II Certificateholders in such
distributions, shall be as set forth in this Agreement.
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SECTION 2.07. Issuance of Certificates Evidencing
Interest in REMIC II.
The Trustee acknowledges the assignment to it of the
Uncertificated REMIC I Regular Interests and, concurrently therewith and in
exchange therefor, pursuant to the written request of the Company executed by an
officer of the Company, the Trustee has executed and caused to be authenticated
and delivered to or upon the order of the Company, the Class A Certificates,
Class M Certificates, Class B Certificates and Class R-II Certificates in
authorized denominations evidencing ownership of the entire REMIC II.
SECTION 2.08. Negative Covenants of the Trust
Fund.
Except as otherwise expressly permitted by this Agreement, the
Trust Fund shall not:
(a) sell, transfer, exchange or otherwise dispose of any of
the assets of the Trust Fund;
(b) dissolve or liquidate in whole or in part;
(c) engage, directly or indirectly, in any business other than
that arising out of the issue of the Certificates, and the actions
contemplated or required to be performed under this Agreement;
(d) incur, create or assume any indebtedness for borrowed
money;
(e) voluntarily file a petition for bankruptcy,
reorganization, assignment for the benefit of creditors or similar
proceeding; or
(f) merge, convert or consolidate with any other Person.
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
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own account and shall have full authority to do anything it reasonably deems
appropriate or desirable in connection with such servicing and administration.
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. Without limiting the generality of the
foregoing, the Master Servicer and any Sub-Servicer acting on its behalf may,
and is hereby authorized, and empowered by the Trustee to, execute and deliver,
on behalf of itself, the Certificateholders or the Trustee or any of them, any
instruments of satisfaction, cancellation, partial or full release, discharge
and all other comparable instruments, with respect to the related Mortgage
Loans, the Insurance Policies and the accounts related thereto, and the
Mortgaged Properties. The Master Servicer may exercise this power in its own
name or in the name of a Sub-Servicer.
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.
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
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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 either REMIC I or
REMIC II 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.
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. With the consent of
the Trustee, the Master Servicer and the Sub-Servicers may enter into
Sub-Servicing Agreements and make amendments to the Sub- Servicing Agreements or
enter into different forms of Sub-Servicing Agreements providing for, among
other things, the delegation by the Master Servicer to a Sub-Servicer of
additional duties regarding the administration of the Mortgage Loans; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Certificateholders, without the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights. The parties hereto acknowledge that the initial Sub-Servicer shall be
Wendover.
The Master Servicer has entered into a Sub-Servicing Agreement with
Wendover for the servicing and administration of the Mortgage Loans and may
enter into additional Sub-Servicing Agreements with Sub-Servicers acceptable to
the Trustee for the servicing and administration of certain of the Mortgage
Loans.
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(b) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustee and the Certificateholders, shall
enforce the obligations of each Sub-Servicer under the related Sub-Servicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements and the pursuit
of other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense, but
shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement only to the extent, if any, that such recovery exceeds all
amounts due in respect of the related Mortgage Loan or (ii) from a specific
recovery of costs, expenses or attorneys' fees against the party against whom
such enforcement is directed.
(c) The Master Servicer represents that it has entered into a
contract regarding the sale of sub-servicing rights with respect to at least 90%
of the Mortgage Loans with Countrywide Home Loans, Inc. ("Countrywide") and
shall transfer the subservicing of such Mortgage Loans from Wendover to
Countrywide on or about February 1, 2001. The Trustee hereby consents to such
transfer.
SECTION 3.03. Successor Sub-Servicers.
The Master Servicer shall be entitled to terminate any
Sub-Servicing Agreement and the rights and obligations of any Sub-Servicer
pursuant to any Sub-Servicing Agreement in accordance with the terms and
conditions of such Sub-Servicing Agreement. In the event of termination of any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall be assumed
simultaneously by the Master Servicer without any act or deed on the part of
such Sub-Servicer or the Master Servicer, and the Master Servicer either shall
service directly the related Mortgage Loans or shall enter into a Sub-Servicing
Agreement with a successor Sub-Servicer which qualifies under Section 3.02.
SECTION 3.04. Liability of the Master Servicer.
Notwithstanding any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Master Servicer and a Sub-Servicer or reference to actions taken through a
Sub-Servicer or otherwise, the Master Servicer shall under all circumstances
remain obligated and primarily liable to the Trustee and Certificateholders for
the servicing and administering of the Mortgage Loans and any REO Property in
accordance with the provisions of Article III without diminution of such
obligation or liability by virtue of such Sub- Servicing Agreements or
arrangements or by virtue of indemnification from the Sub-Servicer and to the
same extent and under the same terms and conditions as if the Master Servicer
alone were servicing and administering the Mortgage Loans. For purposes of this
Agreement, the Master Servicer shall be deemed to have received payments on
Mortgage Loans when the Sub-Servicer has received such payments. The Master
Servicer shall be entitled to enter into any agreement with a Sub-Servicer for
indemnification of the Master Servicer by such Sub-Servicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
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SECTION 3.05. No Contractual Relationship Between
Sub-Servicers and Trustee or
Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such and not as an originator shall be deemed to be between
the Sub-Servicer and the Master Servicer alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Sub-Servicer
except as set forth in Section 3.06.
The Master Servicer (or Sub-Servicer) shall be liable for the payment of any
franchise taxes which may be assessed by the California Franchise Tax Board in
connection with the activities of the Trust under this Agreement.
SECTION 3.06. Assumption or Termination of
Sub-Servicing Agreements by Trustee.
(a) If the Trustee or its designee shall assume the master
servicing obligations of the Master Servicer in accordance with Section 7.02
below, the Trustee, to the extent necessary to permit the Trustee to carry out
the provisions of Section 7.02 with respect to the Mortgage Loans, shall succeed
to all of the rights and obligations of the Master Servicer under each of the
Sub- Servicing Agreements. In such event, the Trustee or its designee as the
successor master servicer shall be deemed to have assumed all of the Master
Servicer's rights and obligations therein and to have replaced the Master
Servicer as a party to such Sub-Servicing Agreements to the same extent as if
such Sub-Servicing Agreements had been assigned to the Trustee or its designee
as a successor master servicer, except that the Trustee or its designee as a
successor master servicer shall not be deemed to have assumed any obligations or
liabilities of the Master Servicer arising prior to such assumption (other than
the obligation to make any Advances hereunder) and the Master Servicer shall not
thereby be relieved of any liability or obligations under such Sub-Servicing
Agreements arising prior to such assumption. Nothing in the foregoing shall be
deemed to entitle the Trustee or its designee as a successor master servicer at
any time to receive any portion of the servicing compensation provided under
Section 3.17 except for such portion as the Master Servicer would be entitled to
receive.
(b) In the event that the Trustee or its designee as successor
master servicer for the Trustee assumes the servicing obligations of the Master
Servicer under Section 7.02, upon the reasonable request of the Trustee or such
designee as successor master servicer the Master Servicer shall at its own
expense deliver to the Trustee, or at its written request to such designee,
photocopies of all documents, files and records, electronic or otherwise,
relating to the Sub-Servicing Agreements and the related Mortgage Loans or REO
Property then being serviced and an accounting of amounts collected and held by
it, if any, and will otherwise cooperate and use its reasonable efforts to
effect the orderly and efficient transfer of the Sub-Servicing Agreements, or
responsibilities hereunder to the Trustee, or at its written request to such
designee as successor master servicer.
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SECTION 3.07. Collection of Certain Mortgage Loan
Payments.
(a) The Master Servicer will coordinate and monitor
remittances by Sub-Servicers to the Master Servicer with respect to the Mortgage
Loans in accordance with this Agreement.
(b) The Master Servicer shall make its reasonable efforts to
collect or cause to be collected all payments required under the terms and
provisions of the Mortgage Loans and shall follow, and use its reasonable
efforts to cause Sub-Servicers to follow, collection procedures comparable to
the collection procedures of prudent mortgage lenders servicing mortgage loans
for their own account to the extent such procedures shall be consistent with
this Agreement. Consistent with the foregoing, the Master Servicer may in its
discretion (i) waive or permit to be waived any late payment charge, prepayment
charge, assumption fee, or any penalty interest in connection with the
prepayment of a Mortgage Loan and (ii) suspend or reduce or permit to be
suspended or reduced regular monthly payments for a period of up to six months,
or arrange or permit an arrangement with a Mortgagor for a scheduled liquidation
of delinquencies. In the event the Master Servicer shall consent to the
deferment of the due dates for payments due on a Mortgage Note, the Master
Servicer shall nonetheless make an Advance or shall cause the related
Sub-Servicer to make an advance to the same extent as if such installment were
due, owing and delinquent and had not been deferred through liquidation of the
Mortgaged Property; provided, however, that the obligation of the Master
Servicer or related Sub-Servicer to make an Advance shall apply only to the
extent that the Master Servicer believes, in good faith, that such advances are
not Nonrecoverable Advances.
(c) Within five Business Days after the Master Servicer has
determined that all amounts which it expects to recover from or on account of a
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 as of the date
of such determination.
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.
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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 the first
Business Day after receipt all proceeds of Mortgage Loans received by the
Sub-Servicer, less its servicing compensation and any unreimbursed expenses and
advances, to the extent permitted by the Sub- Servicing Agreement. On each
Sub-Servicer Remittance Date the Sub-Servicer will be required to remit to the
Master Servicer for deposit in the Custodial Account all funds held in the
Sub-Servicing Account with respect to any Mortgage Loan as of the Sub-Servicer
Remittance Date, after deducting from such remittance an amount equal to the
servicing compensation (including interest on Permitted Investments) and
unreimbursed expenses and advances to which it is then entitled pursuant to the
related Sub-Servicing Agreement, to the extent not previously paid to or
retained by it. In addition, on each Sub-Servicer Remittance Date the
Sub-Servicer will be required to remit to the Master Servicer any amounts
required to be advanced pursuant to the related Sub-Servicing Agreement. The
Sub-Servicer will also be required to remit to the Master Servicer, within one
Business Day of receipt, the proceeds of any Principal Prepayment made by the
Mortgagor and any Insurance Proceeds or Liquidation Proceeds.
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.
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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, or 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, including Buydown Funds, if any, net of any
portion thereof retained by the Master Servicer or any Sub-Servicer as
Servicing Fees;
(iii) all Insurance Proceeds, other than proceeds that represent
reimbursement of costs and expenses incurred by the Master Servicer or any
Sub-Servicer in connection with presenting claims under the related
Insurance Policies, Liquidation Proceeds and REO Proceeds;
(iv) all proceeds of any Mortgage Loan or REO Property repurchased or
purchased in accordance with Sections 2.02, 2.04 , 3.14, 3.24 or 9.01; and
all amounts required to be deposited in connection with the substitution of
a Qualified Substitute Mortgage Loan pursuant to Section 2.04; and
(v) any amounts required to be deposited pursuant to Section 3.12,
3.13, 3.15 or 3.22.
The foregoing requirements for deposit in the Custodial Account shall
be exclusive. In the event the Master Servicer shall deposit in the Custodial
Account any amount not required to be deposited therein, it may withdraw such
amount from the Custodial Account, any provision herein to the contrary
notwithstanding. The Custodial Account shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage pass-through
certificates of other series, and the other accounts of the Master Servicer.
(b) Funds in the Custodial Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Master Servicer shall give notice to the Trustee and the Company of the location
of the Custodial Account after any change thereof.
SECTION 3.11. Permitted Withdrawals From the Custodial Account.
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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, 3.24 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 Servicing
Fees and unreimbursed Servicing Advances, the Master Servicer's or any
Sub-Servicer's right to reimbursement pursuant to this clause (vi) with
respect to any Mortgage Loan being limited to late recoveries of the
payments for which such advances were made pursuant to Section 3.01 or
Section 3.09 and any other related Late Collections;
(vii) to pay itself as servicing compensation (in addition to the
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 PMI Pool Policy
and the Radian Lender-Paid PMI Policies; and
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(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 (ix).
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.
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
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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 take all such actions on behalf of the Trust
Fund as are necessary to service, maintain and administer each Radian PMI Pool
Policy and to enforce the Trust Fund's rights under each Radian PMI Pool Policy.
The Master Servicer shall effect the timely payment of the premium on the Radian
PMI Pool Policy from amounts on deposit in the Custodial Account. To the extent
the Mortgagor with respect to a Radian PMI Insured Loan is delinquent, the
Master Servicer shall advance the related premium as a Servicing Advance. Except
as expressly set forth herein, the Master Servicer shall have full authority on
behalf of the Trust Fund to do anything it reasonably deems appropriate or
desirable in connection with the servicing, maintenance and administration of
the Radian PMI Policy. The Master Servicer shall make its best reasonable
efforts to file all insured claims under the Radian PMI Pool Policy and collect
from Radian all Insurance Proceeds due to the Trust Fund under the Radian PMI
Pool Policy. The Master Servicer shall not take, or permit any subservicer to
take, any action which would result in non-coverage under the Radian PMI Pool
Policy of any loss which, but for the actions of the Master Servicer or any
Subservicer, would have been covered thereunder. To the extent coverage is
available, the Master Servicer shall keep or cause to be kept in full force and
effect each Radian PMI Pool Policy for the life of the Mortgage Loan. Neither
the Master Servicer nor the Trustee shall terminate the Radian PMI Pool Policy
with respect to any Mortgage Loan, except in accordance with the terms thereof.
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 PMI Loan.
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 (i) the Certificates shall be
rated no lower than the rating assigned by each Rating Agency to the
Certificates
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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 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 November 15, 2000, 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 such policy would have been deposited in the Custodial
Account. Any such deposit shall not be deemed Servicing Advances and the Master
Servicer shall not be entitled to reimbursement therefor. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Master
Servicer agrees to present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy.
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SECTION 3.14. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
The Master Servicer will, to the extent it has knowledge of any
conveyance or prospective conveyance by any Mortgagor of the Mortgaged Property
(whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains or is to remain liable under the Mortgage Note or the
Mortgage), exercise or cause to be exercised its rights to accelerate the
maturity of such Mortgage Loan under any "due-on-sale" clause applicable
thereto; provided, however, that the Master Servicer shall not exercise any such
rights if it reasonably believes that it is prohibited by law from doing so. The
Master Servicer or the related Sub-Servicer may repurchase a Mortgage Loan at
the Purchase Price when the Master Servicer requires acceleration of the
Mortgage Loan, but only if the Master Servicer is satisfied, as evidenced by an
Officer's Certificate delivered to the Trustee, that either (i) such Mortgage
Loan is in default or default is reasonably foreseeable or (ii) if such Mortgage
Loan is not in default or default is not reasonably foreseeable, such repurchase
will have no adverse tax consequences for the Trust Fund or any
Certificateholder. If the Master Servicer is unable to enforce such
"due-on-sale" clause (as provided in the second preceding sentence) or if no
"due-on-sale" clause is applicable, the Master Servicer or the Sub-Servi cer 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 Trustee the original copy of such assumption
agreement, which copy shall be added by the Trustee 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 either REMIC I or REMIC II to fail to qualify as a REMIC for federal
income tax purposes, as evidenced by an Opinion of Counsel. The Master Servicer
is also authorized to enter into a substitution of liability agreement with such
Person, pursuant to which the original Mortgagor is released from liability and
such Person is substituted as the Mortgagor and becomes liable under the
Mortgage Note. Any fee collected by or on behalf of the Master Servicer for
entering into an assumption or substitution of liability agreement will be
retained by or on behalf of the Master Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the Mortgage Rate, the amount of the
Monthly Payment and any other term affecting the amount or timing of payment on
the Mortgage Loan) may be changed. The Master Servicer shall not enter into any
substitution or assumption if such substitution or assumption shall (i) both
constitute a "significant modification" effecting an exchange or reissuance of
such Mortgage Loan under the Code (or Treasury regulations promulgated
thereunder) and cause either REMIC I or REMIC II to fail to qualify as a REMIC
under the REMIC Provisions or (ii) cause the imposition of any tax on
"prohibited transactions" or
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"contributions" after the Startup Day under the REMIC Provisions. The Master
Servicer shall notify the Trustee that any such substitution or assumption
agreement has been completed by forwarding to the Trustee 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 other wise 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) 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 order of priority: first, to
reimburse the Master Servicer or any Sub-Servicer for any related unreimbursed
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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 Servicing Fees; and second, to interest
at the Net Mortgage Rate. The portion of the recovery so allocated to unpaid
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, and second, for distribution 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.
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 of such certification and
request, the Trustee 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. 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 Trustee shall, upon request
of the Master Servicer and delivery to the Trustee of a Request for Release in
the form attached hereto as Exhibit F-1, release the related Mortgage File to
the Master Servicer and the Trustee shall execute such documents as the Master
Servicer shall prepare and request as being necessary to the prosecution of any
such proceedings. Such Request for Release shall obligate the Master Servicer to
return each document previously requested from the Mortgage File to the Trustee
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
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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 Servicing Fees
with respect to each Mortgage Loan (less any portion of such amounts retained by
any Sub-Servicer). In addition, the Master Servicer shall be entitled to recover
unpaid Servicing Fees out of related Late Collections to the extent permitted in
Section 3.11.
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 prepayment charges, assumption fees, late payment charges and reconveyance
fees. 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 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.
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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 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.
Within 120 days after December 31 of each year, commencing on the
first December 31 following the first anniversary of the Closing Date, 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) Within 120 days after December 31 of each year, commencing on the
first December 31 following the first anniversary of the Closing Date, the
Master Servicer, at its expense, shall cause a firm of independent public
accountants who are members of the American Institute of
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Certified Public Accountants 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) Within 120 days after December 31 of each year, commencing
December 2001, 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 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.
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SECTION 3.22. Title, Conservation and Disposition of REO Property.
This Section shall apply only to REO Properties acquired for the
account of REMIC I and shall not apply to any REO Property relating to a
Mortgage Loan which was purchased or repurchased from REMIC I pursuant to
Sections 2.02, 2.04, 3.14 or 3.24. 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 I, shall either sell any REO Property before the
close of the third taxable year following the taxable year in which REMIC I
acquires ownership of such REO Property for purposes of Section 860G(a)(8) of
the Code or, at the expense of REMIC I, 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 I of such REO Property subsequent to the close of the third
taxable year following the taxable year in which REMIC I acquires ownership of
such REO Property will not result in the imposition on REMIC I of taxes on
"prohibited transactions" thereof, as defined in Section 860F of the Code, or
cause either REMIC I or REMIC II 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 either REMIC I or REMIC II 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
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for any related unreimbursed Servicing Advances and any unreimbursed related
Advances as well as any unpaid Servicing Fees from proceeds received in
connection with the REO Disposition, as further provided in Section 3.15. The
Master Servicer shall not be obligated to advance any amounts with respect to an
REO Property if, in its good faith judgment, the Master Servicer determines that
such advance would constitute a Nonrecoverable Advance.
The REO Disposition shall be carried out by the Master Servicer at
such price and upon such terms and conditions as the Master Servicer shall
determine.
The Master Servicer shall deposit the proceeds from the REO
Disposition, net of any payment to the Master Servicer as provided above, in the
Custodial Account upon receipt thereof for distribution in accordance with
Section 4.01; provided, that any such net proceeds received by the Master
Servicer which are in excess of the applicable Stated Principal Balance plus all
unpaid REO Imputed Interest thereon through the last day of the month in which
the REO Disposition occurred ("Excess Proceeds") shall be retained by the Master
Servicer as additional servicing compensation.
With respect to any Mortgage Loan as to which the Master Servicer has
received notice of, or has actual knowledge of, the presence of any toxic or
hazardous substance on the Mortgaged Property, the Master Servicer shall not, on
behalf of the Trustee, either (i) obtain title to the related Mortgaged Property
as a result of or in lieu of foreclosure or otherwise, or (ii) otherwise acquire
possession of, the related Mortgaged Property, unless the Master Servicer has,
at least 30 days prior to taking such action, obtained and delivered to the
Trustee an environmental audit report prepared by a Person who regularly
conducts environmental audits using customary industry standards. The Master
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund (other than proceeding against the Mortgaged Property) and is
hereby authorized at such time as it deems appropriate to release such Mortgaged
Property from the lien of the related Mortgage.
The cost of the environmental audit report contemplated by this
Section 3.22 shall be advanced by the Master Servicer as an expense of the Trust
Fund, and the Master Servicer shall be reimbursed therefor from the Custodial
Account as provided in Section 3.11, any such right of reimbursement being prior
to the rights of the Certificateholders to receive any amount in the Custodial
Account.
If the Master Servicer determines, as described above, that it is in
the best economic interest of the Trust Fund to take such actions as are
necessary to bring any such Mortgaged Property in compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials affecting any such Mortgaged Property, then
the Master Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund. The cost of any such compliance,
containment, clean-up or remediation shall be advanced by the Master Servicer as
an expense of the Trust Fund, and the Master Servicer shall be entitled to be
reimbursed
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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.
SECTION 3.24 Optional Purchase of Defaulted Mortgage Loans.
The Master Servicer or any affiliate of the Master Servicer, in its
sole discretion, shall have the right to elect (by written notice sent to the
Master Servicer, and the Trustee), but shall not be obligated, to purchase for
its own account from the Trust Fund any Mortgage Loan which is 90 days or more
delinquent in the manner and at the price specified in Section 2.04. The
purchase price for any Mortgage Loan purchased hereunder shall be deposited in
the Certificate Account and the Trustee, upon receipt of such deposit, shall
release or cause to be released to the purchaser of such Mortgage Loan the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment prepared by the purchaser of such Mortgage Loan, in each case
without recourse, as shall be necessary to vest in the purchaser of such
Mortgage Loan any Mortgage Loan released pursuant hereto and the purchaser of
such Mortgage Loan shall succeed to all the Trustee's right, title and interest
in and to such Mortgage Loan and all security and documents related thereto.
Such assignment shall be an assignment outright and not for security. The
purchaser of such Mortgage Loan shall thereupon own such Mortgage Loan, and all
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto. Notwithstanding the foregoing, the
Trustee, whether acting as Trustee or in the capacity of successor Master
Servicer, shall have no obligation to repurchase any Mortgage Loan.
SECTION 3.25. 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 or Notional Amount 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 or Notional Amount 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 or
Notional Amount 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
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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 3.26. Periodic Filings with the Securities and Exchange
Commission; Additional Information.
The Trustee shall prepare or cause to be prepared for filing with the
Commission any and all reports, statements and information respecting the Trust
Fund and/or the Certificates required to be filed with the Commission pursuant
to the Securities Exchange Act of 1934, as amended, and shall solicit any and
all proxies of the Certificateholders whenever such proxies are required to be
solicited, pursuant to the Securities Exchange Act of 1934, as amended. The
Company shall promptly file, and exercise its reasonable best efforts to obtain
a favorable response to, no-action requests with, or other appropriate exemptive
relief from, the Commission seeking the usual and customary exemption from such
reporting requirements granted to issuers of securities similar to the
Certificates. Fees and expenses incurred by the Trustee in connection with this
Section shall not be reimbursable from the Trust Fund.
The Master Servicer and the Company each agree to promptly furnish to
the Trustee, from time to time upon request, such further information, reports
and financial statements within their respective control related to this
Agreement and the Mortgage Loans as the Trustee reasonably deems appropriate to
prepare and file all necessary reports with the Commission.
SECTION 3.27. Administration of Buydown Funds.
(a) With respect to any Buydown Mortgage Loan, the Sub-Servicer has
deposited Buydown Funds in an account that satisfies the requirements for a
Sub-Servicing Account (the "Buydown Account"). The Master Servicer shall cause
the Sub-Servicing Agreement to require that upon receipt from the Mortgagor of
the amount due on a Due Date for each Buydown Mortgage Loan, the Sub-Servicer
will withdraw from the Buydown Account the predetermined amount that, when added
to the amount due on such date from the Mortgagor, equals the full Monthly
Payment and transmit that amount in accordance with the terms of the
Sub-Servicing Agreement to the Master Servicer together with the related payment
made by the Mortgagor or advanced by the Sub-Servicer.
(b) If the Mortgagor on a Buydown Mortgage Loan prepays such loan in
its entirety during the period (the "Buydown Period") when Buydown Funds are
required to be applied to such Buydown Mortgage Loan, the Sub-Servicer shall be
required to withdraw from the Buydown Account and remit any Buydown Funds
remaining in the Buydown Account in accordance with the related buydown
agreement. The amount of Buydown Funds which may be remitted in accordance with
the related buydown agreement may reduce the amount required to be paid by the
Mortgagor to fully prepay the related Mortgage Loan. If the Mortgagor on a
Buydown Mortgage Loan defaults on such Mortgage Loan during the Buydown Period
and the property securing such Buydown Mortgage Loan is sold in the liquidation
thereof (either by the Master Servicer or the insurer under
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any related Primary Insurance Policy), the Sub-Servicer shall be required to
withdraw from the Buydown Account the Buydown Funds for such Buydown Mortgage
Loan still held in the Buydown Account and remit the same to the Master Servicer
in accordance with the terms of the Sub-Servicing Agreement for deposit in the
Custodial Account or, if instructed by the Master Servicer, pay to the insurer
under any related Primary Insurance Policy if the Mortgaged Property is
transferred to such insurer and such insurer pays all of the loss incurred in
respect of such default. Any amount so remitted pursuant to the preceding
sentence will be deemed to reduce the amount owed on the Mortgage Loan.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Certificate Account; 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, 3.22 or 3.23 and (iii) all other amounts constituting the Available
Distribution Amount for the immediately succeeding Distribution Date.
(b) 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 the Trustee's Fee for such Distribution Date.
(c) 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 following amounts, in the following order of
priority, in each case to the extent of the remaining Available Distribution
Amount:
(i) to the Class A Certificateholders (other than the Principal
Only Certificateholders, and, with respect to the Accrual
Certificateholders, net of the Accrual Distribution Amount) and the
Class R Certificateholders, on a pro rata basis based on Accrued
Certificate Interest payable on such Certificates with respect to such
Distribution Date, Accrued Certificate Interest on such Classes of
Certificates, as applicable, for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date (the "Senior Interest Distribution
Amount");
(ii) (X) to the Principal Only Certificateholders, the Principal
Only Distribution Amount; and
(Y) to the Class A Certificateholders (other than the
Interest Only and Principal Only Certificateholders) and Class R
Certificateholders, in the priorities and amounts set forth in Section
4.01(d)(ii) and Sections 4.01(e), the sum
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of the following (applied to reduce the Certificate Principal Balances
of such Class A Certificates or Class R Certificates, as applicable):
(A) the Senior Percentage for such Distribution Date times
the sum of the following:
(1) the principal portion of each Monthly Payment due
during the related Due Period on each Outstanding Mortgage
Loan (other than the related Discount Fraction of the
principal portion of such payment with respect to a Discount
Mortgage Loan), whether or not received on or prior to the
related Determination Date, minus the principal portion of
any Debt Service Reduction (other than the related Discount
Fraction of the principal portion of such Debt Service
Reductions with respect to each Discount Mortgage Loan)
which together with other Bankruptcy Losses exceeds the
Bankruptcy Amount;
(2) the Stated Principal Balance of any Mortgage Loan
repurchased during the related Prepayment Period pursuant to
Section 2.02, 2.04, 3.14 or 3.24 and the amount of any
shortfall deposited in the Custodial Account in connection
with the substitution of a Deleted Mortgage Loan pursuant to
Section 2.04 during the related Prepayment Period (other
than the related Discount Fraction of such Stated Principal
Balance or shortfall with respect to a Discount Mortgage
Loan); and
(3) the principal portion of all other unscheduled
collections (other than Principal Prepayments in Full and
Curtailments and amounts received in connection with a Cash
Liquidation or REO Disposition of a Mortgage Loan described
in Section 4.01(c)(ii)(Y)(B), including without limitation
Insurance Proceeds, Liquidation Proceeds and REO Proceeds)
received during the related Prepayment Period to the extent
applied by the Master Servicer as recoveries of principal of
the related Mortgage Loan pursuant to Section 3.15 (other
than the related Discount Fraction of the principal portion
of such unscheduled collections with respect to a Discount
Mortgage Loan);
(B) with respect to each Mortgage Loan for which a Cash
Liquidation or a REO Disposition occurred during the related
Prepayment Period and did not result in any Excess Special Hazard
Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary Losses, an amount equal to the lesser of (a) the
Senior Percentage for such Distribution Date times the Stated
Principal Balance of such Mortgage Loan (other than the related
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Discount Fraction of such Stated Principal Balance, with respect
to a Discount Mortgage Loan) and (b) the Senior Accelerated
Distribution Percentage for such Distribution Date times the
related unscheduled collections (including without limitation
Insurance Proceeds, Liquidation Proceeds and REO Proceeds) to the
extent applied by the Master Servicer as recoveries of principal
of the related Mortgage Loan pursuant to Section 3.15 (in each
case other than the portion of such unscheduled collections, with
respect to a Discount Mortgage Loan included in Section
4.01(d)(i)(C)));
(C) the Senior Accelerated Distribution Percentage for such
Distribution Date times the aggregate of all Principal
Prepayments in Full and Curtailments received in the related
Prepayment Period (other than the related Discount Fraction of
such Principal Prepayments in Full and Curtailments, with respect
to a Discount Mortgage Loan); and
(D) any amounts described in subsection (ii)(Y), clauses
(A), (B) or (C) of this Section 4.01(c), as determined for any
previous Distribution Date, which remain unpaid after application
of amounts previously distributed pursuant to this clause (D) to
the extent that such amounts are not attributable to Realized
Losses which have been allocated to the Class M Certificates or
Class B Certificates;
(iii) to the Holders of the Class M-1 Certificates and to the
Holders of the Class M-X Certificates, on a pro rata basis, based on
Accrued Certificate Interest payable to such Certificates with respect
to such Distribution Date, the Accrued Certificate Interest thereon
for such Distribution Date, plus any Accrued Certificate Interest
thereon remaining unpaid from any previous Distribution Date, except
as provided below;
(iv) to the Holders of the Class M-1 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date, minus (y) the amount
of any Principal Only Collection Shortfalls for such Distribution Date
or remaining unpaid for all previous Distribution Dates, to the extent
the amounts available pursuant to clause (x) of Sections 4.01(c)(vi),
(viii), (x), (xii), (xiii) and (xiv) are insufficient therefor,
applied in reduction of the Certificate Principal Balance of the Class
M-1 Certificates;
(v) to the Holders of the Class M-2 Certificates based on Accrued
Certificate Interest payable to such Certificate with respect to such
Distribution Date, the Accrued Certificate Interest thereon for such
Distribution Date, plus any Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date, except as
provided below;
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(vi) to the Holders of the Class M-2 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date, minus (y) the amount
of any Principal Only Collection Shortfalls for such Distribution Date
or remaining unpaid for all previous Distribution Dates, to the extent
the amounts available pursuant to clause (x) of Sections
4.01(c)(viii), (x), (xii), (xiii) and (xiv) are insufficient therefor,
applied in reduction of the Certificate Principal Balance of the Class
M-2 Certificates;
(vii) to the Holders of the Class M-3 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below;
(viii) to the Holders of the Class M-3 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date minus (y) the amount
of any Principal Only Collection Shortfalls for such Distribution Date
or remaining unpaid for all previous Distribution Dates, to the extent
the amounts available pursuant to clause (x) of Sections 4.01(c)(x),
(xii), (xiii) and (xiv) are insufficient therefor, applied in
reduction of the Certificate Principal Balance of the Class M-3
Certificates;
(ix) to the Holders of the Class B-1 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below;
(x) to the Holders of the Class B-1 Certificates, an amount equal
to (x) the Subordinate Principal Distribution Amount for such Class of
Certificates for such Distribution Date minus (y) the amount of any
Principal Only Collection Shortfalls for such Distribution Date or
remaining unpaid for all previous Distribution Dates, to the extent
the amounts available pursuant to clause (x) of Sections 4.01(c)(xii),
(xiii) and (xiv) are insufficient therefor, applied in reduction of
the Certificate Principal Balance of the Class B-1 Certificates;
(xi) to the Holders of the Class B-2 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below;
(xii) to the Holders of the Class B-2 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date minus (y) the amount
of any Principal Only Collection Shortfalls for such Distribution Date
or remaining unpaid for all previous Distribution Dates, to the extent
the amounts available pursuant to clause (x) of Sections 4.01(c)(xiii)
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and (xiv) are insufficient therefor, applied in reduction of the
Certificate Principal Balance of the Class B-2 Certificates;
(xiii) to the Holders of the Class B-3 Certificates, an amount
equal to (x) the Accrued Certificate Interest thereon for such
Distribution Date, plus any Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date, except as
provided below minus (y) the amount of any Principal Only Collection
Shortfalls for such Distribution Date or remaining unpaid for all
previous Distribution Dates to the extent the amounts available
pursuant to clause (x) of Section 4.01(c)(xiv) are insufficient
therefor;
(xiv) to the Holders of the Class B-3 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date minus (y) the amount
of any Principal Only Collection Shortfalls for such Distribution Date
or remaining unpaid for all previous Distribution Dates applied in
reduction of the Certificate Principal Balance of the Class B-3
Certificates;
(xv) to the Class A Certificateholders and Class R
Certificateholders in the priority set forth in Section 4.01(d), the
portion, if any, of the Available Distribution Amount remaining after
the foregoing distributions, applied to reduce the Certificate
Principal Balances of such Class A Certificates and Class R
Certificates, but in no event more than the aggregate of the
outstanding Certificate Principal Balances of each such Class of Class
A Certificates and Class R Certificates, and thereafter, to each Class
of Class M Certificates then outstanding beginning with such Class
with the lowest numerical designation, any portion of the Available
Distribution Amount remaining after the Class A Certificates and Class
R Certificates have been retired, applied to reduce the Certificate
Principal Balance of each such Class of Class M Certificates, but in
no event more than the outstanding Certificate Principal Balance of
each such Class of Class M Certificates; and thereafter to each such
Class of Class B Certificates then outstanding beginning with such
Class with the lowest numerical designation, any portion of the
Available Distribution Amount remaining after the Class M Certificates
have been retired, applied to reduce the Certificate Principal Balance
of each such Class of Class B Certificates, but in no event more than
the outstanding Certificate Principal Balance of each such Class of
Class B Certificates; and
(xvi) to the Class R-II Certificateholders, the balance, if any,
of the Available Distribution Amount.
(d) Distributions of principal on the Class A Certificates (other than
the Interest Only Certificates) and Class R Certificates on each Distribution
Date occurring prior to the occurrence of the Credit Support Depletion Date will
be made as follows:
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(i) first, to the Principal Only Certificates, until the
Certificate Principal Balance thereof is reduced to zero, an amount
(the "Principal Only Distribution Amount") equal to the aggregate of:
(A) the related Discount Fraction of the principal portion
of each Monthly Payment on each Discount Mortgage Loan due during
the related Due Period, whether or not received on or prior to
the related Determination Date, minus the Discount Fraction of
the principal portion of any related Debt Service Reduction which
together with other Bankruptcy Losses exceeds the Bankruptcy
Amount;
(B) the related Discount Fraction of the principal portion
of all unscheduled collections on each Discount Mortgage Loan
received during the preceding calendar month (other than amounts
received in connection with the Cash Liquidation or REO
Disposition of a Discount Mortgage Loan described in clause (C)
below), including Principal Prepayments in Full, Curtailments and
repurchases of Discount Mortgage Loans (or, in the case of a
substitution of a Deleted Mortgage Loan, the Discount Fraction of
the amount of any shortfall deposited in the Custodial Account in
connection with such substitution);
(C) in connection with the Cash Liquidation or REO
Disposition of a Discount Mortgage Loan that did not result in
any Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses, an amount equal to the
lesser of (1) the applicable Discount Fraction of the Stated
Principal Balance of such Discount Mortgage Loan immediately
prior to such Distribution Date and (2) the aggregate amount of
the collections on such Discount Mortgage Loan to the extent
applied as recoveries of principal;
(D) any amounts allocable to principal for any previous
Distribution Date (calculated pursuant to clauses (A) through (C)
above) that remain undistributed; and
(E) the amount of any Principal Only Collection Shortfalls
for such Distribution Date and the amount of any Principal Only
Collection Shortfalls remaining unpaid for all previous
Distribution Dates, but only to the extent of the Eligible Funds
for such Distribution Date;
(ii) second, the balance of the Senior Principal Distribution
Amount, if any, remaining after the distribution described in clause
(i) above shall be distributed as follows:
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(A) first, an amount equal to the Accrual Distribution
Amount shall be distributed to the Class A-7 Certificates and
Class A-8 Certificates, in that order, in reduction of the
Certificate Principal Balances thereof, until the Certificate
Principal Balances thereof have been reduced to zero;
(B) second, from the Senior Principal Distribution Amount,
to the Class A-10 Certificates and Class A-11 Certificates on a
pro rata basis, based on the Certificate Principal Balances
thereof, in reduction of the Certificate Principal Balances
thereof, until the Certificate Principal Balances thereof have
been reduced to zero, an amount equal to the lesser of (a) the
Lockout Priority Amount for such Distribution Date and (b) 98.6%
of the Senior Principal Distribution Amount;
(C) third, the balance of the Senior Principal Distribution
Amount, if any, remaining after the distribution described in
clause (B) above shall be distributed to the Class R-I and Class
R-II Certificates on a pro rata basis, based on the Certificate
Principal Balances thereof, in reduction of the Certificate
Principal Balances thereof, until the Certificate Principal
Balances thereof have been reduced to zero;
(D) fourth, the balance of the Senior Principal Distribution
Amount, if any, remaining after the distribution described in
clause (C) above shall be distributed as follows:
(1) first, an amount up to $1,905,000 to be distributed
on each Distribution Date, concurrently, in reduction of the
Certificate Principal Balances of the Class A-1, Class A-3
and Class A-5 Certificates in the following manner and
priority, until the Certificate Principal Balance of either
the Class A-3 Certificates or Class A-5 Certificates has
been reduced to zero:
(a) 95.00% of such amount to the Class A-1
Certificates and Class A-3 Certificates, in that order;
and
(b) 5.00% of such amount to the Class A-5
Certificates;
(2) second, sequentially, to the Class A-5, Class A-1,
Class A-3, Class A-7 and Class A-8 Certificates, in that
order, in reduction of the Certificate Principal Balances
thereof, until the Certificate Principal Balances thereof
have been reduced to zero; and
(3) third, to the Class A-10 Certificates and Class
A-11 Certificates on a pro rata basis, based on the
Certificate Principal
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Balances thereof, in reduction of the Certificate Principal
Balances thereof, until the Certificate Principal Balances
thereof have been reduced to zero.
(e) On or after the occurrence of the Credit Support Depletion Date
but prior to the reduction of the Certificate Principal Balance of the Senior
Support Certificates to zero, all priorities relating to distributions as
described above in respect of principal among the Senior Certificates (other
than the Principal Only Certificates) will be disregarded, an amount equal to
the Discount Fraction of the principal portion of scheduled payments and
unscheduled collections received or advanced in respect of Discount Mortgage
Loans will be distributed to the Principal Only Certificates, and the Senior
Principal Distribution Amount will be distributed to all classes of Senior
Certificates (other than the Principal Only Certificates) pro rata in accordance
with their respective outstanding Certificate Principal Balances and the Senior
Interest Distribution Amount will be distributed as set forth in Section
4.01(c)(i) above, provided that the aggregate amount distributable to the Senior
Support Certificates and Super Senior Certificates will be distributed among
such Certificates in the following priority: first, to the Super Senior
Certificates, up to an amount equal to the Accrued Certificate Interest thereon;
second to the Super Senior Certificates, up to the Super Senior Optimal
Principal Distribution Amount, in reduction of the Certificate Principal Balance
thereof, until such Certificate Principal Balance has been reduced to zero;
third, to the Senior Support Certificates, up to an amount equal to the Accrued
Certificate Interest thereon; and fourth, to the Senior Support Certificates,
the remainder, until the Certificate Principal Balance thereof is reduced to
zero.
(f) On or after the occurrence of the Credit Support Depletion Date
and upon reduction of the Certificate Principal Balance of the Senior Support
Certificates to zero, all priorities relating to distributions as described
above in respect of principal among the Senior Certificates (other than the
Principal Only Certificates) will be disregarded, an amount equal to the
Discount Fraction of the principal portion of scheduled payments and unscheduled
collections received or advanced in respect of Discount Mortgage Loans will be
distributed to the Principal Only Certificates, and the Senior Principal
Distribution Amount will be distributed to all classes of Senior Certificates
(other than the Principal Only Certificates) pro rata in accordance with their
respective outstanding Certificate Principal Balances and the Senior Interest
Distribution Amount will be distributed as set forth in Section 4.01(c)(i)
above.
(g) On each Distribution Date prior to the Accretion Termination Date,
an amount equal to the Accrued Certificate Interest that would otherwise be
distributed on the Class A-8 Certificates shall be added to the Certificate
Principal Balance of such Certificates. On or after the Accretion Termination
Date, the entire amount of Accrued Certificate Interest on the Class A-8
Certificates for such Distribution Date shall be payable to the Class A-8
Certificateholders pursuant to Section 4.01(c)(i) to the extent not required to
reduce the Certificate Principal Balance of the Class A-7 Certificates to zero
on such Accretion Termination Date; provided that if the Accretion Termination
Date is the Credit Support Depletion Date, the entire amount of Accrued
Certificate Interest on the Class A-8 Certificates for such Distribution Date
will be paid to the Class A-8 Certificateholders. Any such Accrued Certificate
Interest on the Class A-8 Certificates which is
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required to be paid to the holders of the Class A-7 Certificates on the
Accretion Termination Date will be added to the Certificate Principal Balance of
the Class A-8 Certificates in the manner described in the first sentence of this
Section 4.01(g).
(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 may 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 Business Day next
preceding the Distribution Date next following the date of such investment
(except that (i) any investment in the institution with which the Certificate
Account is maintained may mature on such Distribution Date and (ii) any other
investment may mature on such Distribution Date if the Trustee shall advance
funds on such Distribution Date to the Certificate Account in the amount payable
on such investment on such Distribution Date, pending receipt thereof to the
extent necessary to make distributions on the Certificates) and shall not be
sold or disposed of prior to maturity. All income and gain realized from any
such investment shall be for the benefit of the Trustee and shall be subject to
its withdrawal or order from time to time. The amount of any losses incurred in
respect of any such investments shall be deposited in the Certificate Account by
the Trustee out of its own funds immediately as realized without any right of
reimbursement.
(j) Except as otherwise provided in Section 9.01, if the Master
Servicer anticipates that a final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Master Servicer
shall, no later than the Determination Date in the month of such final
distribution, notify the Trustee and the Trustee shall, no later than two (2)
Business Days after such Determination Date, mail on such date to each Holder of
such Class of Certificates a notice to the effect that: (i) the Trustee
anticipates that the final distribution with respect to such Class of
Certificates will be made on such Distribution Date but only upon presentation
and surrender of such Certificates at the office of the Trustee or as otherwise
specified therein, and (ii) no interest shall accrue on such Certificates from
and after the end of the prior calendar month.
Any funds not distributed to any Holder or Holders of Certificates of
such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
in trust and credited to the account of the appropriate non- tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.01(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
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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 remaining
non-tendering Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining the funds in trust and of contacting such
Certificateholders shall be paid out of the assets remaining in the Trust Fund.
If within nine months after the second notice any such Certificates shall not
have been surrendered for cancellation, the Class R Certificateholders shall be
entitled to all unclaimed funds and other assets which remain subject hereto. No
interest shall accrue or be payable to any Certificateholder on any amount held
in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(j).
SECTION 4.02. Statements to Certificateholders.
On each Distribution Date the Trustee shall make available to each
Holder of a Certificate and to the Company, the Master Servicer and the Rating
Agencies, a statement based on information provided by the Master Servicer as to
such distribution setting forth:
(i) (a) the amount of such distribution to the Certificateholders of
each Class applied to reduce the Certificate Principal Balance thereof, and
(b) the aggregate amount included therein representing Principal
Prepayments;
(ii) the amount of such distribution to Holders of each Class of
Certificates allocable to interest and the Pass-Through Rate on each Class
of Certificates for such Distribution Date;
(iii) if the distribution to the Holders of any Class of Certificates
is less than the full amount that would be distributable to such Holders if
there were sufficient funds available therefor, the amount of the
shortfall;
(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 aggregate Certificate Principal Balance or Notional Amount,
as applicable, of each Class of Certificates, the Senior Accelerated
Distribution Percentage and each of the Senior, Class M and Class B
Percentages, after giving effect to the amounts distributed on such
Distribution Date, separately identifying any reduction thereof due to
Realized Losses other than pursuant to an actual distribution of principal;
(vii) the related Subordinate Principal Distribution Amount and
Prepayment Distribution Percentage, if applicable;
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(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;
(ix) the number, aggregate principal balance and book value of any REO
Properties;
(x) the aggregate Accrued Certificate Interest remaining unpaid, if
any, for each Class of Certificates, after giving effect to the
distribution made on such Distribution Date;
(xi) the Special Hazard Amount, Fraud Loss Amount and Bankruptcy
Amount as of the close of business on such Distribution Date and a
description of any change in the calculation of such amounts;
(xii) the weighted average Net Mortgage Rate for such Distribution
Date;
(xiii) the occurrence of the Credit Support Depletion Date;
(xiv) the Senior Accelerated Distribution Percentage applicable to
such distribution;
(xv) the Senior Percentage and Lockout Priority Percentage for such
Distribution Date;
(xvi) the aggregate amount of Realized Losses for such Distribution
Date;
(xvii) the weighted average remaining term to maturity of the Mortgage
Loans prior to giving effect to the amounts distributed on such
Distribution Date; and
(xviii) the weighted average Mortgage Rates of the Mortgage Loans
prior to giving effect to the amounts distributed on such Distribution
Date.
In the case of information furnished pursuant to subclauses (i) -
(iii) above, the amounts shall also be expressed as a dollar amount per Single
Certificate.
On each Distribution Date the Trustee shall provide Bloomberg
Financial Markets, L.P. ("Bloomberg") CUSIP level factors for each Class of
Certificates as of such Distribution Date, using a format and media mutually
acceptable to the Trustee and Bloomberg.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall prepare and forward, to each Person who at any time
during the calendar year was a Holder of a Certificate, a statement containing
the information set forth in subclauses (i) - (iii) 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
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that substantially comparable information shall be provided by the Trustee
pursuant to any require ments of the Code and regulations thereunder as from
time to time are in force.
On each Distribution Date the Trustee shall prepare and forward, to
each Holder of a Residual 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 Residual 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.
SECTION 4.03. Remittance Reports; Advances by the Master Servicer.
(a) On the Business Day following each Determination Date, the Master
Servicer shall deliver to the Trustee a report, prepared as of the close of
business on the Determination Date (the "Remittance Report"), in the form of an
electromagnetic tape or disk. The Remittance Report and any written information
supplemental thereto shall include such information with respect to the Mortgage
Loans that is required by the Trustee for purposes of making the calculations
and preparing the statement described in Sections 4.01 and 4.02, as set forth in
written specifications or guidelines issued by the Trustee from time to time.
The Trustee shall have no obligation to recompute, recalculate or verify any
information provided to it by the Master Servicer.
(b) The Master Servicer shall determine the aggregate amount of
Advances required to be made for the related Distribution Date, which shall be
in an aggregate amount equal to the sum of (1) the aggregate amount of Monthly
Payments (with each interest portion thereof adjusted to the Mortgage Rate less
the Servicing Fee Rate), other than Balloon Payments, less the amount of any
related Debt Service Reductions or reductions in the amount of interest
collectable from the Mortgagor pursuant to the Relief Act, on the Outstanding
Mortgage Loans as of the related Due Date, which Monthly Payments were
delinquent as of the close of business as of the related Determination Date plus
(2) with respect to each Balloon Loan delinquent in respect of its Balloon
Payment as of the close of business on the related Determination Date, an amount
equal to the assumed Monthly Payment (net of the related Servicing Fees) that
would have been due on the related Due Date based on the original principal
amortization scheduled for such Balloon Loan until such Balloon Loan is finally
liquidated; provided that no Advance shall be made if it would be a
Nonrecoverable Advance. On or before 4:00 P.M. New York time on each Certificate
Account Deposit Date, the Master Servicer shall either (i) deposit in the
Certificate Account from its own funds, or funds received therefor from the
Sub-Servicers, an amount equal to the Advances to be made by the Master Servicer
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
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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 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. Allocation of Realized Losses.
Prior to each Distribution Date, the Master Servicer shall determine
the total amount of Realized Losses, if any, that resulted from any Cash
Liquidation, Debt Service Reduction, Deficient Valuation or REO Disposition that
occurred during the related Prepayment Period. The amount of each Realized Loss
shall be evidenced by an Officers' Certificate. All Realized Losses, other than
Excess Special Hazard Losses, Extraordinary Losses, Excess Bankruptcy Losses or
Excess Fraud Losses, shall be allocated as follows: first, to the Class B-3
Certificates until the Certificate Principal Balance thereof has been reduced to
zero; second, to the Class B-2 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; third, to the Class B-1 Certificates
until the Certificate Principal Balance thereof has been reduced to zero;
fourth, to the Class M-3 Certificates until the Certificate Principal Balance
thereof has been reduced to zero; fifth, to the
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Class M-2 Certificates until the Certificate Principal Balance thereof has been
reduced to zero; sixth, to the Class M-1 Certificates until the Certificate
Principal Balance thereof has been reduced to zero and, to the extent of the
interest portion of such Realized Losses, to the Class M-X Certificates on a pro
rata basis; and, thereafter, if such Realized Losses are on a Discount Mortgage
Loan, to the Principal Only Certificates, in an amount equal to the Discount
Fraction of the principal portion thereof, and the remainder of such Realized
Losses and the entire amount of such Realized Losses on Non-Discount Mortgage
Loans among all the Class A Certificates (other than the Principal Only
Certificates) and Class R Certificates, on a pro rata basis, as described below.
Any Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses
and Extraordinary Losses on Non- Discount Mortgage Loans will be allocated among
the Class A (other than the Principal Only Certificates), Class M, Class B and
Class R Certificates, on a pro rata basis, as described below. The principal
portion of such losses on Discount Mortgage Loans will be allocated to the
Principal Only Certificates in an amount equal to the related Discount Fraction
thereof, and the remainder of such losses on Discount Mortgage Loans will be
allocated among the Class A Certificates (other than the Principal Only
Certificates), Class M, Class B and Class R Certificates on a pro rata basis, as
described below, PROVIDED, HOWEVER, that Realized Losses otherwise allocable to
the Super Senior Certificates will be allocated to the Senior Support
Certificates until the Certificate Principal Balance of the Senior Support
Certificates is reduced to zero.
As used herein, an allocation of a Realized Loss on a "pro rata basis"
among two or more specified Classes of Certificates means an allocation on a pro
rata basis, among the various Classes so specified, to each such Class of
Certificates on the basis of their then outstanding Certificate Principal
Balances prior to giving effect to distributions to be made on such Distribution
Date in the case of the principal portion of a Realized Loss or based on the
Accrued Certificate Interest thereon payable on such Distribution Date (without
regard to any Compensating Interest for such Distribution Date) in the case of
an interest portion of a Realized Loss; provided that, in determining the
Certificate Principal Balance of the Accrual Certificates for the purpose of
allocating any portion of a Realized Loss thereto, the Certificate Principal
Balance of the Accrual Certificates shall be deemed to be equal to the lesser of
(a) the original Certificate Principal Balance of such Certificate and (b) the
Certificate Principal Balance of such Certificate prior to giving effect to
distributions made on such Distribution Date. Any allocation of the principal
portion of Realized Losses (other than Debt Service Reductions) to the Class B
Certificates or, after the Certificate Principal Balances of the Class B
Certificates have been reduced to zero, to the Class of Class M Certificates
then outstanding with the highest numerical designation shall be made by
operation of the definition of "Certificate Principal Balance" and by operation
of the provisions of Section 4.01. Allocations of the interest portions of
Realized Losses shall be made by operation of the definition of "Accrued
Certificate Interest" and by operation of the provisions of Section 4.01.
Allocations of the principal portion of Debt Service Reductions shall be made by
operation of the provisions of Section 4.01. All Realized Losses and all other
losses allocated to a Class of Certificates hereunder will be allocated among
the Certificates of such Class in proportion to the Percentage Interests
evidenced thereby.
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SECTION 4.05. 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 4.06. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount on the Mortgage Loans,
that the Trustee reasonably believes are applicable under the Code. The consent
of Certificateholders shall not be required for such withholding. In the event
the Trustee withholds any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall, together with its monthly report to
such Certificateholders pursuant to Section 4.02 hereof, indicate such amount
withheld.
SECTION 4.07. Distributions on the Uncertificated REMIC I Regular
Interests.
(a) On each Distribution Date the Trustee shall be deemed to
distribute to itself, as the holder of the Uncertificated REMIC I Regular
Interests, the Uncertificated REMIC I Regular Interest Distribution Amounts in
the following order of priority to the extent of the Available Distribution
Amount (less the Trustee's Fees for such Distribution Date) reduced by
distributions made to the Class R-I Certificates pursuant to Section 4.01(a):
(i) Uncertificated REMIC I Accrued Interest on the Uncertificated
REMIC I Regular Interests for such Distribution Date, plus any
Uncertificated REMIC I Accrued Interest thereon remaining unpaid from
any previous Distribution Date; and
(ii) In accordance with the priority set forth in Section
4.07(b), an amount equal to the sum of the amounts in respect of
principal distributable on the Class A-1, Class A-3, Class A-5, Class
A-7, Class A-8, Class A-10, Class A-11, Class A-13, Class M-1, Class
M- 2, Class M-3, Class B-1, Class B-2, Class B-3 and Class R-II
Certificates under Section 4.01(c), as allocated thereto.
(b) The amount described in Section 4.07(a)(ii) shall be deemed
distributed to (i) Uncertificated REMIC I Regular Interest N, (ii)
Uncertificated REMIC I Regular Interest O, (iii) Uncertificated REMIC I Regular
Interest P, (iv) Uncertificated REMIC I Regular Interest Q, (v) Uncertificated
REMIC I Regular Interest S, (vi) Uncertificated REMIC I Regular Interest T,
(vii)
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Uncertificated REMIC I Regular Interest U, (viii) Uncertificated REMIC I Regular
Interest V, (ix) Uncertificated REMIC I Regular Interest W, (x) Uncertificated
REMIC I Regular Interest X and (xi) Uncertificated REMIC I Regular Interest Y
with the amount to be distributed allocated among such interests in accordance
with the priority assigned to the (i) Class A-1 Certificates, (ii) Class A-3
Certificates, (iii) Class A-5 Certificates, (iv) Class A-7 Certificates, (v)
Class A-8 Certificates, (vi) Class A-10 Certificates, (vii) Class A-11
Certificates, (viii) Class M-1 Certificates, (ix) Class M-2 Certificates, (x)
Class M-3 Certificates, Class B-1 Certificates, Class B-2 Certificates, Class
B-3 Certificates and Class R-II Certificates, and (xi) Class A-13 Certificates,
respectively, under Section 4.01(c) and (d) until the Uncertificated Principal
Balance of each such interest is reduced to zero.
(c) The portion of the Uncertificated REMIC I Regular Interest
Distribution Amounts described in Section 4.07(a)(ii) shall be deemed
distributed by REMIC I to REMIC II in accordance with the priority assigned to
the REMIC II Certificates relative to that assigned to the REMIC I Certificates
under Section 4.01(c).
(d) In determining from time to time the Uncertificated REMIC I
Regular Interest N Distribution Amount, Uncertificated REMIC I Regular Interest
O Distribution Amount, Uncertificated REMIC I Regular Interest P Distribution
Amount, Uncertificated REMIC I Regular Interest Q Distribution Amount,
Uncertificated REMIC I Regular Interest S Distribution Amount, Uncertificated
REMIC I Regular Interest T Distribution Amount, Uncertificated REMIC I Regular
Interest U Distribution Amount, Uncertificated REMIC I Regular Interest V
Distribution Amount, Uncertificated REMIC I Regular Interest W Distribution
Amount, Uncertificated REMIC I Regular Interest X Distribution Amount,
Uncertificated REMIC I Regular Interest Y Distribution Amount and Uncertificated
REMIC I IO Regular Interest Distribution Amount, Realized Losses allocated to
the Certificates under Section 4.04 shall be allocated to the Uncertificated
REMIC I Regular Interests in the same amounts and priorities as allocated to the
Certificates in the corresponding numerical designation in 4.07(b) above.
(e) On each Distribution Date the Trustee shall be deemed to
distribute from REMIC II, in the priority set forth in Sections 4.01(a) and (b),
to the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class
A-7, Class A-8, Class A-9, Class A-10, Class A-11, Class A-12, Class A-13, Class
A-14, Class M-1, Class M-X, Class M-2, Class M-3, Class B-1, Class B-2, Class
B-3 and Class R-II Certificates the amounts distributable thereon, from the
Uncertificated REMIC I Regular Interest Distribution Amounts deemed to have been
received by REMIC II from REMIC I under this Section 4.07.
(f) Notwithstanding the deemed distributions on the Uncertificated
REMIC I Regular Interests described in this Section 4.07, distributions of funds
from the Certificate Account shall be made only in accordance with Section 4.01.
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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, B-1, B-2 and B-3. The Certificates will be
issuable in registered form only. The Class A and Class M-1 Certificates will be
issued in minimum denominations of $25,000 and integral multiples of $1 in
excess thereof. The Class M-X, Class M-2 and Class M-3 Certificates of each
Class will be offered in registered, certificated form in minimum denominations
of $250,000 and integral multiples of $1 in excess thereof. The Class B
Certificates of each Class will be offered in registered, certificated form in
minimum denominations of $250,000 and integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing the remainder of the
aggregate initial Certificate Principal Balance of such Class. The Residual
Certificates will each be issuable in minimum denominations of any Percentage
Interest representing 20.00% 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, Class M and Class B-1 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 Class A, Class M and Class B-1 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
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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 Senior Support Certificates, Class M Certificates or Class
B-1 Certificates (so long as they are Book-Entry Certificates), and the Trustee
shall have no liability for transfers of Senior Support Certificates, Class M
Certificates or Class B-1 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.
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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 Certif icates 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 B Certificate shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Act"), and any
applicable state securities laws or is made in accordance with said Act and
laws. In the event that a transfer of a Class B 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 B 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 B Certificates may be made pursuant to this Section 5.02(c) by
the Company. Notwithstanding the provisions of the immediately preceding two
sentences or clause (b) of this Section 5.02, no restrictions shall apply with
respect to the transfer or registration of transfer of a beneficial interest in
any Class B-1 Certificate that is a Book-Entry Certificate to a transferee that
takes delivery in the form of a beneficial interest in the Book-Entry
Certificate provided that each such transferee shall be deemed to have made such
representations and warranties contained
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in Exhibit G-3 hereto as are sufficient to establish that it is a "qualified
institutional buyer" as defined under Rule 144A. 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.
(d) The Trustee shall require an Opinion of Counsel from a prospective
transferee prior to the transfer of any Senior Support Certificate, Residual
Certificate, Class M Certificate or Class B Certificate to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and Keogh plans, that is subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code
(any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf
of any Plan, or to any other person who is using "plan assets" of any Plan to
effect such acquisition (including any insurance company using funds in its
general or separate accounts that may constitute "plan assets"). Such Opinion of
Counsel must establish to the satisfaction of the Trustee that such transfer is
permissible under applicable law, will not violate the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code, will not cause
the assets of the Trust Fund to constitute "plan assets" within the meaning of
29 C.F.R. ss.2510.3-101, 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.
In the case of the Class B Certificates, in lieu of such Opinion of
Counsel, the Trustee shall require a certification in the form of Exhibit G-6
(or in a form substantially similar to such Exhibit G-6 as shall be agreed upon
by the Trustee), in the case of the transfer of any of the foregoing Class B
Certificates to a person capable of providing such certification, substantially
to the effect that the purchase of such Certificate is permissible under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code, will not subject the
Company, the Trustee 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 this Agreement and the following conditions
are satisfied: (i) the transferee is an insurance company and the source of
funds used to purchase such Certificates is an "insurance company general
account" (as such term is defined in Prohibited Transaction Class Exemption
("PTCE") 95-60), (ii) the conditions set forth in Sections I and III of PTCE
95-60 have been satisfied and (iii) there is no Plan with respect to which the
amount of such general account's reserves and liabilities for contracts held by
or on behalf of such Plan and all other Plans maintained by the same employer
(or any "affiliate" thereof, as defined in PTCE 95-60) or by the same employee
organization exceeds 10% of the total of all reserves and liabilities of such
general account (as determined under PTCE 95-60) as of the date of the
acquisition of such Certificates; provided however that such certification will
not be required in connection with any transfer of any such Class B 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. The permission of any transfer
in violation
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of the restriction on transfer set forth in this paragraph shall not constitute
a default or an Event of Default.
In the case of the Senior Support Certificates, Class M Certificates
and Class B-1 Certificates no restrictions shall apply with respect to the
transfer or registration of transfer of a beneficial interest in any such Senior
Support Certificate, Class M Certificate or Class B-1 Certificate that is a
Book-Entry Certificate to a transferee that takes delivery in the form of a
beneficial interest in the Book-Entry Certificate; provided that each such
transferee shall be deemed to have represented that either: (i) such person is
not a Plan subject to ERISA or the Code (or comparable provisions of any
subsequent enactments) and is not acting, directly or indirectly, on behalf of
any such Plan or acquiring such Certificate with Plan Assets; or (ii) the
purchase of such Certificate is permissible under applicable law, will not
constitute or result in any non-exempt prohibited transaction under ERISA or
Section 4975 of the Code, will not subject the Company, the Trustee 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 this Agreement and the following conditions are satisfied: (i) the
transferee is an insurance company and the source of funds used to purchase such
Certificates is an "insurance company general account" (as such term is defined
in Prohibited Transaction Class Exemption ("PTCE") 95-60), (ii) the conditions
set forth in Sections I and III of PTCE 95-60 have been satisfied and (iii)
there is no Plan with respect to which the amount of such general account's
reserves and liabilities for contracts held by or on behalf of such Plan and all
other Plans maintained by the same employer (or any "affiliate" thereof, as
defined in PTCE 95-60) or by the same employee organization exceeds 10% of the
total of all reserves and liabilities of such general account (as determined
under PTCE 95-60) as of the date of the acquisition of such Certificates.
Notwithstanding the foregoing, the restrictions contained in the
immediately preceding paragraph shall no longer apply to the Senior Support
Certificates and the Class M Certificates if the Company or the Master Servicer
delivers to the Trustee an Officer's Certificate stating that amendments
proposed by the United States Department of Labor (the "DOL") to be made to
Prohibited Transaction Exemption 91-14, 56 Fed. Reg. 7,413 (December 5, 1990),
as amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997) and similar
exemptions have been published in final form substantially as proposed in the
DOL Exemption Application No. D-10809, 65 Fed. Reg. 51454 (August 23, 2000).
(e) (i) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee or its designee under clause (iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Residual Certificate are expressly subject to the following provisions:
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(A) Each Person holding or acquiring any Ownership Interest in a
Residual 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 Residual Certificate, the Trustee shall require delivery to it, and
shall not register the Transfer of any Residual 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 Residual 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 Residual 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 Residual 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 Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual 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 Residual 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
Residual 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 Residual Certificate, if it is "a pass-through
interest holder", or is holding an Ownership Interest in a Residual
Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual
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
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such registration. Transfers of the Residual Certificates other than to
Permitted Transferees are prohibited.
(iii) (A) If any Person other than a Permitted Transferee shall become
a Holder of a Residual 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 Residual Certificate. If a Non-United States Person shall become a Holder
of a Residual 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
Residual Certificate. If a transfer of a Residual 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 Residual
Certificate. The prior Holder shall be entitled to recover from any purported
Holder of a Residual 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 Residual Certificate. Each Holder of a Residual 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 Residual Certificates are not transferred to any Person who is not a
Permitted Transferee and that any transfer of such Residual Certificates will
not cause the imposition of a tax upon the Trust or cause any such REMIC to fail
to qualify as a REMIC. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Residual 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 Residual
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
Residual 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 Residual Certificate, to sell such
Residual 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 Residual 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 Residual Certificate as a
result of its exercise of such discretion.
(iv) 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 Residual Certificate to any Person who is a Disqualified
Organization, including the information regarding "excess inclusions" of such
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Residual 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 Residual Certificate having as among its record holders at any
time any Person who is a Disqualified Organization. The Trustee may charge and
shall be entitled to reasonable compensation for providing such information as
may be required from those Persons which may have had a tax imposed upon them as
specified in clauses (A) and (B) of this paragraph for providing such
information.
(f) Subject to the preceding paragraphs, upon surrender for
registration of transfer of any Certificate at the office of the Trustee
maintained for such purpose, the Trustee shall execute and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class of a like aggregate
Percentage Interest. Every Certificate surrendered for transfer shall be
accompanied by notification of the account of the designated transferee or
transferees for the purpose of receiving distributions pursuant to Section 4.01
by wire transfer, if any such transferee desires and is eligible for
distribution by wire transfer.
(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.
(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 Certi ficates.
(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
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payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The 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 B 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, consol idated 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
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misfeasance, bad faith or gross negligence in the performance of duties or by
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 lia bility 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 purchaser or transferee accepting
such assignment and delegation (a) shall be a Person which
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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
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continues unremedied for the earlier of (a) a period of two (2) Business
Days or (b) the Business Day immediately preceding the Distribution Date.
If an Event of Default described in clauses (i) - (v) of this Section shall
occur, then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Trustee 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 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 determines (in its sole
discretion) that the failure by the Master Servicer to make any required Advance
was due to circumstances beyond its control, and the required Advance was
otherwise made, the Trustee shall not terminate the Master Servicer. On or after
the receipt by the Master Servicer of such notice, all authority and power of
the Master Servicer under this Agreement, whether with respect to the
Certificates (other than as a holder thereof) or the Mortgage Loans or
otherwise, shall pass to and be vested in the Trustee pursuant to and under this
Section, and, without limitation, the Trustee is hereby authorized and empowered
to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise at the
expense of the Master Servicer. The Master Servicer agrees to cooperate with
(and pay any related costs and expenses of) the Trustee in effecting the
termination of the Master Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer to the Trustee or the successor
Master Servicer for administration by it of (i) the property and amounts which
are then or should be part of the Trust Fund or which thereafter become part of
the Trust Fund; (ii) originals or copies of all documents of the Master Servicer
reasonably requested by the Trustee to enable it to assume the Master Servicer's
duties thereunder; (iii) the rights and obligations of the Master Servicer under
the Sub-Servicing Agreements with respect to the Mortgage Loans; and (iv) all
cash amounts which shall at the time be deposited by the Master Servicer or
should have been deposited to the Custodial or the Certificate Account or
thereafter be received with respect to the Mortgage Loans. 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 assigned to
and working in the Trustee's corporate trust division has actual knowledge
thereof or unless notice of any event which is in fact such an Event of Default
is received by the Trustee and such notice references the Certificates, the
Trust Fund or this Agreement.
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SECTION 7.02. Trustee to Act; Appointment of Successor.
Within 90 days of the time the Master Servicer receives a notice of
termination pursuant to Section 7.01(i) - (v), the Trustee or its appointed
agent shall be the successor in all respects to the Master Servicer in its
capacity as Master Servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject thereafter to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer including the obligation to make Advances which have been or will be
required to be made (except for the responsibilities, duties and liabilities
contained in Section 2.03 and its obligations to deposit amounts in respect of
losses pursuant to Section 3.12 and 4.01(h)) by the terms and provisions hereof;
and provided further, that any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to provide information
required by Section 4.03 shall not be considered a default by the Trustee
hereunder. As compensation therefor, the Trustee shall be entitled to all funds
relating to the Mortgage Loans which the Master Servicer would have been
entitled to charge to the Custodial Account and the Certificate Account if the
Master Servicer had continued to act hereunder. If the Trustee has become the
successor to the Master Servicer in accordance with Section 6.04 or Section
7.02, then notwithstanding the above, if the Trustee shall be unwilling to so
act, or shall be unable to so act, the Trustee may appoint, or petition a court
of competent jurisdiction or appoint, any established housing and home finance
institution, which is also a 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, con sistent with this
Agreement, as shall be necessary to effectuate any such succession.
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 Servicing Fee or for any differential in the
amount of the Servicing Fee paid hereunder and the amount necessary to induce
any successor Master Servicer or Servicer, as applicable, to act as successor
Master Servicer or 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.
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(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 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 both REMIC I and
REMIC II 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 both REMIC I and REMIC II
under the REMIC Provisions and to prevent the imposition of any federal, state
or local income, prohibited transaction, contribution or other tax on either
REMIC I or REMIC II 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 obliga tions of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
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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 rely upon and shall be 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 reasonable security or indemnity 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 Office 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
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prudent man would exercise or use under the circumstances in the conduct of
his own affairs;
(d) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiver of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, state ment, 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 or
attorneys; and
(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.
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 and the
representations and warranties of the Trustee in Section 8.12) 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 (other than as specifically set forth
in Section 8.12) or of the Certificates (other than the signature and
authentication of the Trustee on the Certificates) or of any Mortgage Loan or
related document. The 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.
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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 Fees. 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 (except as otherwise reimbursed by the Seller pursuant
to a separate fee letter between the Seller and the Trustee) in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder or of the Trustee. Except as otherwise provided in
this Agreement, the Trustee and any director, officer, employee or agent of the
Trustee shall be indemnified and held harmless by the Trust Fund against any
claim, loss, liability, fee or expense incurred in connection with any Event of
Default, any breach of this Agreement or any claim or legal action (including
any pending or threatened claim or legal action) relating to the acceptance or
administration of its trusts hereunder or the 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.
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;
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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 a successor trustee is appointed and accepts appointment in
accordance with the following provisions. Upon receiving such notice of
resignation, the Master Servicer shall promptly appoint a successor trustee who
meets the eligibility requirements of Section 8.06 by written instrument, in
triplicate, one copy of which instrument shall be delivered to each of the
resigning Trustee and to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee;
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.
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 appoint a successor trustee who meets
the eligibility requirements of Section 8.06 by written instrument, in
triplicate, which instrument shall be delivered to the Trustee so removed and to
the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights, may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Certificateholders and the Company by the
Master Servicer.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Master Servicer and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or
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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 a successor trustee as provided in
this Section, the Master Servicer shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Master Servicer fails to mail such notice
within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Master Servicer.
SECTION 8.09. Merger or Consolidation of Trustee.
Any state bank or trust company or national banking association into
which the Trustee may be merged or converted or with which it may be
consolidated or any state bank or trust company or national banking association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any state bank or trust company or 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 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
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the terms of eligibility as a successor trustee under Section 8.06 hereunder and
no notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred or such
co-trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Fund or any portion thereof in any
such jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
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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
July 2033 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
either REMIC I or REMIC II as a REMIC. In the case of any repurchase by the
Master Servicer pursuant to clause (i), the Master Servicer shall include in
such repurchase price the amount of any Advances that will be reimbursed to the
Master Servicer pursuant to Section 3.11(iii) and 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 Master Servicer or its designee to repurchase all
Mortgage Loans pursuant to (i) above shall be conditioned upon the aggregate
Stated Principal Balance of such Mortgage Loans at the time of any such
repurchase aggregating an amount equal to or less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans at the Cut-off Date. If such
right is exercised, the Master Servicer upon such repurchase shall provide to
the Trustee, notice of such exercise prior to the Determination Date in the
month preceding the month of purchase and the certification required by Section
3.16.
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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 Determination Date in such month, in
each case specifying (i) the Distribution Date upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office of the Trustee therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates at the office of the Trustee therein specified. In the event
such notice is given in connection with the Master Servicer or its designee's
election to repurchase, the Master Servicer or its designee shall deliver to the
Trustee for deposit in the Certificate Account on the Business Day immediately
preceding the Distribution Date specified in such notice an amount equal to the
above-described repurchase price payable out of its own funds. Upon presentation
and surrender of the Certificates by the Certificateholders, the Trustee shall
first, pay itself the Trustee's Fees 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 Class A Certificate and Subordinate Certificate,
the outstanding Certificate Principal Balance thereof, plus one month's interest
thereon at the applicable Pass-Through Rate and any previously unpaid Accrued
Certificate Interest; and with respect to the Residual Certificates, the
Percentage Interest evidenced thereby multiplied by the difference, if any,
between the above de scribed repurchase price and the aggregate amount to be
distributed to the Holders of the Class A Certificates and Subordinate
Certificates, subject to the priorities set forth in Section 4.01(c). Upon
certification to the Trustee by a Servicing Officer, following such final
deposit, the Trustee 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.
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, 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 Residual Certificateholders
shall be entitled to all unclaimed funds and other assets which remain subject
hereto.
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(b) On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to ten percent of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date,
either the Master Servicer or the Company, whichever gives notice first, shall
have the right, at its option, to purchase the Certificates in whole, but not in
part, at a price equal to the outstanding Certificate Principal Balance of such
Certificates plus the sum of one month's Accrued Certificate Interest thereon
and any previously unpaid Accrued Certificate Interest.
The Master Servicer or the Company, as applicable, shall give the
Trustee not less than 60 days' prior notice of the Distribution Date on which
the Master Servicer or the Company, as applicable, anticipates that it will
purchase the Certificates pursuant to Section 9.01(b). Notice of any such
purchase, specifying the Distribution Date upon which the Holders may surrender
their Certificates to the Trustee for payment in accordance with this Section
9.01(b), shall be given promptly by the Master Servicer or the Company, as
applicable, by letter to Certificateholders (with a copy to the Trustee and each
Rating Agency) mailed not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of such final distribution,
specifying:
(i) the Distribution Date upon which purchase of the Certificates is
anticipated to be made upon presentation and surrender of such Certificates
at the office or agency of the Trustee therein designated,
(ii) the purchase price therefor, 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 or agency of the Trustee
therein specified.
If either the Master Servicer or the Company gives the notice specified above,
the Master Servicer or the Company, as applicable, shall deposit in the
Certificate Account before the Distribution Date on which the purchase pursuant
to Section 9.01(b) is to be made, in immediately available funds, an amount
equal to the purchase price for the Certificates computed as provided above.
Upon presentation and surrender of the Certificates to be purchased
pursuant to Section 9.01(b) by the Holders thereof, the Trustee shall first, pay
itself the Trustee's Fees for such Distribution Date and any other amounts owing
to the Trustee under this Agreement, and second, distribute to such Holders an
amount equal to the outstanding Certificate Principal Balance thereof plus the
sum of one month's Accrued Certificate Interest thereon and any previously
unpaid Accrued Certificate Interest with respect thereto.
In the event that any Certificateholders do not surrender their
Certificates on or before the Distribution Date on which a purchase pursuant to
this Section 9.01(b) is to be made, the Trustee shall on such date cause all
funds in the Certificate Account deposited therein by the Master Servicer or the
Company, as applicable, pursuant to this Section 9.01(b) to be withdrawn
therefrom and deposited in a separate escrow account for the benefit of such
Certificateholders, and the Master
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Servicer or the Company, as applicable, shall give a second written notice to
such Certificateholders to surrender their Certificates for payment of the
purchase price therefor. If within six months after the second notice any
Certificate shall not have been surrendered for cancellation, the Trustee shall
take appropriate steps as directed by the Master Servicer or the Company, as
applicable, to contact the Holders of such Certificates concerning surrender of
their Certificates. The costs and expenses of maintaining the escrow account and
of contacting Certificateholders shall be paid out of the assets which remain in
the escrow account. No interest shall accrue or be payable to any
Certificateholder on any amount held in the escrow account or by the Master
Servicer or the Company, as applicable, as a result of such Certificateholder's
failure to surrender its Certificate(s) for payment in accordance with this
Section 9.01. Any Certificate that is not surrendered on the Distribution Date
on which a purchase pursuant to this Section 9.01 occurs as provided above will
be deemed to have been purchased and the Holder as of such date will have no
rights with respect thereto except to receive the purchase price therefor minus
any costs and expenses associated with such escrow account and notices allocated
thereto. Any Certificates so purchased or deemed to have been purchased on such
Distribution Date shall remain outstanding hereunder. The Master Servicer or the
Company, as applicable, shall be for all purposes the Holder thereof as of such
date.
SECTION 9.02. Termination of REMIC II.
REMIC II 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 Uncertificated REMIC I Regular Interests and the last distribution due on
the Class A, Class M, Class B and Class R-II Certificates 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 re quirements, 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 I or REMIC II to fail to qualify as a REMIC at any time that any
Certificate is outstanding:
(i) The Master Servicer shall establish a 90-day liquidation period
for REMIC I and REMIC II, 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 Master Servicer also
shall satisfy all of the requirements of a qualified liquidation for REMIC
I and REMIC II, as the case may be, under Section 860F of the Code and
regulations thereunder;
(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
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Certificates, the Trustee shall sell or otherwise dispose of all of the
remaining assets of the Trust Fund in accordance with the terms hereof; and
(iii) If the Master Servicer or the Company is exercising its right to
purchase the assets of the Trust Fund, the Master Servicer shall, during
the 90-day liquidation period and at or prior to the Final Distribution
Date, purchase all of the assets of the Trust Fund for cash; PROVIDED,
HOWEVER, that in the event that a calendar quarter ends after the
commencement of the 90-day liquidation period but prior to the Final
Distribution Date, the Master Servicer or the Company shall not purchase
any of the assets of the Trust Fund prior to the close of that calendar
quarter.
(b) Each Holder of a Certificate and the Trustee hereby irrevocably
approves and appoints the Master Servicer as its attorney-in-fact to adopt a
plan of complete liquidation for REMIC I and REMIC II 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 two
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-I Certificates will constitute the sole class of
"residual interest" in REMIC I, and (ii) the Class R-II Certificates will
constitute the sole class of "residual interest" in REMIC II, and the
Certificates (other than the Class R Certificates) shall be designated as the
"regular interests" in REMIC II. 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 I or REMIC II other than the Uncertificated REMIC I Regular
Interests and the Class R-I Certificates and the REMIC II Certificates,
respectively. 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 I and
REMIC II.
(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 Residual 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 in
respect of the REMICs created hereunder. The expenses of preparing and filing
such returns shall be borne by the Trustee without any right of reimbursement
therefor. The Master Servicer shall provide on a timely basis to the Trustee or
its designee such information with respect to the assets of the REMICs as is in
its possession and reasonably required by the Trustee to enable it to perform
its obligations under this Article X.
(e) The Trustee shall perform on behalf of the REMICs all reporting
and other tax compliance duties that are the responsibility of the REMICs under
the Code, the REMIC
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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 Residual Certificate such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Person who is not a Permitted Transferee, (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 I or REMIC II as REMICs or (ii) result in the imposition of a tax upon the
REMICs (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code) (either such event, an "Adverse
REMIC Event") unless the Trustee has received an Opinion of Counsel, addressed
to the Trustee (at the expense of the party seeking to take such action but in
no event at the expense of the Trustee) to the effect that the contemplated
action will not, with respect to the REMICs created hereunder, endanger such
status or result in the imposition of such a tax, nor shall the Master Servicer
take or fail to take any action (whether or not authorized hereunder) as to
which the Trustee has advised it in writing that it has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action. In addition, prior to taking any action with respect to the REMICs
or the assets of the REMICs, or causing the REMICs to take any action, which is
not contemplated under the terms of this Agreement, the Master Servicer will
consult with the Trustee or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to the
Trust Fund, and the Master Servicer shall not take any such action or cause the
Trust Fund to take any such action as to which the Trustee has advised it in
writing that an Adverse REMIC Event could occur. The Trustee may consult with
counsel to make such written advice, and the cost of same shall be borne by the
party seeking to take the action not permitted by this Agreement, but in no
event shall such cost be an expense of the Trustee. At all times as may be
required by the Code, the Trustee will ensure that substantially all of the
assets of the REMICs created hereunder will consist of "qualified mortgages" as
defined in Section 860G(a)(3) of the Code and "permitted investments" as defined
in Section 860G(a)(5) of the Code.
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(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,
2001, 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 I or REMIC II to
fail to qualify as REMICs at any time that any Certificates are outstanding or
subject either REMIC I or REMIC II to any tax under the REMIC Provisions or
other applicable provisions of federal, state and local law or ordinances.
(k) Neither the Trustee nor the Master Servicer shall enter into any
arrangement by which the REMICs will receive a fee or other compensation for
services nor permit the REMICs to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02. Prohibited Transactions and Activities.
None of the 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 I or REMIC II 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
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Qualified Substitute Mortgage Loan delivered in accordance with Section 2.03),
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 I or REMIC II 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 ambigu ity, (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 it shall have first
received an Opinion of Counsel (provided by the Person requesting such
amendment) to the effect that such amendment will not result in the imposition
of any tax on either REMIC I or REMIC II pursuant to the REMIC
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Provisions or cause either REMIC I or REMIC II 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 counter parts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
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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 and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
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, 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; (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 Office, or such
other address as may hereafter be furnished to the other parties hereto in
writing; or (d) in the case of the Rating Agencies, Standard & Poor's, 55 Water
Street, 41st Floor, New York, NY 10041 Attention: Residential Mortgage
Surveillance
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Group, Fitch, Fitch, Inc., One State Street, 30th Floor, New York, New York
10004, Attention: Mortgage Backed Securities Department, Impac 2000-3 and
Moody's, Moody's Investors Service, Inc., ABS 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, provi sions 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; Third Party Beneficiary.
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 2.03;
5. The final payment to Certificateholders; and
6. Any change in the location of the Custodial Account or the
Certificate Account.
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In addition, the Trustee shall promptly furnish to the Rating Agency
copies of each report to Certificateholders described in Section 4.02; and the
Master Servicer shall promptly furnish to the Rating Agency copies of each
annual independent public accountants' servicing report received as described in
Section 3.20.
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 Fitch, Fitch, Inc., One State Street, 30th Floor, New York, New York
10004, Attention: Mortgage Backed Securities Department, Impac 2000-2, (ii) in
the case of Standard & Poor's, 55 Water Street, 41st Floor, New York, New York
10041, (iii) in the case of Moody's, ABS 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.
SECTION 11.10. No Petition
The Company, Master Servicer and the Trustee, by entering into this
Agreement and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the Trust
Fund, or join in any institution against the Trust Fund of, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations with respect to the Certificates or this
Agreement.
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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:_______________________________
Name: Richard J. Johnson
Title: Chief Financial Officer
IMPAC FUNDING CORPORATION,
Master Servicer
By:_______________________________
Name: Lisa A. Duehring
Title: Vice President
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.
Trustee
By:_______________________________
Name: Katherine M. Wannenmacher
Title: Vice President
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 28th day of September, 2000 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]
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 28th day of September, 2000 before me, a notary public in and
for said State, personally appeared Lisa A. Duehring, known to me to be a 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]
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 28th day of September, 2000, before me, a notary public in and
for said State, personally appeared Katherine Wannenmacher, known to me to be an
Assistant Vice President of Bankers Trust Company of California, N.A., the
corporation 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]
<PAGE>
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").
[ANY PERSON PURCHASING A CLASS A-11 CERTIFICATE, UNLESS THE TRUSTEE SHALL
HAVE RECEIVED AN OFFICER'S CERTIFICATE TO THE EFFECT THAT SUCH RESTRICTIONS NO
LONGER APPLY, SHALL BE DEEMED TO HAVE REPRESENTED THAT EITHER: (I) SUCH PERSON
IS NOT A PLAN SUBJECT TO ERISA OR THE CODE (OR COMPARABLE PROVISIONS OF ANY
SUBSEQUENT ENACTMENTS) AND IS NOT ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF
ANY SUCH PLAN OR ACQUIRING SUCH CERTIFICATE WITH PLAN ASSETS; OR (II) THE
PURCHASE OF SUCH CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT
CONSTITUTE OR RESULT IN ANY NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR
SECTION 4975 OF THE CODE, WILL NOT SUBJECT THE COMPANY, THE TRUSTEE 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 THIS AGREEMENT AND THE EXEMPTIVE RELIEF GRANTED BY THE DOL
PURSUANT TO PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 IS AVAILABLE WITH
RESPECT TO THE PURCHASE, SALE AND HOLDING OF SUCH CERTIFICATE.]
A-1
<PAGE>
Certificate No. __ [_____%] [Adjustable] [Variable] Pass-Through
Rate
Class A-__ Senior
Date of Pooling and Percentage Interest: ____%
Servicing Agreement
and Cut-off Date:
September 1, 2000
First Distribution Date: Aggregate Initial [Certificate Principal Balance]
October 25, 2000 [Notional Amount] of the Class A-__
Certificates: $____________
Master Servicer: Initial [Certificate Principal
Impac Funding Corporation Balance] [Notional Amount] of this Certificate:
$____________
Assumed Final CUSIP _________
Distribution Date:
October 25, 2030
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2000-3
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 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.
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] [Notional Amount] of this Certificate by the
aggregate Initial [Certificate Principal Balance] [Notional Amount] 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
conventional one- to four-family fixed-rate first lien mortgage loans (the
"Mortgage Loans"), formed and sold by Impac Secured Assets Corp.
A-2
<PAGE>
(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 Bankers Trust Company of California, 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] [Notional Amount] of this Certificate is set
forth above. The [Certificate Principal Balance] [Notional Amount] hereof will
be reduced to the extent of [distributions allocable to principal and] any
Realized Losses allocable hereto.
[Any person purchasing a Class A-11 Certificate, unless an Officer's
Certificate to the effect that such restrictions no longer apply has been
delivered to the Trustee in accordance with the Pooling and Servicing Agreement,
shall be deemed to have represented that either: (i) such person is not a Plan
subject to ERISA or the Code (or comparable provisions of any subsequent
enactments) and is not acting, directly or indirectly, on behalf of any such
Plan or acquiring such Certificate with Plan Assets; or (ii) the purchase of
such Certificate is permissible under applicable law, will not constitute or
result in any non-exempt prohibited transaction under ERISA or Section 4975 of
the Code, will not subject the Company, the Trustee 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 this Agreement and
the exemptive relief granted by the DOL pursuant to Prohibited
A-3
<PAGE>
Transaction Class Exemption 95-60 is available with respect to the purchase,
sale and holding of such Certificate.]
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
A-4
<PAGE>
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 Master Servicer or the Company 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 Master Servicer or the Company to (i) purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all
property acquired in respect of any Mortgage Loan or (ii) purchase in whole, but
not in part, all of the Certificates from the Holders thereof; provided, that
any such option may only be exercised if 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.
A-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 28, 2000 BANKERS TRUST COMPANY OF
CALIFORNIA, 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.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:_______________________________
Authorized Signatory
A-6
<PAGE>
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.
<PAGE>
EXHIBIT B-1
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, [THE CLASS M-1 CERTIFICATES] [, THE CLASS M-X CERTIFICATES][AND
THE CLASS M-2 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").
ANY PERSON PURCHASING A CLASS M CERTIFICATE, UNLESS THE TRUSTEE SHALL HAVE
RECEIVED AN OFFICER'S CERTIFICATE TO THE EFFECT THAT SUCH RESTRICTIONS NO LONGER
APPLY, SHALL BE DEEMED TO HAVE REPRESENTED THAT EITHER: (I) SUCH PERSON IS NOT A
PLAN SUBJECT TO ERISA OR THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT
ENACTMENTS) AND IS NOT ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH
PLAN OR ACQUIRING SUCH CERTIFICATE WITH PLAN ASSETS; OR (II) THE PURCHASE OF
SUCH CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN ANY NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF
THE CODE, WILL NOT SUBJECT THE COMPANY, THE TRUSTEE 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 THIS AGREEMENT AND
THE EXEMPTIVE RELIEF GRANTED BY THE DOL PURSUANT TO PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 IS AVAILABLE WITH RESPECT TO THE PURCHASE, SALE AND HOLDING OF
SUCH CERTIFICATE.
B-1-1
<PAGE>
Certificate No. __ ______% Pass-Through Rate
Class M-__ Subordinate Aggregate Initial [Certificate Principal
Balance][Notional Amount] of the Class
M-__ Certificates:
$_____________
Date of Pooling and Servicing Initial [Certificate Principal Balance]
Agreement and Cut-off Date: [Notional Amount] of this Certificate:
September 1, 2000 $_______________
First Distribution Date: CUSIP: ______________
October 25, 2000
Master Servicer:
Impac Funding Corporation
Assumed Final Distribution Date:
October 25, 2030
MORTGAGE PASS-THROUGH CERTIFICATE,
Series 2000-3
evidencing a percentage interest in any distributions allocable to the
Class M-__ Certificates with respect to the Trust Fund consisting
primarily of a pool of conforming one- to four-family 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.
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][Notional Amount] of this Certificate by the
aggregate Initial [Certificate Principal Balance][Notional Amount] of all Class
M-__ Certificates, both as specified above) in certain distributions with
respect to a Trust Fund consisting primarily of a pool of conforming one- to
four-family 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
B-1-2
<PAGE>
"Agreement") among the Company, the Master Servicer and Bankers Trust Company of
California, 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- __ 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][Notional Amount] of this Certificate is set
forth above. The [Certificate Principal Balance][Notional Amount] hereof will be
reduced to the extent of [the distributions allocable to principal and] any
Realized Losses allocable hereto.
Any person purchasing a Class M Certificate, unless an Officer's
Certificate to the effect that such restrictions no longer apply has been
delivered to the Trustee in accordance with the Pooling and Servicing Agreement,
shall be deemed to have represented that either: (i) such person is not a Plan
subject to ERISA or the Code (or comparable provisions of any subsequent
enactments) and is not acting, directly or indirectly, on behalf of any such
Plan or acquiring such Certificate with Plan Assets; or (ii) the purchase of
such Certificate is permissible under applicable law, will not constitute or
result in any non-exempt prohibited transaction under ERISA or Section 4975 of
the Code, will not subject the Company, the Trustee 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 this Agreement and
the exemptive relief granted by the DOL pursuant to Prohibited Transaction Class
Exemption 95-60 is available with respect to the purchase, sale and holding of
such Certificate.
B-1-3
<PAGE>
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.
B-1-4
<PAGE>
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 Master Servicer or the Company 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 Master Servicer or the Company to (i) purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all
property acquired in respect of any Mortgage Loan or (ii) purchase in whole, but
not in part, all of the Certificates from the Holders thereof; provided, that
any such option may only be exercised if 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-1-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 28, 2000 BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:_______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class M-__ Certificates referred to in the within-
mentioned Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:_______________________________
Authorized Signatory
B-1-6
<PAGE>
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.
B-1-7
<PAGE>
EXHIBIT B-2
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES [AND] THE CLASS M CERTIFICATES [,] [AND] [THE CLASS B-1
CERTIFICATES], [AND THE CLASS B-2 CERTIFICATES] AS DESCRIBED IN THE AGREEMENT
(AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
[NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(D) OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE
OF THIS CERTIFICATE 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 AGREEMENT.]
[ANY PERSON PURCHASING A CLASS B-1 CERTIFICATE SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER: (I) SUCH PERSON IS NOT A PLAN SUBJECT TO ERISA OR THE
CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND IS NOT ACTING,
DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ACQUIRING SUCH CERTIFICATE
WITH PLAN ASSETS; OR (II) THE PURCHASE OF SUCH CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY NON-EXEMPT PROHIBITED
TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE, WILL NOT SUBJECT THE
COMPANY, THE TRUSTEE 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 THIS AGREEMENT AND THE EXEMPTIVE RELIEF
GRANTED BY THE DOL PURSUANT TO PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 IS
AVAILABLE WITH RESPECT TO THE PURCHASE, SALE AND HOLDING OF SUCH CERTIFICATE.]
B-2-1
<PAGE>
Certificate No. __ _____ % Pass-Through Rate
Class B-__ Subordinate Aggregate Certificate Principal Balance
of the Class B-__ Certificates as of
Date of Pooling and Servicing the Cut-off Date:
Agreement and Cut-off Date: $_______________
September 1, 2000
Initial Certificate Principal
Balance of this Certificate:
First Distribution Date: $_______________
October 25, 2000
Master Servicer:
Impac Funding Corporation
Assumed Final Distribution Date:
October 25, 2030
MORTGAGE PASS-THROUGH CERTIFICATE,
Series 2000-3
evidencing a percentage interest in any distributions allocable to the
Class B-__ Certificates with respect to the Trust Fund consisting
primarily of a pool of conforming 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.
This certifies that ____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Certificate Principal Balance of this Certificate by the aggregate Certificate
Principal Balance of all Class 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 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 Bankers Trust Company of California, N.A., as
trustee (the
B-2-2
<PAGE>
"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 on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
next 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 B-__
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 and any Realized Losses allocable hereto.
No transfer of this Class B-__ Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee shall require an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee that such transfer is exempt
(describing the applicable exemption and the basis therefor) from or is being
made pursuant to the registration requirements of the Securities Act of 1933, as
amended, and of any applicable statute of any state and (ii) the transferee and
transferor shall execute a representation letter in the form described by the
Agreement. [Notwithstanding the previous sentence, no restrictions shall apply
with respect to the transfer or registration of transfer of a beneficial
interest in any Class B-1 Certificate that is a Book-Entry Certificate to a
transferee that takes delivery in the form of a beneficial interest in the
Book-Entry Certificate provided that each such transferee shall be deemed to
have made the representations and warranties contained in the representation
letter referred to in the previous sentence as are sufficient to establish that
it is a "qualified institutional buyer" as defined under Rule 144A.] The Holder
B-2-3
<PAGE>
hereof desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Company, the Master Servicer and the Certificate
Registrar acting on behalf of the Trustee 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. In connection with any such transfer, the Trustee will also
require either (i) an opinion of counsel acceptable to and in form and substance
satisfactory to the Trustee with respect to the permissibility of such transfer
under the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
and Section 4975 of the Internal Revenue Code (the "Code") and stating, among
other things, that the transferee's acquisition of a Class B Certificate will
not constitute or result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code or (ii) a representation letter, in the
form as described by the Agreement, either stating that the transferee is not an
employee benefit or other plan subject to the prohibited transaction provisions
of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including
an investment manager, a named fiduciary or a trustee of any Plan) acting,
directly or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any Plan, or stating that the transferee is an insurance company, the
source of funds to be used by it to purchase the Certificate is an "insurance
company general account" (within the meaning of Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60), and the purchase is being made in
reliance upon the availability of the exemptive relief afforded under Section
III of PTCE 95-60. [Notwithstanding the previous sentence, no restrictions shall
apply with respect to the transfer or registration of transfer of a beneficial
interest in any Class B-1 Certificate that is a Book-Entry Certificate to a
transferee that takes delivery in the form of a beneficial interest in the
Book-Entry Certificate provided that each such transferee shall be deemed to
have made such representations and warranties referred to in the previous
sentence.]
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
B-2-4
<PAGE>
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.
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 Master Servicer or the Company 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
B-2-5
<PAGE>
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 Master Servicer or the Company to (i)
purchase at a price determined as provided in the Agreement all remaining
Mortgage Loans and all property acquired in respect of any Mortgage Loan or (ii)
purchase in whole, but not in part, all of the Certificates from the Holders
thereof; provided, that any such option may only be exercised if 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-2-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 28, 2000 BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:_______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class B-__ Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:_______________________________
Authorized Signatory
B-2-7
<PAGE>
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.
B-2-1
<PAGE>
EXHIBIT B-3
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(E) OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE
COMPANY AND THE TRUSTEE 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").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER
SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE, (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREIN
REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL
CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR
<PAGE>
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-3-2
<PAGE>
Certificate No. __ ____% Pass-Through Rate
Class [R-I][R-II] Senior Aggregate Initial Certificate Principal
Balance of the Class [R-I][R-II]
Certificates: $______________
Date of Pooling and Servicing
Agreement and Cut-off Date:
September 1, 2000 Percentage Interest: _______%
First Distribution Date:
October 25, 2000 Initial Certificate Principal Balance
of this Certificate: $____________
Master Servicer:
Impac Funding Corporation CUSIP: _____________________
Assumed Final Distribution Date:
October 25, 2030
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-3
evidencing a percentage interest in any distributions allocable to the
Class [R-I][R-II] Certificates with respect to a Trust Fund consisting
primarily of a pool of conforming 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.
This certifies that _______________ 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 [R-I][R-II] 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 fixed-rate
first lien mortgage loans (the "Mortgage Loans"), formed and sold by Impac
Secured Assets Corp. (hereinafter called the "Company," which
B-3-3
<PAGE>
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
Bankers Trust Company of California, 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 [R- I][R-II] 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 and any Realized Losses allocable hereto.
Notwithstanding the reduction of the Certificate Principal Balance hereof to
zero, this Certificate will remain outstanding under the Agreement and the
Holder hereof may have additional obligations with respect to this Certificate,
including tax liabilities, and may be entitled to certain additional
distributions hereon, in accordance with the terms and provisions of the
Agreement.
Each Holder of this Certificate will be deemed to have agreed to be bound
by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
the Trustee of, among other things, an affidavit to the effect that it is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported
B-3-4
<PAGE>
transferee, and (iv) if any person other than a United States Person and a
Permitted Transferee acquires any Ownership Interest in this Certificate in
violation of such restrictions, then the Company will have the right, in its
sole discretion and without notice to the Holder of this Certificate, to sell
this Certificate to a purchaser selected by the Company, which purchaser may be
the Company, or any affiliate of the Company, on such terms and conditions as
the Company may choose.
In connection with any transfer of this Certificate, the Trustee will also
require either (i) an opinion of counsel acceptable to and in form and substance
satisfactory to the Trustee with respect to the permissibility of such transfer
under the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
and Section 4975 of the Internal Revenue Code (the "Code") and stating, among
other things, that the transferee's acquisition of a Class [R-I][R-II]
Certificate will not constitute or result in a non-exempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code or (ii) a representation
letter, in the form as described by the Agreement, stating that the transferee
is not an employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan.
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
B-3-5
<PAGE>
certain circumstances without the consent of the Holders of any of the
Certificates and, in certain additional circumstances, without the consent of
the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee, duly endorsed by, or accompanied
by an assignment in the form below or other written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The 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 Master Servicer or the Company 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 Master Servicer or the Company to (i) purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all
property acquired in respect of any Mortgage Loan or (ii) purchase in whole, but
not in part, all of the Certificates from the Holders thereof; provided, that
any such option may only be exercised if the aggregate Stated Principal Balance
of the Mortgage
B-3-6
<PAGE>
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-3-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 28, 2000 BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:_______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [R-I][R-II] Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:_______________________________
Authorized Signatory
B-3-8
<PAGE>
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.
B-3-9
<PAGE>
EXHIBIT C
FORM OF TRUSTEE'S INITIAL CERTIFICATION
September ___, 2000
Impac Funding Corporation
1401 Dove Street
Newport Beach, California 92660
Re: Pooling and Servicing Agreement, dated as of September 1, 2000
among Impac Secured Assets Corp., Impac Funding Corporation,
and Bankers Trust Company of California, N.A., Mortgage
Pass-Through Certificates, Series 2000-3
---------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, 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 been 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 (i), (ii), (iii) and
(iv) of the definition or description of "Mortgage Loan Schedule" is correct.
The Trustee 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 Trustee makes no
representation that any documents specified in clause (vi) of Section 2.01
should be included in any Mortgage File. The Trustee 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 Trustee.
C-1
<PAGE>
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.
By:_______________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D
FORM OF TRUSTEE FINAL CERTIFICATION
__________ ____, 2000
Impac Funding Corporation
1401 Dove Street
Newport Beach, California 92660
Re: Pooling and Servicing Agreement, dated as of September 1,
2000 among Impac Secured Assets Corp., Impac Funding
Corporation, and Bankers Trust Company of California, N.A.,
Mortgage Pass-Through Certificates, Series 2000-3
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, 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 Trustee 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 Trustee makes no
representation that any documents specified in clause (vi) of Section 2.01
should be included in any Mortgage File. The Trustee 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 Trustee.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.
By:_______________________________
Name:
Title:
D-1
<PAGE>
EXHIBIT E
FORM OF REMITTANCE REPORT
(Provided Upon Request)
<PAGE>
EXHIBIT F-1
REQUEST FOR RELEASE
(for Trustee)
LOAN INFORMATION
----------------
Name of Mortgagor: _____________________________
Master Servicer
Loan No.: _____________________________
TRUSTEE
-------
Name: _____________________________
Address: _____________________________
_____________________________
Trustee
Mortgage File No.: _____________________________
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.)
F-1-1
<PAGE>
5. Other (explain).
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The undersigned Master Servicer hereby acknowledges that it has
received from the Trustee for the Holders of Mortgage Pass-Through Certificates,
Series 2000-3, 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
September 1, 2000 (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 Recorder's 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-1-2
<PAGE>
( ) _________________________________
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-1-3
<PAGE>
EXHIBIT F-2
REQUEST FOR RELEASE
[Mortgage Loans Paid in Full]
OFFICER'S CERTIFICATE AND TRUST RECEIPT
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-3
______________________________________ 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:_____________________
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-2-1
<PAGE>
EXHIBIT G-1
FORM OF INVESTOR REPRESENTATION LETTER
__________, 200___
Impac Secured Assets Corp.
1401 Dove Street
Newport Beach, California 92660
Bankers Trust Company of California, N.A.
1761 East St. Andrew Place
Santa Ana, California 92705
Attention: Impac Secured Assets Corp. Series 2000-3
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 2000-3, Class ___
------------------------------------------------------------
Ladies and Gentlemen:
__________ (the "Purchaser") intends to purchase from __________ (the
"Seller") $__________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 2000-3, Class ____ (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of September 1, 2000 among Impac Secured Assets
Corp., as company (the "Company"), Impac Funding Corporation, as master servicer
and Bankers Trust Company of California, 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.
G-1-1
<PAGE>
2. The Purchaser is acquiring the Certificates for its own
account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
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 Private Placement Memorandum,
dated September 28, 2000, relating to the Certificates (b)] a copy of
the Pooling and Servicing Agreement and [(b)] [(c)] 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. [If the Purchaser did not purchase the Certificates
from the Seller in connection with the initial distribution of the
Certificates and was provided with a copy of the Private Placement
Memorandum (the "Memorandum") relating to the original sale (the
"Original Sale") of the Certificates by the Company, the Purchaser
acknowledges that such Memorandum was provided to it by the Seller,
that the Memorandum was prepared by the Company solely for use in
connection with the Original Sale and the Company did not participate
in or facilitate in any way the purchase of the Certificates by the
Purchaser from the Seller, and the Purchaser agrees that it will look
solely to the Seller and not to the Company with respect to any
damage, liability, claim or expense arising out of, resulting from or
in connection with (a) error or omission, or alleged error or
omission, contained in the Memorandum, or (b) any information,
development or event arising after the date of the Memorandum.]
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,
G-1-2
<PAGE>
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.
[6. The Purchaser
(a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code") (a "Plan"), or
any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of
or purchasing any Certificate with "plan assets" of any Plan within
the meaning of the Department of Labor ("DOL") regulation at 29 C.F.R.
ss.2510.3-101; or
(b) is an insurance company, the source of funds to be used
by it to purchase the Certificates is an "insurance company general
account" (within the meaning of DOL Prohibited Transaction Class
Exemption ("PTCE") 95-60), and the purchase is being made in reliance
upon the availability of the exemptive relief afforded under Sections
I and III of PTCE 95-60; or
(c) has provided the Trustee, the Company and the Master
Servicer with an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee, the Company and the Master
Servicer 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 Purchaser hereby certifies, represents and warrants
to, and covenants with, the Company, the Trustee and the Master Servicer that
the Purchaser will not transfer such Certificates to any Plan or person unless
either such Plan or person meets the requirements set forth in either (a), (b)
or (c) above.
Very truly yours,
___________________________________
(Purchaser)
By:________________________________
G-1-3
<PAGE>
Name:______________________________
Title:_____________________________
G-1-4
<PAGE>
EXHIBIT G-2
FORM OF TRANSFEROR REPRESENTATION LETTER
__________, 200___
Impac Secured Assets Corp.
1401 Dove Street
Newport Beach, California 92660
Bankers Trust Company of California, N.A.
1761 East St. Andrew Place
Santa Ana, California 92705
Attention: Impac Secured Assets Corp. Series 2000-3
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 2000-3, 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 2000-3, Class ____ (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of September 1, 2000 among Impac Secured Assets
Corp., as company (the "Company"), Impac Funding Corporation, as master servicer
and Bankers Trust Company of California, 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
G-2-1
<PAGE>
foregoing sentence with respect to any Certificate. The Seller has not and will
not sell or otherwise transfer any of the Certificates, except in compliance
with the provisions of the Pooling and Servicing Agreement.
Very truly yours,
____________________________________________
(Seller)
By:_________________________________________
Name:_______________________________________
Title:______________________________________
G-2-2
<PAGE>
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 2000-3, 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
<PAGE>
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 144A 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 144A 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's
purchase of the Rule 144A Securities will not result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code.
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
<PAGE>
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
<PAGE>
ANNEX 1 TO EXHIBIT G-3
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested
on a discretionary basis $_____________________/1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ BANK. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statement, a copy of which is attached
hereto.
___ SAVINGS AND LOAN. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements.
------------------------
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000
in Securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
G-3-4
<PAGE>
___ 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 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
G-3-5
<PAGE>
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the
Buyer is not itself a reporting company under the Securities Exchange Act of
1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at the
time is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
_________________________________________
Print Name of Buyer
By:______________________________________
Name:
Title:
Date:____________________________________
G-3-6
<PAGE>
ANNEX 2 TO EXHIBIT G-3
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
____ The Buyer owned $___________________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
G-3-7
<PAGE>
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
____________________________________________
Print Name of Buyer
By: ________________________________________
Name:
Title:
IF AN ADVISER:
____________________________________________
Print Name of Buyer
Date:_______________________________________
G-3-8
<PAGE>
EXHIBIT G-4
FORM OF TRANSFEROR CERTIFICATE
___________________, 200__
Impac Secured Assets Corp.
1401 Dove Street
Newport Beach, California 92660
Bankers Trust Company of California, N.A.
1761 East St. Andrew Place
Santa Ana, California 92705
Attention: Impac Secured Assets Corp. Series 2000-3
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates
Series 2000-3, Class __
----------------------------------------------
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 2000-3, Class R-I and Class R-II (the "Certificates"),
issued pursuant to Section 5.02 of the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of September 1, 2000, among Impac
Secured Assets Corp., as company (the "Company"), Impac Funding Corporation, as
master servicer and Bankers Trust Company of California, 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 Regulations Section 1.860E-
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<PAGE>
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
<PAGE>
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-I and Class R-II Certificates (together, the "Class R
Certificates") on behalf of which he/she makes this affidavit and agreement).
This Class R-I and Class R-II Certificate was issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") dated as of
September 1, 2000 among Impac Secured Assets Corp., as company, Impac Funding
Corporation, as master servicer (the "Master Servicer"), and Bankers Trust
Company of California, 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 Certificates, and
(iii) is acquiring the Class R Certificates for its own account or for the
account of another Owner from which it has received an affidavit and agreement
in substantially the same form as this affidavit and agreement. (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for 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 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
G-5-1
<PAGE>
disqualified organization and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that the Class R
Certificates may be "noneconomic residual interests" within the meaning of
Treasury regulations promulgated pursuant to the Code and that the transferor of
a noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class R Certificates if at any time during the taxable year of
the pass-through entity a disqualified organization is the record holder of an
interest in such entity. (For this purpose, a "pass through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the
transfer of any Class R Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner expressly
agrees that it will not consummate any such transfer if it knows or believes
that any of the representations contained in such affidavit and agreement are
false.
6. That the Owner has reviewed the restrictions set forth on the face
of the Class R Certificates and the provisions of Section 5.02(f) of the Pooling
and Servicing Agreement under which the Class R Certificates were issued (in
particular, clause (iii)(A) and (iii)(B) of Section 5.02(f) which authorize the
Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event the Owner holds such Certificates in
violation of Section 5.02(f)). The Owner expressly agrees to be bound by and to
comply with such restrictions and provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is not a disqualified
organization.
8. The Owner's Taxpayer Identification Number is ______________.
9. This affidavit and agreement relates only to the Class R
Certificates held by the Owner and not to any other holder of the Class R
Certificates. The Owner understands that the liabilities described herein relate
only to the Class R Certificates.
10. That no purpose of the Owner relating to the transfer of any of
the Class R Certificates by the Owner is or will be to impede the assessment or
collection of any tax.
11. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this
G-5-2
<PAGE>
regard, the Owner hereby represents to and for the benefit of the person from
whom it acquired the Class R Certificate that the Owner intends to pay taxes
associated with holding such Class R Certificate as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Class R Certificate.
12. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Class R Certificates remain outstanding.
13. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, provided that
with respect to any partnership or other entity treated as a partnership for
United States federal income tax purposes, all persons that own an interest in
such partnership either directly or through any entity that is not a corporation
for United States federal income tax purposes are required by the applicable
operative agreement to be United States Persons, or an estate or trust whose
income from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States.
14. (a) The Certificates (i) are not being acquired by, and will not
be transferred to, any employee benefit plan within the meaning of section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
other retirement arrangement, including individual retirement accounts and
annuities, 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 Section 406 of 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, the Company and the Master
Servicer with an opinion of counsel acceptable to and in form and substance
satisfactory to the Trustee, the Company and the Master Servicer 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.
G-5-3
<PAGE>
Capitalized terms used but not defined herein shall have the meanings
assigned in the Pooling and Servicing Agreement.
G-5-4
<PAGE>
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__.
<PAGE>
EXHIBIT G-6
FORM OF INVESTOR REPRESENTATION LETTER FOR INSURANCE COMPANIES
________, 200__
Impac Secured Assets Corp.
1401 Dove Street
Newport Beach, California 92660
Bankers Trust Company of California, N.A.
1761 East St. Andrew Place
Santa Ana, California 92705
Attention: Impac Secured Assets Corp. Series 2000-3
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 2000-3, Class ___
------------------------------------------------------------
Ladies and Gentlemen:
_______________ (the "Purchaser") intends to purchase from __________
(the "Seller") $____________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 2000-3, Class __ (the "Certificate"), issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of September 1, 2000, among Impac Secured Assets Corp., as
company (the "Company"), Impac Funding Corporation, as master servicer and
Bankers Trust Company of California, 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 Certificates purchased pursuant hereto will not be
transferred to any employee benefit plan or other retirement
arrangement including individual retirement accounts and Keogh plans
that is subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or Section 4975 of the
Internal Revenue Code of 1986 (the "Code") (any of the foregoing, a
"Plan").
G-6-1
<PAGE>
2. The Purchaser is an insurance company and the source of funds
used to purchase the Certificates is an "insurance company general
account" (as such term is defined in Prohibited Transaction Class
Exemption 95-60 issued by the U.S. Department of Labor ("PTCE 95-60")
and there is no plan with respect to which the amount of such general
account's reserves and liabilities for the contract(s) held by or on
behalf of such Plan and all other plans maintained by the same
employer (or affiliate thereof as defined in PTCE 95-60) or by the
same employee organization, exceed 10% of the total of all reserves
and liabilities of such general account (as such amounts are
determined under PTCE 95-60) as of the date of acquisition of such
Certificates.
Very truly yours,
_________________________________________
(Purchaser)
By:______________________________________
Name:____________________________
Title:___________________________________
G-6-2
<PAGE>
EXHIBIT H
MORTGAGE LOAN SCHEDULE
(Provided Upon Request)
<PAGE>
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 Officers' 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;
I-1
<PAGE>
(v) each Mortgage is a valid and enforceable first lien on the
property securing the related Mortgage Note and each Mortgaged
Property is owned by the Mortgagor in fee simple (except with respect
to common areas in the case of condominiums, PUDs and DE MINIMIS PUDs)
or by leasehold for a term longer than the term of the related
Mortgage, subject only to (i) the lien of current real property taxes
and assessments, (ii) covenants, conditions and restrictions, rights
of way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions being acceptable to
mortgage lending institutions generally or specifically reflected in
the appraisal obtained in connection with the origination of the
related Mortgage Loan or referred to in the lender's title insurance
policy delivered to the originator of the related Mortgage Loan and
(iii) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by such Mortgage;
(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 cover 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) to the best of Seller's knowledge, each Mortgage Loan at the time
it was made complied in all material respects with applicable state
and federal laws, including, without limitation, usury, equal credit
opportunity and disclosure laws; and each Mortgage Loan is being
serviced in all material respects in accordance with applicable
I-2
<PAGE>
state and federal laws, including, without limitation, usury, equal
credit opportunity and disclosure laws;
(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 97.00%; (ii) except with respect to approximately
0.51% of the Mortgage Loans (by aggregate outstanding principal
balance as of the Cut-off Date), each Mortgage Loan with a
Loan-to-Value Ratio at origination in excess of 80.00% will be insured
by one of the following: (i) a Primary Insurance Policy issued by a
private mortgage insurer, (ii) the Radian PMI Pool Policy or (iii) 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 20.00% 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 25.00% of the Allowable Claim.
The Radian PMI Pool Policy will insure against default under each
insured Mortgage Note related to a covered Mortgage Loan originated
pursuant to the Seller's "Progressive Express(TM)" program as follows:
(A) for which the outstanding principal balance at origination of such
Mortgage Loan is at least 80.01% and up to and including 89.99% of the
lesser of the Appraised Value and the sales price, such Mortgage
I-3
<PAGE>
Loan is covered by such Radian PMI Pool Policy in an amount equal to
at least 22.00% of the Allowable Claim and (B) for which the
outstanding principal balance at origination of such Mortgage Loan is
at least 90.00% 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 PMI Pool 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: (A) for which the outstanding principal
balance at origination of such Mortgage Loan is at least 80.01% and up
to and including 89.99% 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, (B) for which the outstanding principal balance at origination
of such Mortgage Loan is at least 90.00% 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 30.00% of the Allowable Claim and (C) 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 PMI
Pool Policy is the current principal balance of such Mortgage Loan
plus accrued interest and allowable expenses at the time of the claim;
(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 95.69% 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
I-4
<PAGE>
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' 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 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
I-5
<PAGE>
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;
(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;
I-6
<PAGE>
(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) except with respect to 3.46% of the Mortgage Loans (by
aggregate principal balance) which provide for a balloon payment, each
Mortgage Note contains provisions providing for its full amortization
by the end of its original term and is payable on the first day of
each month in monthly installments of principal and interest, with
interest payable in arrears, over an original term of not more than 30
years;
(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 7.750% per annum and not more than 13.875% per
annum, and the weighted average Mortgage Rate of the Mortgage Loans
was approximately 10.135% per annum;
(xxxiv) measured by principal balance, no more than 6.97% of the
Mortgage Loans are secured by an individual unit in a condominium
project or hi-rise, and at least 87.31% 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 71 months and not more
than 360 months;
(xxxvi) as of the Cut-off Date, no more than 9.43% (by aggregate
principal balance) of the Mortgage Loans are cash-out refinances;
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<PAGE>
(xxxvii) as of the Cut-off Date, no more than 5.43% (by aggregate
principal balance) of the Mortgage Loans are rate and term refinances;
(xxxviii) as of the Cut-off Date, no fewer than 83.92% (by
aggregate principal balance) of the Mortgage Loans are purchase money
loans;
(xxxix) as of the Cut-off Date, no more than 26.84% and 17.58% 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 $28,000 to approximately
$606,000, and the average unpaid principal balance is $143,237.
(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 95.69% of
the Mortgaged Properties are owner occupied primary residences, no
more than 2.16% of the Mortgaged Properties are second homes and no
more than 2.14% of the Mortgaged Properties are investor owned
properties;
(xlii) as of the Cut-off Date, no more than 0.03% 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; and
(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.
I-8
<PAGE>
EXHIBIT J
FORM OF NOTICE UNDER SECTION 3.25 OF POOLING AND SERVICING AGREEMENT
September 28, 2000
Bankers Trust Company of California, N.A.
1761 East St. Andrew Place
Santa Ana, California 92705
Re: Impac Secured Assets Corp.
Mortgage Pass-Through Certificates
Series 2000-3
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Pursuant to Section 3.25 of the Pooling and Servicing Agreement, dated
as of September 1, 2000, 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 2000-3 consisted of a Prepayment
Assumption (the "Prepayment Assumption") of 100% 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 Credit
Suisse First Boston Corporation (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 September 28, 2000; (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 Underwriter for all the Certificates purchased
by it; and (5) for each Class of Certificates, dividing the product obtained
from such Class of Certificates in clause (4) by the initial Certificate
Principal Balance or Notional Amount of such
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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 2000-3
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Class A-1: ____________________
Class A-2: ____________________
Class A-3: ____________________
Class A-4: ____________________
Class A-5: ____________________
Class A-6: ____________________
Class A-7: ____________________
Class A-8: ____________________
Class A-9: ____________________
Class A-10: ____________________
Class A-11: ____________________
Class A-12: ____________________
Class A-13: ____________________
Class A-14: ____________________
Class R-I: ____________________
Class R-II: ____________________
Class M-1: ____________________
Class M-X: ____________________
Class M-2: ____________________
Class M-3: ____________________
Class B-1: ____________________
Class B-2: ____________________
Class B-3: ____________________
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:
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EXHIBIT K
IMPAC SERVICING GUIDE
(Provided Upon Request)
