SERVICING AGREEMENT Dated as of ______ __, 200_ between IMPAC FUNDING CORPORATION, and [NAME OF SERVICER],
Dated
as
of ______ __, 200_
between
IMPAC
FUNDING CORPORATION,
“Master
Servicer”
and
[NAME
OF
SERVICER],
“Servicer”
TABLE
OF CONTENTS
|
ARTICLE
I
|
|
|
DEFINITIONS
|
|
|
Section
1.01
|
Defined
Terms.
|
|
ARTICLE
II
|
|
|
RETENTION
AND AUTHORITY OF SERVICER
|
|
|
Section
2.01
|
Engagement;
Servicing Standard.
|
|
Section
2.02
|
Subservicing.
|
|
Section
2.03
|
Authority
of the Servicer.
|
|
ARTICLE
III
|
|
|
SERVICES
TO BE PERFORMED
|
|
|
Section
3.01
|
Services
as Loan Servicer.
|
|
Section
3.02
|
Escrow
Accounts; Collection of Taxes, Assessments and Similar
Items.
|
|
Section
3.03
|
Collection
Accounts.
|
|
Section
3.04
|
Permitted
Investments.
|
|
Section
3.05
|
Maintenance
of Insurance Policies.
|
|
Section
3.06
|
Delivery
and Possession of Servicing Files.
|
|
Section
3.07
|
Inspections.
|
|
Section
3.08
|
“Due-on-Sale”
Clauses; Assumption Agreements.
|
|
Section
3.09
|
Realization
Upon Mortgaged Properties.
|
|
Section
3.10
|
Sale
of Specially Serviced Mortgage Loans and REO
Properties.
|
|
Section
3.11
|
Management
of REO Property.
|
|
Section
3.12
|
Modifications,
Waivers, Amendments and Consents.
|
|
ARTICLE
IV
|
|
|
STATEMENTS
AND REPORTS
|
|
|
Section
4.01
|
Reporting
by the Servicer.
|
|
Section
4.02
|
Annual
Statements of Compliance
|
|
Section
4.03
|
Assessments
of Compliance and Attestation Reports
|
|
Section
4.04
|
Exchange
Act Reporting.
|
|
ARTICLE
V
|
|
|
SERVICER’S
COMPENSATION AND EXPENSES
|
|
|
Section
5.01
|
Servicing
Compensation.
|
|
Section
5.02
|
Servicing
Advances and Advances.
|
|
ARTICLE
VI
|
|
|
THE
SERVICER AND THE MASTER SERVICER
|
|
|
Section
6.01
|
Servicer
Not to Assign; Merger or Consolidation of the Servicer.
|
|
Section
6.02
|
Liability
and Indemnification of the Servicer and the Master
Servicer.
|
|
ARTICLE
VII
|
|
|
REPRESENTATIONS
AND WARRANTIES; DEFAULT
|
|
|
Section
7.01
|
Representations
and Warranties.
|
|
Section
7.02
|
Events
of Default.
|
|
ARTICLE
VIII
|
|
|
TERMINATION;
TRANSFER OF MORTGAGE LOANS
|
|
|
Section
8.01
|
Termination
of Agreement.
|
|
ARTICLE
IX
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
Section
9.01
|
Amendment;
Waiver.
|
|
Section
9.02
|
Governing
Law.
|
|
Section
9.03
|
Notices.
|
|
Section
9.04
|
Severability
of Provisions.
|
|
Section
9.05
|
Inspection
and Audit Rights.
|
|
Section
9.06
|
Binding
Effect; No Partnership; Counterparts.
|
|
Section
9.07
|
Protection
of Confidential Information; No Solicitation.
|
|
Section
9.08
|
General
Interpretive Principles.
|
|
Section
9.09
|
Further
Agreements.
|
EXHIBIT
A: Servicing File Listing
EXHIBIT
B: Servicing Criteria to be Addressed in Assessment of Compliance
EXHIBIT
C: Form 10-D, Form 8-K And Form 10-K Reporting Responsibility
THIS
SERVICING AGREEMENT dated as of _____ __, 200_, is between IMPAC Funding
Corporation, a California corporation (the “Master Servicer”), and
_______________, a _________________ (the “Servicer”).
PRELIMINARY
STATEMENT
Pursuant
to the Pooling and Servicing Agreement (the “PSA”) dated as of _____ __, 200_,
among __________, as Depositor, the Master Servicer, as Master Servicer, and
Deutsche __________, as Trustee, with respect to the IMPAC Secured Assets Corp.
Mortgage Pass-Through Certificates, Series 200_-_ (a copy of which has been
delivered to the Servicer), the Servicer shall be servicing the Mortgage Loans
on behalf of the Trust Fund.
The
Master Servicer and the Servicer desire to enter into an agreement whereby
the
Servicer assumes and agrees to perform certain of the Master Servicer’s
servicing responsibilities with respect to the Mortgage Loans as more
specifically set forth herein.
The
Servicer is an independent contractor in the business of servicing mortgage
loans, and is not an Affiliate of the Master Servicer.
This
Agreement shall become effective with respect to each Mortgage Loan, or
appropriate group or portfolio of Mortgage Loans, upon the related Servicing
Transfer Date.
NOW,
THEREFORE, in consideration of the recitals in this Preliminary Statement which
are made a contractual part hereof, and of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
For
purposes of this Agreement, all capitalized terms not otherwise defined herein
shall have the meanings set forth in the PSA. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
“Accepted
Servicing Practices”:
As
defined in Section 2.01.
“Accounts”:
The
Escrow Accounts, REO Accounts and the Collection Accounts.
“Additional
Servicing Compensation”:
(i)
amounts collected for checks or other items returned for insufficient funds,
(ii) late payment charges (but not default interest) with respect to the
Mortgage Loans, excluding any prepayment penalties (iii) to the extent the
Servicer has been engaged by the Master Servicer under Section 3.08 or 3.12,
any
modification fees, extension fees, assumption fees and similar processing fees
received from or on behalf of any Borrower, (iv) subject to Section 3.04 of
the
Agreement, all income and gain realized from the investment of funds deposited
in the Accounts, and (v) any Termination Fees.
“Advance”:
As to
any Mortgage Loan, any advance made by the Servicer pursuant to Section 5.02.
“Advance
Interest”:
Interest at the Advance Rate on the aggregate amount of Advances for which
the
Servicer has not been reimbursed.
“Advance
Rate”:
A per
annum rate equal to the “Prime Rate” (as published from time to time in the
“Money Rates” section of The Wall Street Journal).
“Affiliate”:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
“Agreement”:
This
Servicing Agreement, as the same may be modified, supplemented or amended from
time to time upon mutual agreement of the parties hereto.
“Borrower”:
The
obligor on a Note.
“Business
Day”:
With
respect to any Mortgage Loan prior to Securitization, any day other than (i)
a
Saturday or Sunday, or (ii) a day in which depository institutions or trust
companies in the State of Kansas, the State of Pennsylvania or in any of the
States in which the Accounts or any accounts used by the Master Servicer for
remittance purposes are located, are authorized or obligated by law, regulation
or executive order to remain closed, and with respect to any Mortgage Loan
after
Securitization, any day other than (i) a Saturday or Sunday, or (ii) a day
in
which depository institutions or trust companies in the State New York or in
any
of the States in which the Accounts or any accounts used by the Master Servicer
for remittance purposes are located, are authorized or obligated by law,
regulation or executive order to remain closed.
“Certificates”:
The
Impac Secured Assets Corp., Mortgage Pass Through Certificates, Series 200_-_,
evidencing the beneficial ownership interest in the Depositor and executed
by
the Trustee in substantially the form set forth in Exhibit A to the
PSA.
“Closing
Date”:
_____
__, 200_.
“Collection
Account”:
As
defined in Section 3.03.
“Corrected
Mortgage Loan”:
Any
Mortgage Loan which is no longer a Specially Serviced Mortgage Loan pursuant
to
the second sentence of the definition of “Specially Serviced Mortgage
Loan”.
“Determination
Date”:
The
15th day (or if such day is not a Business Day, the Business Day immediately
preceding such day) of the month, beginning on _____ __, 200_.
“Disposition
Fee”:
In
connection with the sale of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.10, the fee payable to the Servicer in an amount equal
to
the product of (x) the related Net Liquidation Proceeds and (y) 1.50%;
provided,
however,
that
such fee shall not exceed $100,000 for each Mortgage Loan.
“Eligible
Account”:
Any of
(i) a segregated account maintained with a federal or state chartered depository
institution (A) the short-term obligations of which are rated A-1+ or better
by
Standard & Poor's and P-1 by Moody's at the time of any deposit therein or
if such account is maintained with PNC Bank, National Association, rated no
less
than A-1 by Standard & Poor’s and no less than P-1 by Moody’s or (B) insured
by the FDIC (to the limits established by such Corporation), the uninsured
deposits in which account are otherwise secured such that, as evidenced by
an
Opinion of Counsel (obtained by the Person requesting that the account be held
pursuant to this clause (ii)) delivered to the Trustee prior to the
establishment of such account, the Certificateholders will have a claim with
respect to the funds in such account and a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments, each of which shall mature not later than the Business Day
immediately preceding the Distribution Date next following the date of
investment in such collateral or the Distribution Date if such Permitted
Investment is an obligation of the institution that maintains the Certificate
Account, Insurance Account or Custodial Account) securing such funds that is
superior to claims of any other depositors or general creditors of the
depository institution with which such account is maintained, (ii) a segregated
trust account or accounts maintained with a federal or state chartered
depository institution or trust company subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), which, in either case, has corporate trust powers,
acting in its fiduciary capacity or (iii) a segregated account or accounts
of a
depository institution acceptable to the Rating Agencies (as evidenced in
writing by the Rating Agencies that use of any such account as the Custodial
Account or the Certificate Account will not have an adverse effect on the
then-current ratings assigned to the Classes of the Certificates then rated
by
the Rating Agencies). Eligible Accounts may bear interest.
“Environmental
Laws”:
Any
environmental law, ordinance, rule, regulation or order of a federal, state
or
local governmental authority, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
(42
U.S.C. §§ 9601 et
seq.),
the
Hazardous Material Transportation Act, as amended (49 U.S.C. §§ 1801
et
seq.),
the
Resource Conservation and Recovery Act, as amended (42 U.S.C. §§ 6901
et
seq.),
the
Federal Water Pollution Control Act, as amended (33 U.S.C. §§ 1251 et
seq.),
the
Clean Air Act (42 U.S.C. §§ 7401 et
seq.)
and
the regulations promulgated pursuant thereto.
“Escrow
Account”:
As
defined in Section 3.02.
“Escrow
Payment”:
Any
payment received by the Servicer for the account of the Borrowers for
application toward the payment of taxes, insurance premiums, assessments, ground
rents, deferred maintenance, environmental remediation, rehabilitation costs,
capital expenditures, and similar items in respect of the related Mortgaged
Property.
“Event
of Default”:
As
defined in Section 7.02.
“Excess
Servicing Strip”:
The
excess of the Servicing Fee Rate over [___]% ([__] basis points) per
annum.
“Loan
Servicing”:
As
defined in Section 3.01.
“Master
Servicer”:
IMPAC
Funding Corporation, a California corporation.
“Monthly
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of interest or
the
scheduled monthly payment of principal and interest, as the case may be, on
such
Mortgage Loan which is payable by a Borrower on the due date under the related
Note.
“Mortgage”:
With
respect to each Mortgage Loan, the mortgage, deed of trust or other instrument
securing the related Note, which creates a lien on the real property securing
such Note.
“Mortgage
Loan”:
Each
of the mortgage loans identified on the Mortgage Loan Schedule.
“Mortgage
Loan Documents”:
With
respect to each Mortgage Loan, the related Note, the related Mortgage and any
and all other documents executed and delivered in connection with the
origination or subsequent modification of such Mortgage Loan.
“Mortgage
Loan Schedule”:
A
schedule of certain mortgage loans owned and held by the Master Servicer which
sets forth information with respect to such mortgage loans, as amended from
time
to time by the parties.
“Mortgaged
Property”:
The
real property and improvements thereon securing repayment of the debt evidenced
by the related Note. Such term shall also include any REO Property.
“Net
Liquidation Proceeds”:
The
amount of proceeds received in connection with the liquidation or sale of any
Specially Serviced Mortgage Loan or REO Property net of the amount of any
liquidation expenses (including, without limitation, legal fees and expenses,
brokerage commissions and conveyance taxes) incurred with respect to such
liquidation or sale.
“Nonrecoverable
Advance”:
Any
Advance or Servicing Advance previously made or proposed to be made in respect
of a Mortgage Loan which, in the reasonable good faith judgment of the 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.
“Note”:
With
respect to any Mortgage Loan, the promissory note or other evidence of
indebtedness or agreements evidencing the indebtedness of a Borrower under
such
Mortgage Loan.
“Opinion
of Counsel”:
A
written opinion of counsel acceptable to the Trustee, as applicable, in its
reasonable discretion which counsel may be in-house counsel for the Master
Servicer if acceptable to the Trustee and the Rating Agencies or counsel for
the
Depositor, as the case may be.
“Permitted
Investments”:
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,
provided, however, that such repurchase agreements are treated as financings
under generally accepted accounting principles (“GAAP”);
(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
on
the date of acquisition has been rated by Moody’s and Standard & Poor’s in
their highest short-term ratings available; provided that such commercial paper
shall have a remaining maturity of not more than 30 days;
(v) a
money
market fund or a qualified investment fund rated by Moody’s in its highest
long-term ratings available or rated AAAm or AAAm-G by Standard & Poor's,
including any such funds for which Deutsche Bank National Trust Company 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.
“Person”:
Any
individual, corporation, limited liability company, partnership, joint venture,
estate, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Qualified
Affiliate”:
Any
Person (a) that is organized and doing business under the laws of any state
of
the United States or the District of Columbia, (b) that is in the business
of
performing the duties of a servicer of commercial mortgage loans, and (c) as
to
which 50% or greater of its outstanding voting stock or equity ownership
interest are directly or indirectly owned by the Servicer or by any Person
or
Persons who directly or indirectly own equity ownership interests in the
Servicer.
“Rating
Agency”:
With
respect to any Mortgage Loan, each of Standard & Poor’s Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and ▇▇▇▇▇’▇ Investors Service,
Inc.
“Reasonable
Efforts”:
Efforts determined to be reasonably diligent by the Master Servicer or the
Servicer, as the case may be, in its reasonable discretion, which efforts do
not
require the Master Servicer or the Servicer, as the case may be, to enter into
any litigation, arbitration or other legal or quasi-legal
proceeding.
“Recoverable
Servicing Advance”:
The
portion of any Servicing Advance (including interest reasonably likely to accrue
thereon at the Advance Rate) previously made or proposed to be made in respect
of a Mortgage Loan or REO Property which, in the judgment (in accordance with
the Accepted Servicing Practices) of the Servicer, will be ultimately
recoverable, together with any accrued and unpaid interest thereon, from late
collections or any other recovery on or in respect of such Mortgage Loan or
REO
Property.
“Reimbursement
Agreement”:
The
Reimbursement Agreement, dated as of _____ __, 200_, between __________ and
Impac Funding Corporation.
“Remittance
Date”:
The
18th
day (or
if such day is not a Business Day, the Business Day immediately following such
day) of the month, beginning on _____ __, 200_.
“REO
Account”:
As
defined in Section 3.11(a).
“REO
Mortgage Loan”:
A
Mortgage Loan deemed for the purposes hereof to be outstanding with respect
to
each REO Property, as more particularly described in Section
3.09(b).
“REO
Property”:
A
Mortgaged Property acquired by the Servicer on behalf of the Master Servicer
through foreclosure or by deed in lieu of foreclosure.
“Responsible
Officer”:
Any
officer or employee of the Master Servicer or the Servicer, as the case may
be,
involved in or responsible for the administration, supervision or management
of
this Agreement and whose name and specimen signature appear on a list prepared
by each party and delivered to the other party, as such list may be amended
from
time to time by either party.
“Servicer”:
__________, __________, or any successor Servicer as herein
provided.
“Servicing
Account”:
The
separate trust account created and maintained by the Master Servicer or
Subservicer with respect to the Mortgage Loans or REO Property, which shall
be
an Eligible Account, for collection of taxes, assessments, insurance premiums
and comparable items as described in Section 3.09 of the PSA.
“Servicing
Advances”:
All
Servicing Expenses paid or to be paid, as the context requires, out of its
own
funds, by the Servicer in connection with the servicing of a Mortgage Loan,
after a default, delinquency or other unanticipated event has occurred or is
reasonably foreseeable, or in connection with the administration of any REO
Property.
“Servicing
Expenses”:
All
customary, reasonable and necessary out-of-pocket costs and expenses paid or
incurred in connection with the Servicer’s obligations hereunder, including
without limitation:
(a) real
estate taxes, assessments and similar charges;
(b) insurance
premiums;
(c) any
expense necessary in order to prevent or cure any violation of applicable laws,
regulations, codes, ordinances, rules, orders, judgments, decrees, injunctions
or restrictive covenants;
(d) any
cost
or expense necessary in order to maintain or release the lien on each Mortgaged
Property and related collateral, including any mortgage registration taxes,
release fees, or recording or filing fees;
(e) customary
expenses for the collection, enforcement or foreclosure of the Mortgage Loans
and the collection of deficiency judgments against Borrowers and guarantors
(including but not limited to the fees and expenses of any trustee under a
deed
of trust, foreclosure title searches and other lien searches);
(f) subject
to Section 3.07, costs and expenses of any appraisals, valuations, inspections,
environmental assessments (including but not limited to the fees and expenses
of
environmental consultants), audits or consultations, engineers, architects,
accountants, on-site property managers, market studies, title and survey work
and financial investigating services;
(g) customary
expenses for liquidation, restructuring, modification or loan workouts, such
as
sales brokerage expenses and other costs of conveyance;
(h) costs
and
expenses related to travel and lodging, subject to Section 3.07 with respect
to
property inspections; and
(i) any
other
reasonable costs and expenses, including without limitation, legal fees and
expenses, incurred by the Servicer under this Agreement in connection with
the
enforcement, collection, foreclosure, disposition, condemnation or destruction
of the Mortgage Loans or related Mortgaged Properties, the maintenance, leasing,
operation, management and sale of the REO Properties, and the performance of
Loan Servicing by the Servicer under this Agreement.
Notwithstanding
the foregoing, Servicing Expenses shall not be deemed to include costs and
expenses incurred by the Servicer in the performance of its Loan Servicing
obligations hereunder that are in the nature of internal costs or fixed overhead
of the Servicer (including, without limitation, costs and expenses relating
to
data processing, computer and telephone systems, office space, equipment and
supplies, and employee salaries and related expenses), which shall be borne
solely by the Servicer.
“Servicing
Fee”:
With
respect to each Mortgage Loan, an amount equal to the product of (a) the
Servicing Fee Rate and (b) the outstanding principal balance of such Mortgage
Loan, payable out of interest received with respect to such Mortgage Loan in
accordance with Section 5.01.
“Servicing
Fee Rate”:
A per
annum rate equal to [___]% ([__] basis points).
“Servicing
File”:
With
respect to each Mortgage Loan, (i) all Mortgage Loan Documents, (ii) to the
extent not included as a Mortgage Loan Document, the documents, information
and
records set forth in the file listing attached hereto as Exhibit “A”, and (iii)
any additional documents or information related thereto maintained or created
by
the Servicer.
“Servicing
Officer”:
Any
officer of the 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 Master Servicer, as such list may
from time to time be amended.
“Servicing
Transfer Date”:
With
respect to each Mortgage Loan, the date of delivery by Master Servicer to the
Servicer of the related Servicing File.
“Special
Services”:
Services relating to lease approvals, work-outs or mortgage loan restructuring,
assumptions or substitutions, foreclosure or accepting deeds-in-lieu thereof,
asset management, disposition or other similar activities with respect to any
Mortgage Loan or Mortgaged Property.
“Specially
Serviced Mortgage Loan”:
Any
Mortgage Loan with respect to which:
(a) the
related Borrower is at least two months delinquent (without giving effect to
any
grace periods permitted by the related Mortgage Loan Documents) in the payment
of a Monthly Payment;
(b) the
related Borrower has expressed to the Servicer an inability to pay or a hardship
in paying the Mortgage Loan in accordance with its terms;
(c) the
Servicer has received notice that the related Borrower has become the subject
of
any bankruptcy, insolvency or similar proceeding, or has admitted in writing
the
inability to pay its debts as they come due or made an assignment for the
benefit of creditors;
(d) the
Servicer has received notice of a foreclosure or threatened foreclosure of
any
lien (other than the Mortgage Loan) on the related Mortgaged
Property;
(e) a
default
of which the Servicer has notice (other than a failure by the related Borrower
to pay principal or interest) and which materially and adversely affects the
interests of the Master Servicer, or after Securitization the trustee or
certificateholders, has occurred and remains unremedied for the applicable
grace
period specified in the Mortgage Loan; or
(f) the
related Borrower has failed to make a balloon payment as and when due and such
default has not been cured within 30 days after such due date;
provided,
however,
that
with respect to the circumstances described in clauses (b), (d) and (e), the
Servicer has received written confirmation from the Master Servicer that such
Mortgage Loan shall be a Specially Serviced Mortgage Loan. To the extent no
other circumstances identified in clauses (a) through (f) above exist that
would
cause the Mortgage Loan to continue to be characterized as a Specially Serviced
Mortgage Loan, a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan:
(i) with
respect to the circumstances described in clauses (a) or (f) above, when the
related Borrower has brought the Mortgage Loan current (or, with respect to
the
circumstances described in clause (f), pursuant to any work-out of the Mortgage
Loan) and thereafter made three consecutive full and timely Monthly Payments
(including pursuant to such workout); or
(ii) with
respect to the circumstances described in clauses (b), (c), (d) and (e) above,
when such circumstances cease to exist or such default is cured, as applicable,
in the reasonable judgment of the Servicer (as confirmed in writing by the
Master Servicer).
“Special
Servicing Fee”:
With
respect to each Specially Serviced Mortgage Loan or REO Mortgage Loan, an amount
equal to the product of (a) the related Special Servicing Fee Rate and (b)
the
outstanding principal balance of such Mortgage Loan, as calculated in accordance
with Section 5.01.
“Special
Servicing Fee Rate”:
A per
annum rate equal to (a) 0.75% (75 basis points).
“Workout
Fee”:
In
connection with the curing of any event of default under any Specially Serviced
Mortgage Loan through a modification, restructuring or work-out of such Mortgage
Loan effected by the Servicer and evidenced by a writing executed by the related
Borrower, the fee payable to the Servicer in an amount equal 1.5% applied to
each collection of interest and principal (including scheduled payments,
prepayments, balloon payments, payments at maturity and payments received with
respect to a partial condemnation of a Mortgaged Property securing a Specially
Serviced Loan) received on such Mortgage Loan for so long as it remains a
Corrected Loan. If the Servicer is terminated (other than for cause or by
resignation), it shall retain the right to receive any and all Workout Fees
payable with respect to Loans that became Corrected Mortgage Loans during the
period that it acted as Special Servicer and were Corrected Loans at the time
of
such termination (and the successor Special Servicer shall not be entitled
to
any portion of such Workout Fees), in each case until the Workout Fee for any
such loan ceases to be payable in accordance with the terms hereof.
ARTICLE
II
RETENTION
AND AUTHORITY OF SERVICER
Section
2.01 Engagement;
Servicing Standard.
The
Master Servicer hereby engages the Servicer to perform, and the Servicer hereby
agrees to perform, Loan Servicing with respect to each of the Mortgage Loans
throughout the term of this Agreement, upon and subject to the terms, covenants
and provisions hereof.
The
Servicer shall perform its services hereunder (a) in accordance with (i)
applicable laws, (ii) the terms and provisions of the Mortgage Loan Documents,
(iii) the express terms hereof, and (iv) the customary and usual standards
of
practice of prudent institutional commercial mortgage loan servicers, and (b)
to
the extent consistent with the foregoing requirements, in the same manner in
which the Servicer services commercial mortgage loans for other third party
portfolios of mortgage loans similar to the Mortgage Loans, but without regard
to any relationship which the Servicer or any Affiliate of the Servicer may
have
with the related Borrower or any Affiliate of such Borrower or to the Servicer’s
right to receive compensation for its services hereunder. The servicing
standards described in the preceding sentence are herein referred to as
“Accepted
Servicing Practices”.
Section
2.02 Subservicing.
The
Servicer may subservice to any Person any of its Loan Servicing obligations
hereunder only with the Master Servicer’s written consent or to the extent
necessary for the Servicer to comply with any applicable laws, regulations,
codes or ordinances relating to the Servicer’s Loan Servicing obligations
hereunder; provided,
however,
that
such Person shall be obligated to deliver any report, assessment, attestation
or
certification required pursuant to Sections 4.02, 4.03 and 4.04 hereof as if
it
were the Servicer hereunder. The Servicer shall provide oversight and
supervision with regard to the performance of all subcontracted services and
any
subservicing agreement shall be consistent with and subject to the provisions
of
this Agreement. Neither the existence of any subservicing agreement nor any
of
the provisions of this Agreement relating to subservicing shall relieve the
Servicer of its obligations to the Master Servicer hereunder. Notwithstanding
any such subservicing agreement, the Servicer shall be obligated to the same
extent and under the same terms and conditions as if the Servicer alone were
servicing the related Mortgage Loans in accordance with the terms of this
Agreement. The Servicer shall be solely liable for all fees owed by it to any
subservicer, regardless of whether the Servicer’s compensation hereunder is
sufficient to pay such fees.
Section
2.03 Authority
of the Servicer.
(a) In
performing its Loan Servicing obligations hereunder, the Servicer shall, except
as otherwise provided herein and subject to the terms of this Agreement, have
full power and authority, acting alone or through others, to take any and all
actions in connection with such Loan Servicing that it deems necessary or
appropriate. Without limiting the generality of the foregoing, the Servicer
is
hereby authorized and empowered by the Master Servicer when the Servicer deems
it appropriate in its reasonable judgment, to execute and deliver, on behalf
of
the Master Servicer, or after Securitization the Securitization trust, (y)
any
and all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien of each Mortgage on the related
Mortgaged Property and any other related collateral; and (z) any and all
instruments of satisfaction or cancellation, or of partial or full release
or
discharge and all other comparable instruments with respect to each of the
Mortgage Loans; provided,
however,
that
the Servicer shall notify the Master Servicer in writing in the event that
the
Servicer intends to execute and deliver any such instrument referred to in
clause (z) above, and, except in connection with any payment in full of any
Mortgage Loan, shall proceed with such course of action only upon receipt of
the
Master Servicer’s written approval thereof. The Master Servicer agrees to
cooperate with the Servicer by either executing and delivering to the Servicer
from time to time (i) powers of attorney evidencing the Servicer’s authority and
power under this Section, or (ii) such documents or instruments deemed necessary
or appropriate by the Servicer to enable the Servicer to carry out its Loan
Servicing obligations hereunder.
(b) In
the
performance of its Loan Servicing obligations hereunder, the Servicer shall
take
any action that is directed by the Master Servicer which relates to the
Servicer’s Loan Servicing obligations under this Agreement; provided,
however,
that
the Servicer shall not be obligated to take, or to refrain from taking, any
action which the Master Servicer requests that the Servicer take or refrain
from
taking to the extent that the Servicer determines in its reasonable judgment
that such action or inaction (i) may cause a violation of applicable laws,
regulations, codes, ordinances, court orders or restrictive covenants with
respect to any Mortgage Loan, Borrower, Mortgaged Property or REO Property;
or
(ii) may cause a violation of any provision of a Mortgage Loan
Document.
ARTICLE
III
SERVICES
TO BE PERFORMED
Section
3.01 Services
as Loan Servicer.
The
Servicer hereby agrees to serve as the loan servicer with respect to each of
the
Mortgage Loans and to perform Loan Servicing as described below and as otherwise
provided herein, upon and subject to the terms of this Agreement. Subject to
any
limitation of authority under Section 2.03, “Loan
Servicing”
shall
mean those services pertaining to the Mortgage Loans which, applying Accepted
Servicing Practices, are required hereunder to be performed by the Servicer,
and
which shall include:
(i) reviewing
all available documents pertaining to the Mortgage Loans, organizing,
administering and maintaining the Servicing Files, and inputting all relevant
information into the Servicer’s loan servicing computer system;
(ii) preparing
and filing or recording all financing statements, continuation statements and
other documents or instruments and taking such other action necessary to
maintain the lien of any Mortgage on the related Mortgaged
Property;
(iii) monitoring
each Borrower’s maintenance of insurance coverage on each Mortgaged Property as
required by the related Mortgage Loan Documents and causing to be maintained
adequate insurance coverage on each Mortgaged Property in accordance with
Section 3.05;
(iv) monitoring
the status of real estate taxes, assessments and other similar items and
verifying the payment of such items for each Mortgaged Property in accordance
with Section 3.02;
(v) preparing
and delivering all reports and information required hereunder;
(vi) procuring
and supervising the services of third parties (other than subservicers pursuant
to Section 2.02) necessary or appropriate in connection with the servicing
of
the Mortgage Loans by the Servicer;
(vii) performing
payment processing, record keeping, administration of escrow and other accounts,
interest rate adjustment, and other routine customer service
functions;
(viii) monitoring
any casualty losses or condemnation proceedings and administering any proceeds
related thereto in accordance with the related Mortgage Loan
Documents;
(ix) notifying
all Borrowers of the appropriate place for communications and payments, and
collecting and monitoring all payments made with respect to the Mortgage
Loans;
(x) administering
any requests for assumptions of a Mortgage Loan or transfers of ownership of
or
placement of subordinate financing on a Mortgaged Property in accordance with
Section 3.08;
(xi) commencing
on behalf of the Master Servicer any litigation or proceeding relating to the
foreclosure or other realization upon the collateral under any of the Mortgage
Loans, and retaining legal counsel in connection therewith, all in accordance
with Section 3.09.
(xii) selling
or disposing of each Specially Serviced Mortgage Loan or REO Property in
accordance with Section 3.10;
(xiii) managing
and operating each REO Property in accordance with Section 3.11;
(xiv) administering
any proposals for modifications, waivers, amendments or consents with respect
to
any term of a Mortgage Loan in accordance with Section 3.12.
Notwithstanding
anything herein to the contrary, the Servicer shall not be required to undertake
any lease approvals, loan modifications, workouts or restructuring, loan
assumptions or substitutions, processing partial releases of collateral or
subordinate financing requests, provided,
however,
that
the Servicer shall be responsible for acting as the intermediary between the
Borrower and the Master Servicer with respect to (x) processing Borrower
requests for consents to actions and (y) the administration of the terms and
provisions of the Mortgage Loan Documents, which includes, without limitation,
collecting, organizing and forwarding to the Master Servicer any documents
in
the possession of the Servicer which relate to the Servicer’s obligation to act
as such intermediary; and provided,
further,
that,
subject to the above proviso, the Master Servicer shall be responsible for
taking any actions regarding such Borrower requests and, therefore, shall be
entitled to retain any modification fees, extension fees, assumption fees,
and
similar processing fees received from or on behalf of any Borrower unless and
until the Master Servicer elects to engage the Servicer to perform such services
pursuant to Sections 3.08 and 3.12.
Section
3.02 Escrow
Accounts; Collection of Taxes, Assessments and Similar Items.
(a) With
respect to the Mortgage Loans described in the Mortgage Loan Schedule, and
subject to and as required by the terms of the related Mortgage Loan Documents,
the Servicer shall establish and maintain one or more Eligible Accounts (each,
an “Escrow
Account”)
into
which any or all Escrow Payments shall be deposited within one Business Day
after receipt and identification. Escrow Accounts shall be denominated “Midland
Loan Services, Inc. in Trust for [the
applicable owner]
and
Various Borrowers” or in such other manner as the Master Servicer prescribes.
The Servicer shall notify the Master Servicer in writing of the location and
account number of each Escrow Account it establishes and shall notify the Master
Servicer prior to any change thereof. Withdrawals of amounts from an Escrow
Account may be made, subject to any express provisions to the contrary herein,
applicable laws, and to the terms of the related Mortgage Loan Documents
governing the use of the Escrow Payments, only: (i) to effect payment of taxes,
assessments, insurance premiums, ground rents and other items required or
permitted to be paid from escrow; (ii) to refund to the Borrowers any sums
determined to be in excess of the amounts required to be deposited therein;
(iii) to pay interest, if required under the Mortgage Loan Documents, to the
Borrowers on balances in the Escrow Accounts; (iv) to pay to the Servicer from
time to time any interest or investment income earned on funds deposited therein
pursuant to Section 3.04; (v) to apply funds to the indebtedness of the Mortgage
Loan in accordance with the terms thereof; (vi) to reimburse the Servicer for
any Servicing Advance (including interest thereon at the Advance Rate) for
which
Escrow Payments should have been made by the Borrowers, but only from amounts
received on the Mortgage Loan which represent late collections of Escrow
Payments thereunder; (vii) to withdraw any amount deposited in the Escrow
Accounts which was not required to be deposited therein; or (viii) to clear
and
terminate the Escrow Accounts at the termination of this Agreement.
(b) The
Servicer shall maintain accurate records with respect to each Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are
or
may become a lien thereon and the status of insurance premiums payable with
respect thereto as well as the payment of ground rents with respect to each
ground lease (to the extent such information is reasonably available). To the
extent that the related Mortgage Loan Documents require Escrow Payments to
be
made by a Borrower, the Servicer shall use Reasonable Efforts to obtain, from
time to time, all bills for the payment of such items, and shall effect payment
prior to the applicable penalty or termination date, employing for such purpose
Escrow Payments paid by the Borrower pursuant to the terms of the Mortgage
Loan
and deposited in the related Escrow Account by the Servicer. To the extent
that
the Mortgage Loan does not require a Borrower to make Escrow Payments, the
Servicer shall use its Reasonable Efforts to require that any such payment
be
made by the Borrower prior to the applicable penalty or termination date.
Subject to Section 3.05 with respect to the payment of insurance premiums,
if a
Borrower fails to make any such payment on a timely basis or collections from
the Borrower are insufficient to pay any such item when due and the Servicer
determines that an advance of such funds would constitute a Recoverable
Servicing Advance, the Servicer shall consult with the Master Servicer regarding
the timing for payment of taxes, assessments and other similar items and upon
receipt of approval from the Master Servicer, make a Servicing Advance prior
to
the applicable penalty or termination date, as allowed under the terms of the
related Mortgage Loan and, in any event, consistent with Accepted Servicing
Practices. Notwithstanding anything to the contrary in the preceding sentence,
with respect to Mortgage Loans that do not provide for escrows for the payment
taxes and assessments, the Servicer shall, subject to prompt receipt of approval
from the Master Servicer, make a Servicing Advance for the payment of such
items
upon the earlier of (i) five Business Days after the Servicer has received
confirmation that such item has not been paid and (ii) the earlier of
(A) 30 days after the date such payments first become due and (B) five
Business Days before the scheduled date of foreclosure of any lien arising
from
nonpayment of such items. In no event shall the Servicer be required to make
any
such Servicing Advance that would not, if made, be a Recoverable Servicing
Advance.
(c) In
accordance with Accepted Servicing Practices and for all Mortgage Loans, the
Servicer shall consult with the Master Servicer regarding any Servicing Advance
and upon receipt of approval from the Master Servicer make a Servicing Advance
with respect to each related Mortgaged Property (including any REO Property)
of
all such funds as are necessary for the purpose of effecting the payment of
(without duplication) (i) ground rents (if applicable), (ii) premiums
on insurance policies, (iii) operating, leasing, managing and liquidation
expenses for REO Properties, (iv) environmental inspections, (v) real
estate taxes, assessments and other similar items that are or may become a
lien
thereon and (vi) any other amount specifically required to be paid as a
Servicing Advance hereunder, if and to the extent monies in the Servicing
Accounts are insufficient to pay such item when due and the related Borrower
has
failed to pay such item on a timely basis, provided
that the
Servicer shall only be required to make any such Servicing Advance that would,
if made, constitute a Recoverable Servicing Advance.
Section
3.03 Collection
Accounts.
(a) With
respect to the Mortgage Loans, the Servicer shall establish and maintain one
or
more Eligible Accounts (each, a “Collection
Account”)
for
the benefit of the trust for the purposes set forth herein. Collection Accounts
shall be denominated “Midland Loan Services, Inc. in Trust for [the applicable
owner]” or in such other manner as the Master Servicer prescribes. The Servicer
shall deposit into the Collection Accounts within one (1) Business Day after
receipt all payments and collections received by it on or after the date hereof
with respect to the Mortgage Loans, other than payments and collections with
respect to any REO Property (which shall be deposited into the Collection
Account from amounts withdrawn from the related REO Account pursuant to Section
3.11(a)), Escrow Payments or payments in the nature of Additional Servicing
Compensation.
(b) The
Servicer shall make withdrawals from the Collection Accounts only as follows
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to
withdraw any amount deposited in the Collection Accounts which was not required
to be deposited therein;
(ii) pursuant
to Section 5.01, to pay to the Servicer the Servicing Fee, Special Servicing
Fee, Workout Fee and Disposition Fee on each Remittance Date;
(iii) pursuant
to Section 5.02, to pay or reimburse the Servicer for any Servicing Advances
(including interest thereon at the Advance Rate);
(iv) to
pay to
the Servicer from time to time any interest or investment income earned on
funds
deposited in the Collection Accounts pursuant to Section 3.04;
(v) to
remit
to the Master Servicer on each Remittance Date, pursuant to wiring instructions
from the Master Servicer, all amounts (which, for the avoidance of doubt shall
include all prepayment penalties collected from the borrower) on deposit in
the
Collection Accounts (that represent good funds) as of the close of business
on
the Determination Date, net of any withdrawals from the Collection Account
pursuant to this Section;
(vi) to
clear
and terminate the Collection Accounts upon the termination of this
Agreement;
(vii) pursuant
to Section 5.02, to pay or reimburse itself for Advances not previously
reimbursed; and
(viii) to
reimburse itself out of general collections for any Advance or Servicing Advance
made that has been deemed by the Servicer to be a Nonrecoverable
Advance.
Section
3.04 Permitted
Investments.
The
Servicer may direct any depository institution or trust company in which the
Accounts are maintained to invest the funds held therein in one or more
Permitted Investments; provided,
however,
that
such funds shall be either (i) immediately available or (ii) available in
accordance with a schedule which will permit the Servicer to meet its payment
obligations hereunder. The Servicer shall be entitled to all income and gain
realized from the investment of funds deposited in the Accounts. The Servicer
shall deposit from its own funds in the applicable Account the amount of any
loss incurred in respect of any such investment of funds immediately upon the
realization of such loss. Notwithstanding the foregoing, the Servicer shall
not
direct the investment of funds held in any Escrow Account and retain the income
and gain realized therefrom if the related Mortgage Loan Documents or applicable
law permit the Borrower to be entitled to the income and gain realized from
the
investment of funds deposited therein. In such event, the Servicer shall direct
the depository institution or trust company in which such Escrow Accounts are
maintained to invest the funds held therein (1) in accordance with the
Borrower’s written investment instructions, if the Mortgage Loan Documents or
applicable law require such funds to be invested in accordance with the
Borrower’s direction; and (2) in accordance with the Master Servicer’s written
investment instructions, if the Mortgage Loan Documents and applicable law
do
not permit the Borrower to direct the investment of such funds; provided,
however,
that in
either event (i) such funds shall be either (y) immediately available or (z)
available in accordance with a schedule which will permit the Servicer to meet
the payment obligations for which the Escrow Account was established, and (ii)
the Servicer shall have no liability for any loss in investments of such funds
that are invested pursuant to such written instructions.
Section
3.05 Maintenance
of Insurance Policies.
(a) The
Servicer shall use its Reasonable Efforts to cause the Borrower of each Mortgage
Loan to maintain for each Mortgage Loan such insurance as is required to be
maintained pursuant to the related Mortgage Loan Documents. If the Borrower
fails to maintain such insurance, then the Servicer shall notify the Master
Servicer of such breach and, to the extent available at commercially reasonable
rates, cause to be maintained (i) fire and hazard insurance with extended
coverage in an amount which is at least equal to the lesser of the current
principal balance of such Mortgage Loan and the replacement cost of the
improvements which are a part of the related Mortgaged Property and (ii) to
the
extent that the Mortgaged Property is located in a federally designated special
flood hazard area, flood insurance in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (y) the unpaid principal balance
of
the related Mortgage Loan or (z) the maximum amount of such insurance as is
available for the related Mortgaged Property under the National Flood Insurance
Act. After notifying the Master Servicer pursuant to the second preceding
sentence, the Servicer shall take such action as the Master Servicer reasonably
requests with respect to the maintenance of any other forms of insurance which
are required to be maintained pursuant to the related Mortgage Loan Documents,
except to the extent that such insurance is not available at commercially
reasonable rates or the Master Servicer, or after Securitization the
Securitization trust, as mortgagee, does not have an insurable interest. The
Servicer shall, to the extent available at commercially reasonable rates,
maintain for each REO Property no less insurance coverage than was previously
required with respect to the related Mortgaged Property or as may be required
at
any time by the Master Servicer in writing. All such policies, except for
policies maintained for any REO Mortgaged Property, shall be endorsed with
standard mortgagee clauses with loss payable to the Master Servicer, and shall
be in an amount sufficient to avoid the application of any co-insurance clause.
The costs of maintaining the insurance policies which the Servicer is required
to maintain pursuant to this Section shall be paid by the Servicer as a
Servicing Advance.
(b) The
Servicer may fulfill its obligation to maintain insurance, as provided in
Section 3.05(a), through a master force placed insurance policy, the cost of
which shall be paid by the Servicer as a Servicing Advance, provided that such
cost is limited to the incremental cost of such policy allocable to such
Mortgaged Property or REO Property (i.e., other than any minimum or standby
premium payable for such policy whether or not any Mortgaged Property is then
covered thereby, which shall be paid by the Servicer). Such master force placed
insurance policy may contain a deductible clause, in which case the Servicer
shall, in the event that there shall not have been maintained on the related
Mortgaged Property or REO Property a policy otherwise complying with the
provisions of Section 3.05(a), and there shall have been one or more losses
which would have been covered by such a policy had it been maintained,
immediately deposit into the related Collection Account from its own funds
the
amount not otherwise payable under the master force placed insurance policy
because of such deductible to the extent that such deductible exceeds the
deductible limitation required under the related Mortgage Loan Documents, or,
in
the absence of such deductible limitation, the deductible limitation which
is
consistent with Accepted Servicing Practices.
(c) The
Servicer shall maintain at its own expense a fidelity bond in form and amount
that is consistent with Accepted Servicing Practices. In addition, the Servicer
shall keep in force, at its own expense during the term of this Agreement,
a
policy or policies of insurance in form and amounts that are consistent with
Accepted Servicing Practices, covering loss occasioned by the errors and
omissions of the Servicer’s officers and employees in connection with its
obligations hereunder.
Section
3.06 Delivery
and Possession of Servicing Files.
On
or
before the related Servicing Transfer Date, the Master Servicer shall deliver
or
cause to be delivered to the Servicer (i) a Servicing File with respect to
each
Mortgage Loan; and (ii) the amounts, if any, received by the Master Servicer
representing Escrow Payments previously made by the Borrowers. The Servicer
shall promptly acknowledge receipt of the Servicing File and Escrow Payments
for
the Mortgage Loans and shall promptly deposit such Escrow Payments in the Escrow
Accounts established pursuant to this Agreement. The contents of each Servicing
File delivered to the Servicer are and shall be held in trust by the Servicer
for the benefit of the Master Servicer as the owner thereof or, in the case
of a
Securitization, held in trust by the Servicer for the benefit of the
Securitization trust; the Servicer’s possession of the contents of each
Servicing File so delivered is for the sole purpose of servicing the related
Mortgage Loan; and such possession by the Servicer shall be in a custodial
capacity only. The Servicer shall release its custody of the contents of any
Servicing File only in accordance with written instructions from the Master
Servicer, and upon request of the Master Servicer, the Servicer shall deliver
to
the Master Servicer the Servicing File or a copy of any document contained
therein; provided,
however,
that if
the Servicer is unable to perform its Loan Servicing obligations with respect
to
the related Mortgage Loan after any such release or delivery of the Servicing
File, then the Servicer’s responsibilities for Loan Servicing with respect to
such Mortgage Loan may be terminated immediately by the Servicer upon written
notice to the Master Servicer.
Section
3.07 Inspections.
The
Servicer shall perform a physical inspection of each Mortgaged Property or
REO
Property at least annually for Mortgage Loans with outstanding principal balance
of more than $1,000,000 and every other year for Mortgage Loans with an
outstanding principal balance of less than or equal to $1,000,000 or if (a)
the
related Mortgage Loan becomes a Specially Serviced Mortgage Loan, (b) the Master
Servicer requests such an inspection, or (c) the Servicer, with the approval
of
the Master Servicer, determines that it is prudent to conduct such an
inspection. The Servicer shall prepare a written report of each such inspection
and shall promptly deliver a copy of such report to the Master Servicer. The
reasonable out-of-pocket expenses incurred by the Servicer in connection with
any such inspections (including any out-of-pocket expenses related to travel
and
lodging and any charges incurred through the use of a qualified third party
to
perform such services) shall be paid as a Servicing Advance; provided,
however,
that
with respect to the annual (or every other year) inspection of any Mortgaged
Property or the initial inspection of any Mortgaged property relating to any
Specially Serviced Mortgage Loan, such expenses shall be borne by the
Servicer.
Section
3.08 “Due-on-Sale”
Clauses; Assumption Agreements.
When
any
Borrower proposes to convey or encumber all or any portion of its interests
in a
Mortgaged Property, or if such conveyance or encumbrance has actually occurred,
to the extent that the Servicer has actual knowledge of such conveyance or
encumbrance, the Servicer shall immediately give notice thereof to the Master
Servicer and take such related actions as the Master Servicer reasonably
directs, including (i) waiving or enforcing any due-on-sale clause or
due-on-encumbrance clause contained in the related Mortgage Loan Documents,
to
the extent permitted under the terms of the related Mortgage Loan Documents
and
applicable law, (ii) taking or entering into an assumption or substitution
agreement from or with the Person to whom such Mortgaged Property has been
or
shall be conveyed, and (iii) releasing the original Borrower from liability
upon
the related Mortgage Loan and substituting the new Borrower as the obligor
thereon.
To
the
extent the Servicer is engaged by the Master Servicer to perform analysis,
processing and administrative functions in connection with any request by a
Borrower to waive any such due-on-sale clause or due-on-encumbrance clause
and/or to enter into any such assumption or substitution agreement, the Servicer
may, as a condition to granting any such request require (to the extent
permitted by applicable law) that such Borrower pay to it, as Additional
Servicing Compensation, a reasonable and customary fee consistent with Accepted
Servicing Practices in connection with such request, together with any related
costs and expenses incurred by the Servicer; provided,
however,
that in
the event that the Borrower fails or is unable to pay any such costs and
expenses, or the Master Servicer directs the Servicer to waive any requirement
that the Borrower pay any such costs or expenses, the same shall be paid by
the
Servicer as a Servicing Advance.
Section
3.09 Realization
Upon Mortgaged Properties.
(a) Upon
the
failure of any Borrower to make any required payment of principal, interest
or
other amounts due under a Mortgage Loan, or otherwise to perform fully any
material obligations under any of the related Mortgage Loan Documents, in either
case within any applicable grace period, the Servicer shall, upon discovery
of
such failure, promptly notify the Master Servicer in writing. In accordance
with
the operating procedures set forth in Exhibit “C” attached hereto, the Servicer
shall issue notices of default, declare events of default, declare due the
entire outstanding principal balance, and otherwise take all reasonable actions
under the related Mortgage Loan in preparation for the Master Servicer to
realize upon the underlying collateral. With respect to any Specially Serviced
Mortgage Loan, the Servicer shall, as permitted under the provisions of the
related Mortgage Loan Documents, and subject to the Master Servicer’s prior
written consent, foreclose upon or otherwise comparably convert the ownership
of
the related Mortgaged Property. In connection with such foreclosure or other
conversion, the Servicer shall, subject to the consent or direction of the
Master Servicer, follow such practices and procedures as it shall deem necessary
or advisable and as shall be consistent with Accepted Servicing Practices.
All
costs and expenses incurred by the Servicer in any such proceedings shall be
paid by the Servicer as a Servicing Advance.
(b) If
title
to any Mortgaged Property is acquired in foreclosure or by deed in lieu of
foreclosure, the deed or certificate of sale shall be taken in the name of
the
Master Servicer’s nominee, or after Securitization the nominee of the
Securitization trustee, but in no event shall such deed or certificate be taken
in the name of the Servicer. Notwithstanding any such acquisition of title
and
cancellation of the related Mortgage Loan, such Mortgage Loan shall be
considered to be an REO Mortgage Loan held by the Master Servicer or after
Securitization the Securitization trustee until such time as the related REO
Property shall be sold, transferred or conveyed by the Master Servicer or such
trustee. Consistent with the foregoing, for purposes of all calculations
hereunder, so long as such REO Mortgage Loan shall be considered to be an
outstanding Mortgage Loan, payments and collections with respect to the related
REO Property received in any month (net of related expenses) shall be applied
to
amounts which would have been payable under the related Note in accordance
with
the terms of such Note.
(c) Except
as
otherwise provided in written instructions delivered to the Servicer by the
Master Servicer, the Servicer shall not obtain title to any Mortgaged Property
as a result or in lieu of foreclosure or otherwise, and shall not otherwise
acquire possession of, or take other action with respect to, any Mortgaged
Property, if, as a result of any such action, the Master Servicer, or after
Securitization the Securitization trustee, would be considered to hold title
to,
to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of any Environmental Law, or a
“discharger” or “responsible party” thereunder, unless the Servicer has also
previously determined, based on a report prepared by a Person who regularly
conducts environmental site assessments, that:
(i) such
Mortgaged Property is in compliance with applicable Environmental Laws or,
if
not, that taking such actions as are necessary to bring such Mortgaged Property
into compliance therewith is reasonably likely to produce a greater recovery
on
a present value basis than not taking such actions; and
(ii) there
are
no circumstances present on such Mortgaged Property relating to the use,
management or disposal of any Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation could be required
under any applicable Environmental Law, or that, if any such Hazardous Materials
are present for which such action could be required, taking such actions with
respect to the affected Mortgaged Property is reasonably likely to produce
a
greater recovery on a present value basis than not taking such
actions.
If
the
Servicer has so determined based on satisfaction of the criteria in clauses
(i)
and (ii) above that it would be in the best economic interest of the Master
Servicer, or after Securitization the Securitization trustee, to take any such
actions, the Servicer shall notify the Master Servicer of such proposed action.
The Servicer shall take such action only if authorized by the Master Servicer
in
writing. The costs of any such compliance, containment, clean-up or remediation
shall be paid by the Servicer as a Servicing Expense.
If
the
environmental assessment first obtained by the Servicer with respect to a
Mortgaged Property indicates that such Mortgaged Property may not be in
compliance with applicable Environmental Laws or that Hazardous Materials may
be
present but does not definitively establish such fact, the Servicer, subject
to
the Master Servicer’s prior written consent, shall cause such further
environmental assessments to be conducted.
(d) The
environmental site assessments contemplated by Section 3.09(c) shall be prepared
by any Person who is recommended by the Servicer and approved in writing by
the
Master Servicer or such other Person as directed in writing by the Master
Servicer. The cost of preparation of any environmental assessment shall be
paid
by the Servicer as a Servicing Expense.
(e) If
the
Servicer determines, pursuant to Section 3.09(c), that taking such actions
as
are necessary to bring any Mortgaged Property into compliance with applicable
Environmental Laws, or taking such actions with respect to the containment,
clean-up, removal or remediation of hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials affecting any such Mortgaged
Property, is not reasonably likely to produce a greater recovery on a present
value basis than not taking such actions, then the Servicer shall take such
action as directed in writing by the Master Servicer, including, without
limitation, releasing the lien of the related Mortgage with respect to the
affected Mortgaged Property.
Section
3.10 Sale
of Specially Serviced Mortgage Loans and REO Properties.
(a) With
respect to any Specially Serviced Mortgage Loan or REO Property, when and if
directed in writing by the Master Servicer, the Servicer shall use its
Reasonable Efforts to sell to any Person (other than an Affiliate of the
Servicer) such Specially Serviced Mortgage Loan or REO Property on commercially
reasonable terms which are consistent with Accepted Servicing Practices;
provided,
however,
that
any such sale must be approved in writing by the Master Servicer.
(b) Subject
to Sections 3.10(a), the Servicer shall act on behalf of the Master Servicer
in
negotiating and taking any such action necessary or appropriate in connection
with the sale of any Specially Serviced Mortgage Loan or REO Property, including
the collection of all amounts payable in connection therewith. Any sale of
any
Specially Serviced Mortgage Loan or REO Property shall be without recourse
to,
or representation or warranty by, the Master Servicer, the Servicer, or after
Securitization the Securitization trust (except that any contract of sale and
conveyance documents may contain customary warranties of title and condition).
The Net Liquidation Proceeds (after deduction of the Disposition Fee) shall
be
promptly deposited by the Servicer in the related Collection
Account.
Section
3.11 Management
of REO Property.
(a) Upon
the
acquisition by the Master Servicer of any REO Property, the Servicer shall
have
full power and authority, subject to the specific requirements and prohibitions
of this Agreement, to do or authorize to be done any and all things in
connection therewith as are consistent with Accepted Servicing Practices, all
on
terms and for such period as the Servicer deems to be in the best economic
interest of the Master Servicer. The Servicer shall segregate and hold all
revenues received by it with respect to any REO Property separate and apart
from
its own funds and general assets and shall establish and maintain with respect
to any REO Property one or more Eligible Accounts (each, an “REO
Account”)
for
the purposes set forth herein. REO Accounts shall be Eligible Accounts and
shall
be denominated “__________ in Trust for IMPAC Commercial Capital Corporation” or
in such other manner as the Master Servicer prescribes. The Servicer shall
be
entitled to any interest or investment income earned on funds deposited in
an
REO Account pursuant to Section 3.04. In connection therewith, the Servicer
shall deposit or cause to be deposited in the REO Account on a daily basis
within one (1) Business Day after receipt all revenues received by it with
respect to any REO Property (except for any Net Liquidation Proceeds), and
shall
withdraw therefrom funds necessary for the proper maintenance, leasing,
operation, management and sale of any REO Property, including:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
taxes
and assessments in respect of such REO Property that could result or have
resulted in the imposition of a lien thereon;
(iii) all
ground rental payments, if applicable, with respect to such REO Property;
and
(iv) all
costs
and expenses necessary to maintain, lease, operate, manage and sell such REO
Property, including the management fee payable to the property manager engaged
by Servicer pursuant to Section 3.11(b).
To
the
extent that amounts on deposit in any REO Account are insufficient for the
purposes set forth above, and the Servicer determines that advancing such funds
would constitute a Recoverable Servicing Advance, the Servicer shall consult
with the Master Servicer regarding such Servicing Advance and upon receipt
of
approval from the Master Servicer, make a Servicing Advance. The Servicer shall
withdraw from each REO Account and deposit into the related Collection Account
on a monthly basis on or prior to the related Remittance Date the income, net
of
expenses, received or collected from each REO Property; provided,
however,
that
the Servicer may retain in each REO Account funds sufficient for the payment
of
the items set forth in clauses (i) through (iv) above, including, without
limitation, the creation of reasonable reserves for repairs, replacements,
and
necessary capital improvements and other related expenses.
(b) The
Servicer may contract with any Person as a property manager for the operation
and management of any REO Property; provided,
however,
that:
(i) the
terms
and conditions of any such contract shall not be inconsistent herewith and
the
Master Servicer has provided its written consent (which shall not be
unreasonably withheld) with respect to such property manager;
(ii) none
of
the provisions of this Section relating to any such contract or to actions
taken
through any such Person shall be deemed to relieve the Servicer of any of its
duties and obligations to the Master Servicer with respect to the operation
and
management of such REO Property; and
(iii) the
Servicer shall be obligated with respect thereto to the same extent as if it
alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
Section
3.12 Modifications,
Waivers, Amendments and Consents.
(a) When
any
Borrower proposes any modification, waiver or amendment of any term of any
Mortgage Loan or requests any consents related thereto, the Servicer shall
immediately give notice thereof to the Master Servicer and take such related
actions as the Master Servicer directs, except with respect to any Borrower
proposal or request which involves any required payment from the Borrower in
the
nature of Additional Servicing Compensation to which the Servicer is properly
entitled. All modifications, waivers or amendments of any Mortgage Loan or
consents related thereto shall be in writing.
(b) To
the
extent the Servicer is engaged by the Master Servicer to perform analysis,
processing and administrative functions in connection with any request by a
Borrower for any consent, modification, waiver or amendment the Servicer may,
as
a condition to granting any such request require (to the extent permitted by
applicable law) that such Borrower pay to it, as Additional Servicing
Compensation, a reasonable and customary fee consistent with Accepted Servicing
Practices in connection with such request, together with any related costs
and
expenses incurred by the Servicer; provided,
however,
that in
the event that the Borrower fails or is unable to pay any such costs and
expenses, or the Master Servicer directs the Servicer to waive any requirement
that the Borrower pay any such costs or expenses, the same shall be paid by
the
Servicer as a Servicing Advance.
ARTICLE
IV
STATEMENTS
AND REPORTS
Section
4.01 Reporting
by the Servicer.
(a) On
or
before each Remittance Date, the Servicer shall render to the Master Servicer
a
report reflecting activity with respect to the Mortgage Loans as of the close
of
business on the preceding Determination Date (or, in the case of the first
Remittance Date, the Servicing Transfer Date) in a format and containing such
information as the Master Servicer shall reasonably require. Such report shall
be made available in both written and electronic format.
(b) Each
year
beginning in the calendar year which immediately succeeds the year hereof,
the
Servicer shall prepare and file the reports of foreclosures and abandonments
of
any Mortgaged Property and the annual information returns with respect to each
Borrower’s debt service payments under the Mortgage Loans as required by
Sections 6050J and 6050H, respectively, of the Internal Revenue Code and the
rules and regulations promulgated thereunder, as amended.
(c) Not
later
than twenty days after each Remittance Date, the Servicer shall forward to
the
Master Servicer a statement, setting forth the status of the Accounts as of
the
close of business on such Remittance Date showing, for the period from the
preceding Remittance Date (or, in the case of the first Remittance Date, the
Servicing Transfer Date) to such Remittance Date, the aggregate of deposits
into
and withdrawals from the Accounts.
(d) The
Servicer will provide the Master Servicer with immediate on- line Internet
website access to Portfolio
Investor Insight®
with
respect to the Mortgage Loans,
subject
to such reasonable policies, procedures and limitations as the parties may
agree
upon from time to time.
(e) The
Servicer shall use its Reasonable Efforts to promptly collect from each Borrower
(and forward on to the Master Servicer) the property operating statements,
rent
rolls, financial statements and other financial reports which are required
to be
delivered by the Borrower pursuant to the related Mortgage Loan Documents.
The
Servicer shall promptly (i) review and analyze such items as may be collected;
(ii) prepare written reports based on such analysis; and (iii) deliver copies
of
such written reports to the Master Servicer.
(f) The
Servicer shall provide the Master Servicer with any summary reports prepared
by
any Rating Agency with respect to the Servicer’s ranking by such Rating
Agency.
(g) [Unless
otherwise specifically stated herein, if the Servicer is required to deliver
any
statement, report or information under any provisions of this Agreement, the
Servicer may satisfy such obligation by (x) physically delivering a paper copy
of such statement, report or information, (y) delivering such statement, report
or information in a commonly used electronic format, or (z) making such
statement, report or information available on the Servicer's Internet website,
unless this Agreement expressly specifies a particular method of
delivery.]
Section
4.02 Annual
Statements of Compliance.
(a)
The
Servicer will deliver to the Depositor, the Issuing Entity and the Trustee,
with
a copy to the Credit Enhancer, not later than March 15th of each calendar year,
beginning in 200_, an Officer’s Certificate (an “Annual Statement of
Compliance”) stating that, as to each signatory thereof, (i) a review of the
activities of the Servicer during the preceding calendar year and of its
performance under this Agreement or other applicable agreement has been made
under such officer’s supervision and (ii) to the best of such officer’s
knowledge, based on such review, the Servicer has fulfilled all of its material
obligations under this Agreement in all material respects throughout such year,
or, if there has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and the nature
and
status of cure provisions thereof. Such Annual Statement of Compliance shall
contain no restrictions or limitations on its use.
Failure
of the Servicer to timely comply with this Section 4.02 shall be deemed an
Event
of Default, and the Master Servicer may, in addition to whatever rights the
Master Servicer may have under this Agreement and at law or equity or to
damages, including injunctive relief and specific performance, upon notice
immediately terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer except
for compensation due under Section 8.01(b) and the right to the Excess Servicing
Strip.
(b) The
Servicer shall deliver to the Depositor, the Issuing Entity and the Trustee,
with a copy to the Credit Enhancer, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, written
notice by means of an Officer’s Certificate of any event which with the giving
of notice or the lapse of time or both, would become an Event of
Default.
Section
4.03 Assessments
of Compliance and Attestation Reports.
On and
after January 1, 2006, the Servicer shall service and administer the Mortgage
Loans in accordance with all applicable requirements of the Servicing Criteria.
Pursuant to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1123 of
Regulation AB, the Servicer shall deliver to the Issuing Entity, the Trustee,
the Depositor, the Credit Enhancer and each Rating Agency on or before March
15th of each calendar year beginning in 200_, a report regarding the Servicer’s
assessment of compliance (an “Assessment of Compliance”) with the Servicing
Criteria during the preceding calendar year. The Assessment of Compliance must
be reasonably satisfactory to the Trustee, and as set forth in Regulation AB,
the Assessment of Compliance must contain the following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Servicer;
(b) A
statement by such officer that such officer used the Servicing Criteria attached
as Exhibit B hereto, and which will also be attached to the Assement of
Compliance, to assess compliance with the Servicing Criteria applicable to
the
Servicer;
(c) An
assessment by such officer of the Servicer’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit B hereto which are indicated as applicable to the Servicer.
On
or
before March 15 of each calendar year beginning in 200_, the Servicer shall
furnish to the Issuing Entity, the Trustee, the Depositor, the Credit Enhancer
and each Rating Agency a report (an “Attestation Report”) by a registered public
accounting firm that attests to, and reports on, the Assessment of Compliance
made by the Servicer, as required by Rules 13a-18 and 15d-18 of the Exchange
Act
and Item 1122(b) of Regulation AB, which Attestation Report must be made in
accordance with standards for attestation reports issued or adopted by the
Public Company Accounting Oversight Board.
Failure
of the Servicer to timely comply with this Section 4.03 shall be deemed an
Event
of Default, and the Master Servicer may, in addition to whatever rights the
Master Servicer may have under this Agreement and at law or equity or to
damages, including injunctive relief and specific performance, upon notice
immediately terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer except for compensation due under Section 8.01(b)
and
the right to the Excess Servicing Strip.
Section
4.04 Exchange
Act Reporting.
The
Servicer shall fully cooperate with the Master Servicer in connection with
the
Trust’s satisfying the reporting requirements under the Exchange
Act.
Within
12
calendar days after each Distribution Date, the Trustee shall, in accordance
with industry standards, file with the Commission via the Electronic Data
Gathering and Retrieval System ("▇▇▇▇▇"), a Distribution Report on Form 10-D,
signed by the Depositor, with a copy of the monthly statement to be furnished
by
the Trustee to the Certificateholders for such Distribution Date. Any disclosure
in addition to the monthly statement required to be included on the Form 10-D
(“Additional Form 10-D Disclosure”) shall be determined and prepared by the
entity that is indicated in Exhibit C as the responsible party for providing
that information, if other than the Trustee.
Within
3
calendar days after the related Distribution Date, each entity that is indicated
in Exhibit C as the responsible party for providing Additional Form 10-D
Disclosure shall be required to provide to the Trustee and the Depositor, to
the
extent known by a responsible party thereof, clearly identifying which item
of
Form 10-D the information relates to, any Additional Form 10-D Disclosure,
if
applicable.
Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a "Reportable
Event"),
the
Depositor shall prepare and file any Form 8-K, as required by the Exchange
Act,
in addition to the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K ("Form
8-K Disclosure Information")
shall
be determined and prepared by the entity that is indicated in Exhibit C as
the
responsible party for providing that information.
For
so
long as the Trust is subject to the Exchange Act reporting requirements, no
later than the end of business on the second Business Day after the occurrence
of a Reportable Event, the entity that is indicated in Exhibit C as the
responsible party for providing Form 8-K Disclosure Information shall be
required to provide to the Depositor, to the extent known by a responsible
officer thereof, the form and substance of any Form 8-K Disclosure Information,
if applicable.
Any
disclosure or information that is required to be included on Form 10-K
("Additional
Form 10-K Disclosure")
shall
be determined and prepared by the entity that is indicated in Exhibit C as
the
responsible party for providing that information, if other than the
Trustee.
On
or
prior to (x) March 15, 200_ and (y) unless and until a Form 15 Suspension Notice
shall have been filed, prior to March 31 of each year thereafter, each entity
that is indicated in Exhibit C as the responsible party for providing Additional
Form 10-K Disclosure shall be required to provide to the Trustee and the
Depositor, to the extent known by a responsible party thereof, the form and
substance of any Additional Form 10-K Disclosure Information, if
applicable.
ARTICLE
V
SERVICER’S
COMPENSATION AND EXPENSES
Section
5.01 Servicing
Compensation.
As
consideration for servicing the Mortgage Loans subject to this Agreement, the
Servicer shall be entitled to a Servicing Fee for each Mortgage Loan remaining
subject to this Agreement during any calendar month or part thereof. Such
Servicing Fee shall be payable monthly on the Remittance Date and shall be
computed on the basis of the same outstanding principal balance and for the
period with respect to which any related interest payment on the related
Mortgage Loan is computed. The Servicer may pay itself the Servicing Fee on
each
Remittance Date from amounts on deposit in the related Collection
Account.
As
further compensation for its activities hereunder, the Servicer shall be
entitled to retain any payments or collections received by it which are in
the
nature of Additional Servicing Compensation.
As
compensation for its special servicing activities hereunder, the Servicer shall
be entitled to the Special Servicing Fee for each Specially Serviced Mortgage
Loan or REO Property remaining subject to this Agreement during any calendar
month or part thereof. Such Special Servicing Fee shall be payable monthly
on
the Remittance Date and shall be computed on the basis of the same outstanding
principal balance and for the period with respect to which any related interest
payment on the related Mortgage Loan is computed. The Servicer may pay itself
the Special Servicing Fee on each Remittance Date from amounts on deposit in
the
related Collection Account. The Servicer shall not be entitled to the Servicing
Fee for any Mortgage Loan in the event the Servicer is entitled to receive
the
Special Servicing Fee for such Mortgage Loan.
In
addition to the other servicing compensation provided for in this Agreement,
and
not in lieu thereof, the Servicer shall be entitled to (i) the Disposition
Fee,
which shall be payable out of Net Liquidation Proceeds prior to the deposit
of
Net Liquidation Proceeds into the Collection Account; and (ii) the Workout
Fee
which shall be payable on each Remittance Date.
To
the
extent that amounts on deposit in the Collection Account are insufficient for
the payment of the Servicing Fee, Special Servicing Fee or Workout Fee, the
Master Servicer shall pay any such shortfall to the Servicer within ten (10)
Business Days after the Master Servicer’s receipt of an itemized invoice
therefor.
The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder and shall not be entitled to reimbursement
thereof except as specifically provided for herein.
Notwithstanding
anything herein to the contrary, Midland Loan Services, Inc. (and its successors
and assigns) shall also be entitled to the Excess Servicing Strip with respect
to the Mortgage Loans that it is servicing and may at its option assign or
pledge to any third party or retain for itself the Excess Servicing Strip.
The
Master Servicer (or its successor hereunder, if any) shall pay the Excess
Servicing Strip to the holder of the Excess Servicing Strip (i.e., Midland
Loan
Services, Inc. or any such third party) at such time and to the extent the
Master Servicer is entitled to receive payment of its Master Servicing Fees
hereunder, notwithstanding any resignation or termination of the Master Servicer
hereunder. In the event that Midland Loan Services, Inc. is terminated or
resigns as servicer, it (and its successors and assigns) will be entitled to
retain the Excess Servicing Strip.
Pursuant
to the Reimbursement Agreement, the Servicer shall also receive interest for
any
Advances made by it on the Mortgage Loans on an actual/360 day basis for the
time period from the date of such initial Advance until the time such Advance
is
reimbursed. The interest rate on such Advance will be determined by reference
to
the Prime Rate as most recently published in the Wall Street Journal for the
time period from the date of such initial Advance until the time such Advance
is
reimbursed. The amount of interest paid on an Advance with respect to any
Mortgage Loan by the Master Servicer shall be offset with late fees collected
by
the Servicer with respect to such Mortgage Loan.
Section
5.02 Servicing
Advances and Advances.
(a) Notwithstanding
any other provision hereof, the Servicer shall obtain the written approval
of
the Master Servicer prior to incurring any Servicing Advance that is over
$5,000.00 per item, except for any Servicing Expense which is (i) incurred
by
the Servicer pursuant to Sections 3.02(b) or 3.05 or (ii) made for any purposes
other than those described in item (i) above, and is not over $15,000.00 and
is
made in an emergency situation to preserve and protect the Mortgaged Property
or
the safety of the public in connection with such Mortgaged Property. The
Servicer may cause any Servicing Expenses to be paid directly from the related
Collection Account. The Servicer not be required to make any Servicing Advance
that is not a Recoverable Servicing Advance.
(b) The
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 collection procedures comparable to the collection procedures
of
prudent institutional mortgage loan servicer servicing mortgage loans for their
own account to the extent such procedures shall be consistent with this
Agreement. Consistent with the foregoing, the Servicer may in its discretion
(i)
waive or permit to be waived any late payment 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
Servicer shall consent to the deferment of the due dates for payments due on
a
Mortgage Note, the Servicer shall nonetheless 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 Servicer to make an Advance shall apply only to the extent
that such Advances are not Nonrecoverable Advances. The Servicer shall determine
the aggregate amount of Advances required to be made for the related
Distribution Date, which shall be in an aggregate amount equal to the sum of
(1)
the aggregate amount of Monthly Payments (with each interest portion thereof
adjusted to the Mortgage Rate less the sum of the Master Servicing Fee Rate,
the
Sub-Servicing Fee Rate and any applicable PMI Insurer Fee Rate, other than
Balloon Payments, less the amount of any reductions in the amount of interest
collectable from the Mortgagor pursuant to the Relief Act, on the Outstanding
Mortgage Loans as of the related Due Date, which Monthly Payments were
delinquent as of the close of business as of the related Determination Date)
plus (2) with respect to each Balloon Loan delinquent in respect of its Balloon
Payment as of the close of business on the related Determination Date, an amount
equal to the assumed Monthly Payment (net of the related Master Servicing Fees
and Sub-Servicing Fees) that would have been due on the related Due Date based
on the original principal amortization scheduled for such Balloon Loan until
such Balloon Loan is finally liquidated; provided that no Advance shall be
made
if it would be a Nonrecoverable Advance. On or before 4:00 P.M. New York time
on
each Remittance Date, the Servicer shall remit to the Master Servicer for
deposit in the Certificate Account from its own funds an amount equal to the
Advances to be made by the Servicer in respect of the related Distribution
Date.
The amount of any reimbursement pursuant to Section 3.03 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 Servicer from recoveries on related
Mortgage Loans pursuant to Section 3.03.
(c) The
Master Servicer and the Servicer shall in all cases have a right prior to the
Certificateholders to any particular funds on deposit in the Custodial Account
from time to time for the reimbursement or payment of its Servicing Fee,
Advances, Servicing Advances and any amounts reimbursable thereto in accordance
with Section 3.11 of the PSA, but only if and to the extent such amounts are
to
be reimbursed or paid from such particular funds on deposit in the Custodial
Account pursuant to the express terms of the PSA.
ARTICLE
VI
THE
SERVICER AND THE MASTER SERVICER
Section
6.01 Servicer
Not to Assign; Merger or Consolidation of the Servicer.
(a) Except
as
otherwise provided for in this Section or in Section 2.02, the Servicer may
not
assign this Agreement or any of its rights, powers, duties or obligations
hereunder without the written consent of the Master Servicer; provided, however,
that the Servicer may, after 60 days written notice to Master Servicer, assign
this Agreement to a Qualified Affiliate without the written consent of the
Master Servicer.
(b) The
Servicer may be merged or consolidated with or into any Person, or transfer
all
or substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which it shall be a party, or
any
Person succeeding to its business shall be the successor of the Servicer
hereunder, and shall be deemed to have assumed all of the liabilities of the
Servicer hereunder. The Servicer shall provide written notice to the Master
Servicer of any such merger, consolidation, or transfer.
Section
6.02 Liability
and Indemnification of the Servicer and the Master Servicer.
Neither
the Servicer nor its Affiliates nor any of the directors, officers, employees
or
agents thereof shall be under any liability to the Master Servicer or any third
party for taking or refraining from taking any action, in good faith pursuant
to
or in connection with this Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Servicer or any such Person against any
liability which would otherwise be imposed on the Servicer or any such Person
by
reason of the Servicer’s willful misfeasance, bad faith or negligence (except to
the extent such liability is related to the Servicer’s performance of Special
Services, in which event a gross negligence standard shall apply) in the
performance of its duties hereunder. The Servicer and any director, officer,
employee or agent thereof may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any appropriate Person
respecting any matters arising hereunder. The Servicer and any director,
officer, employee agent, or Affiliate thereof shall be indemnified and held
harmless by the Master Servicer against any claim, loss, liability or expense
incurred, including reasonable attorneys’ fees, in connection with any claim,
legal action, investigation or proceeding relating to this Agreement, the
Servicer’s performance hereunder, or any specific action which the Master
Servicer authorized or requested the Servicer to perform pursuant to this
Agreement, as such are incurred, except for any claim, loss, liability or
expense incurred by reason of the Servicer’s willful misfeasance, bad faith,
negligence (except to the extent such liability is related to the Servicer’s
performance of Special Services, in which event a gross negligence standard
shall apply) or breach of the Servicer’s representations and warranties set
forth in Section 7.01. Notwithstanding the exception set forth in the preceding
sentence, in the event that the Servicer sustains any claim, loss, liability
or
expense by reason of such exception and which results from any overcharges
to
Borrowers under the Mortgage Loans, to the extent that such overcharges were
collected by the Servicer and remitted to the Master Servicer, the Master
Servicer shall promptly remit such overcharge to the related Borrower after
the
Master Servicer’s receipt of written notice from the Servicer regarding such
overcharge.
The
Master Servicer and any director, officer, employee or agent thereof shall
be
indemnified and held harmless by the Servicer against any claim loss, liability
or expense incurred, including reasonable attorneys’ fees, by reason of (i) the
Servicer’s willful misfeasance, bad faith or negligence (except to the extent
such liability is related to the Servicer’s performance of Special Services, in
which event a gross negligence standard shall apply) in the performance of
its
duties hereunder or the failure of the Servicer to perform its duties hereunder
in accordance with this Agreement or (ii) a breach of the Servicer’s
representations and warranties set forth in Section 7.01.
The
provisions of this Section shall survive any termination of the rights and
obligations of the Servicer hereunder.
ARTICLE
VII
REPRESENTATIONS
AND WARRANTIES; DEFAULT
Section
7.01 Representations
and Warranties.
(a) The
Servicer hereby makes the following representations and warranties to the Master
Servicer:
(i) Due
Organization, Qualification and Authority.
The
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and is duly qualified to transact
business as a foreign corporation, in good standing and licensed in each state
to the extent necessary to ensure the enforceability of each Mortgage Loan
and
to perform its duties and obligations under this Agreement in accordance with
the terms of this Agreement; the Servicer has the full power, authority and
legal right to execute and deliver this Agreement and to perform in accordance
herewith; the Servicer has duly authorized the execution, delivery and
performance of this Agreement and has duly executed and delivered this
Agreement; this Agreement constitutes the valid, legal, binding obligation
of
the Servicer, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or affecting
the rights of creditors generally and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law);
(ii) No
Conflicts.
Neither
the execution and delivery of this Agreement, nor the fulfillment of or
compliance with the terms and conditions of this Agreement by the Servicer,
will
(i) conflict with or result in a breach of any of the terms, conditions or
provisions of the Servicer’s certificate of incorporation, as amended, or
bylaws, as amended, or any agreement or instrument to which the Servicer is
now
a party or by which it (or any of its properties) is bound, or constitute a
default or result in an acceleration under any of the foregoing; (ii) conflict
with or result in a breach of any legal restriction if compliance therewith
is
necessary (a) to ensure the enforceability of any Mortgage Loan, or (b) for
the
Servicer to perform its obligations under this Agreement in accordance with
the
terms hereof; (iii) result in the violation of any law, rule, regulation, order,
judgment or decree to which the Servicer or its property is subject if
compliance therewith is necessary (a) to ensure the enforceability of any
Mortgage Loan, or (b) for the Servicer to perform its obligations under this
Agreement in accordance with the terms hereof; or (iv) result in the creation
or
imposition of any lien, charge or encumbrance that would have a material adverse
effect upon any of its properties pursuant to the terms of any mortgage,
contract, deed of trust or other instrument, or materially impair the ability
of
the Master Servicer to realize on the Mortgage Loans;
(iii) No
Litigation Pending.
There
is no action, suit, or proceeding pending or to Servicer’s knowledge threatened
against the Servicer which, either in any one instance or in the aggregate,
would draw into question the validity of this Agreement or the Mortgage Loans,
or would be likely to impair materially the ability of the Servicer to perform
its duties and obligations under the terms of this Agreement;
(iv) No
Consent Required.
No
consent, approval, authorization or order of, or registration or filing with,
or
notice to, any court or governmental agency or body having jurisdiction or
regulatory authority over the Servicer is required for (i) the Servicer’s
execution and delivery of, this Agreement, or (ii) the consummation of the
transactions contemplated by this Agreement, or, to the extent required, such
consent, approval, authorization, order, registration, filing or notice has
been
obtained, made or given (as applicable), except that the Servicer may not be
duly qualified to transact business as a foreign corporation or licensed in
one
or more states if such qualification or licensing is not necessary (a) to ensure
the enforceability of any Mortgage Loan, or (b) for the Servicer to perform
its
obligations under this Agreement in accordance with the terms
hereof.
(b) The
Master Servicer hereby makes the following representations and warranties to
the
Servicer:
Due
Authority.
The
Master Servicer has the full power, authority and legal right to execute and
deliver this Agreement and to perform in accordance herewith; the Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement; the Master
Servicer, prior to Securitization, is the Master Servicer and the holder of
the
Mortgage Loans; the Master Servicer, and after Securitization, the Master
Servicer, has the right to authorize the Servicer to perform the actions
contemplated herein; this Agreement constitutes the valid, legal, binding
obligation of the Master Servicer, except as enforceability may be limited
by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally and by general
principles of equity (regardless of whether such enforcement is considered
in a
proceeding in equity or at law).
Section
7.02 Events
of Default.
“Event
of
Default”, wherever used herein, means any one of the following
events:
(a) any
failure by the Servicer to remit to the Master Servicer any payment required
to
be so remitted by the Servicer under the terms of this Agreement when and as
due
which continues unremedied by the Servicer for a period of one (1) Business
Day
after the date on which such remittance was due; or
(b) any
failure on the part of the Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement, or any representation or warranty set forth by
the
Servicer in Section 7.01 shall be untrue or incorrect in any material respect,
and, in either case, such failure or breach materially and adversely affects
the
value of any Mortgage Loan or Mortgaged Property or the priority of the lien
on
any Mortgaged Property or the interest of the Master Servicer therein, which
in
either case continues unremedied for a period of thirty (30) days after the
date
on which written notice of such failure or breach, requiring the same to be
remedied, shall have been given to the Servicer by the Master Servicer (or
such
extended period of time reasonably approved by the Master Servicer provided
that
the Servicer is diligently proceeding in good faith to cure such failure or
breach); or
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
respect of the Servicer for the commencement of an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law, for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs shall have
been
entered against the Servicer, and such decree or order shall remain in force
undischarged or unstayed for a period of 60 days; or
(d) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property; or
(e) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable federal or
state
bankruptcy, insolvency or similar law, make an assignment for the benefit of
its
creditors or voluntarily suspend payment of its obligations; or
(f) failure
by the Servicer to duly perform, within the required time period, its
obligations under Sections 4.02 or 4.03 of this Servicing
Agreement;
then,
and
in each and every case, so long as an Event of Default shall not have been
remedied, the Master Servicer may, by notice in writing to the Servicer, in
addition to whatever rights the Master Servicer may have at law or in equity,
including injunctive relief and specific performance, terminate all of the
rights and obligations of the Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, without the Master Servicer incurring
any penalty or fee of any kind whatsoever in connection therewith; provided,
however,
that
such termination shall be without prejudice to any rights of the Servicer
relating to the payment of its Servicing Fees, Special Servicing Fees,
Disposition Fees, Workout Fees, Additional Servicing Compensation and the
reimbursement of any Servicing Advances which have been made by it under the
terms of this Agreement through and including the date of such termination
(together with interest thereon at the Advance Rate). Except as otherwise
expressly provided in this Agreement, no remedy provided for by this Agreement
shall be exclusive of any other remedy, and each and every remedy shall be
cumulative and in addition to any other remedy, and no delay or omission to
exercise any right or remedy shall impair any such right or remedy or shall
be
deemed to be a waiver of any Event of Default. On or after the receipt by the
Servicer of such written notice of termination from the Master Servicer, all
authority and power of the Servicer under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the Master
Servicer, and the Servicer agrees to cooperate with the Master Servicer in
effecting the termination of the Servicer’s responsibilities and rights
hereunder, including, without limitation, the transfer of the Servicing Files
and the funds held in the Accounts as set forth in Section 8.01.
The
Master Servicer may waive any default by the Servicer in the performance of
its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so
waived.
ARTICLE
VIII
TERMINATION;
TRANSFER OF MORTGAGE LOANS
Section
8.01 Termination
of Agreement.
(a) This
Agreement may be terminated by the Servicer with respect to any Mortgage Loans,
without cause, upon ninety (90) days written notice to the Master
Servicer.
(b) Termination
pursuant to this Section or as otherwise provided herein shall be without
prejudice to any rights of the Master Servicer or the Servicer which may have
accrued through the date of termination hereunder. Upon such termination, the
Servicer shall (i) remit all funds in the related Accounts to the Master
Servicer or such other Person designated by the Master Servicer, net of accrued
Servicing Fees, Special Servicing Fees, Disposition Fees, Workout Fees,
Additional Servicing Compensation, Servicing Advances (with interest thereon
at
the Advance Rate) and Advances (with interest thereon at the Advance Rate)
through the termination date to which the Servicer would be entitled to payment
or reimbursement hereunder; (ii) deliver all related Servicing Files to the
Master Servicer or to Persons designated by the Master Servicer; and (iii)
fully
cooperate with the Master Servicer and any new servicer to effectuate an orderly
transition of Loan Servicing of the related Mortgage Loans. Upon such
termination, any Servicing Fees, Additional Servicing Compensation, Servicing
Advances (with interest thereon at the Advance Rate) and Advances (with interest
thereon at the Advance Rate) which remain unpaid or unreimbursed after the
Servicer has netted out such amounts pursuant to the preceding sentence shall
be
remitted by the Master Servicer to the Servicer within ten (10) Business Days
after the Master Servicer’s receipt of an itemized invoice
therefor.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section
9.01 Amendment;
Waiver.
This
Agreement contains the entire agreement between the parties relating to the
subject matter hereof, and no term or provision hereof may be amended or waived
unless such amendment or waiver is in writing and signed by the party against
whom such amendment or waiver is sought to be enforced. The Servicer shall
not
consent to any such amendment to the Agreement unless the Servicer receives
an
Officer’s Certificate from the Master Servicer stating that the Master Servicer,
after consultation with its accountants, does not believe that the amendment
will result in the Securitization trust failing to qualify as a “qualifying
special-purpose entity” as defined in Statement of Financial Accounting
Standards Number 140.
Section
9.02 Governing
Law.
This
Agreement 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, without giving effect to principles
of
conflicts of laws.
Section
9.03 Notices.
All
demands, notices and communications hereunder shall be in writing and addressed
in each case as follows:
|
(i)
|
if
to the Master Servicer, at:
|
IMPAC
Funding Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Mr. ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
(ii)
|
if
to the Servicer, by U.S. Mail at:
|
_________________
_________________
_________________
_________________
_________________
or
by
delivery to:
_________________
_________________
_________________
_________________
with
a
copy to:
_________________
_________________
_________________
_________________
_________________
Any
of
the above-referenced Persons may change its address for notices hereunder by
giving notice of such change to the other Persons. All notices and demands
shall
be deemed to have been given at the time of the delivery at the address of
such
Person for notices hereunder if personally delivered, mailed by certified or
registered mail, postage prepaid, return receipt requested, or sent by overnight
courier or telecopy; provided,
however,
that
any notice delivered after normal business hours of the recipient or on a day
which is not a Business Day shall be deemed to have been given on the next
succeeding Business Day.
To
the
extent that any demand, notice or communication hereunder is given to the
Servicer by a Responsible Officer of the Master Servicer, such Responsible
Officer shall be deemed to have the requisite power and authority to bind the
Master Servicer with respect to such communication, and the Servicer may
conclusively rely upon and shall be protected in acting or refraining from
acting upon any such communication. To the extent that any demand, notice or
communication hereunder is given to the Master Servicer by a Responsible Officer
of the Servicer, such Responsible Officer shall be deemed to have the requisite
power and authority to bind the Servicer with respect to such communication,
and
the Master Servicer may conclusively rely upon and shall be protected in acting
or refraining from acting upon any such communication.
Section
9.04 Severability
of Provisions.
If
one or
more of the provisions of this Agreement shall be for any reason whatever held
invalid or unenforceable, such provisions shall be deemed severable from the
remaining covenants, agreements and provisions of this Agreement and such
invalidity or unenforceability shall in no way affect the validity or
enforceability of such remaining provisions or the rights of any parties
thereunder. To the extent permitted by law, the parties hereto hereby waive
any
provision of law that renders any provision of this Agreement invalid or
unenforceable in any respect.
Section
9.05 Inspection
and Audit Rights.
The
Servicer agrees that, on reasonable prior notice, it will permit any agent
or
representative of the Master Servicer, during the Servicer’s normal business
hours, to examine all the books of account, records, reports and other papers
of
the Servicer relating to the Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by accountants selected by the
Master Servicer, and to discuss matters relating to the Mortgage Loans with
the
Servicer’s officers, employees and accountants (and by this provision the
Servicer hereby authorizes such accountants to discuss with such agents or
representatives such matters), all at such reasonable times and as often as
may
be reasonably requested. Any expense incident to the exercise by the Master
Servicer of any right under this Section shall be borne by the Master
Servicer.
Section
9.06 Binding
Effect; No Partnership; Counterparts.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and permitted assigns of the parties hereto. Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto and the services of the Servicer shall be
rendered as an independent contractor for the Master Servicer. For the purpose
of facilitating the execution of this Agreement as herein provided and for
other
purposes, this Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original,
and
such counterparts shall constitute but one and the same instrument.
Section
9.07 Protection
of Confidential Information; No Solicitation.
The
Servicer shall keep confidential and shall not divulge to any party, without
the
Master Servicer’s prior written consent, any information pertaining to the
Mortgage Loans, the Mortgaged Properties, or the Borrowers except to the extent
that (a) it is appropriate for the Servicer to do so (i) in working with legal
counsel, auditors, other advisors, taxing authorities or other governmental
agencies, (ii) in accordance with Accepted Servicing Practices or (iii) when
required by any law, regulation, ordinance, court order or subpoena or (b)
the
Servicer is disseminating general statistical information relating to the
mortgage loans being serviced by the Servicer (including the Mortgage Loans)
so
long as the Servicer does not identify the Master Servicer or the
Borrowers.
In
addition to the foregoing, neither the Servicer nor any of its Affiliates shall
(i) provide any employee of the Servicer or its Affiliates that is directly
involved in the solicitation of borrowers in connection with the origination
of
mortgage loans by the Servicer and its Affiliates access to any reports,
documents or information in respect of any Borrower, Mortgaged Property or
Mortgage Loan which the Servicer has received pursuant to its Loan Servicing
obligations hereunder, or (ii) use any such reports, documents or information
in
connection with such solicitation of borrowers. Failure of the Servicer to
comply with its obligations under this Section shall result in an Event of
Default hereunder.
Section
9.08 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to an “Article,” “Section,” or other subdivision without reference to a
document are to the designated Article, Section or other applicable subdivision
of this Agreement;
(d) reference
to a Section, subsection, paragraph or other subdivision without further
reference to a specific Section is a reference to such Section, subsection,
paragraph or other subdivision, as the case may be, as contained in the same
Section in which the reference appears;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision;
(f) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
(g) the
Article, Section and subsection headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning of the provisions
contained therein.
Section
9.09 Further
Agreements.
The
Servicer and the Master Servicer each agree to execute and deliver to the other
such additional documents, instruments or agreements as may be reasonably
requested by the other and as may be necessary or appropriate to effectuate
the
purposes of this Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Master Servicer and the Servicer have caused this Agreement
to be duly executed by their respective officers thereunto duly authorized
as of
the date first above written.
|
IMPAC
FUNDING CORPORATION
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
(“Master
Servicer”)
|
||
|
___________________
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
(“Servicer”)
|
||
EXHIBIT
A
Servicing
File Listing
| 1) |
Copy
of executed Note (including addendums, amendments, modifications,
etc., as
they may apply), Loan Agreement and Guaranty Agreement (if
applicable).
|
| 2) |
Copy
of executed and filed Deed of Trust/Mortgage (including addendums,
amendments, modifications, etc., as they may
apply).
|
| 3) |
Copy
of Assignment of Leases and Rents and Security Agreement, if separate
from
the Deed of Trust/Mortgage.
|
| 4) |
Copy
of any other legal document(s) referenced in the Note, Deed of
Trust/Mortgage, Security Agreement, Loan Agreement or Guaranty
Agreement.
|
| 5) |
Copies
of all filed UCC Financing Statements and Lien
Searches.
|
| 6) |
Loan
Closing Statement.
|
| 7) |
Borrower
(and Guarantor, if applicable) financial and operating statements,
tax
returns, tax identification number(s), mailing address(es), phone
number(s), and fax number(s). Also include property operating and
financial statements if prepared
separately.
|
| 8) |
Special
Reserve Agreement(s), if
applicable.
|
| 9) |
Property
Information - paid tax receipts, insurance policy(ies), appraisal(s),
flood certificate(s), and environmental
reports.
|
| 10) |
Underwriting
File.
|
| 11) |
Checks/Wires
for prepaid interest, tax and insurance impounds, and special
reserves.
|
| 12) |
Lockbox
agreement(s), if applicable.
|
| 13) |
If
special arrangements have been made with the borrower and/or guarantor
that are not noted in the legal documents, a memorandum detailing
the
situation.
|
EXHIBIT
B
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
(RMBS
unless otherwise noted)
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key: X
- obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Master
Servicer
|
Trustee
|
|
General
Servicing Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
To
the extent applicable
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
X
|
|
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, "federally insured depository institution" with respect
to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
If
applicable
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
X
|
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the Servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the Servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
X
|
EXHIBIT
C
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 3.25 of the PSA. If the Trustee is indicated below as to any item,
then the Trustee is primarily responsible for obtaining that
information.
Under
Item 1 of Form 10-D: a) items marked "4.02 statement" are required to be
included in the periodic Distribution Date statement under Section 4.02 of
the
PSA, provided by the Trustee based on information received from the Master
Servicer; and b) items marked "Form 10-D report" are required to be in the
Form
10-D report but not the 4.02 statement, provided by the party indicated.
Information under all other Items of Form 10-D is to be included in the Form
10-D report.
|
Form
|
Item
|
Description
|
Responsible
Party
|
|
10-D
|
Must
be filed within 15 days of the Distribution Date.
|
||
|
1
|
Distribution
and Pool Performance Information
|
|
|
|
Item
1121(a) - Distribution and Pool Performance
Information
|
|
||
|
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
|
4.02
statement
|
||
|
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
|
4.02
statement
|
||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.02
statement
|
||
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
4.02
statement
|
||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of the
general
purpose of such payments and the party receiving such
payments.
|
4.02
statement
|
||
|
(iii)
Principal, interest and other distributions accrued and paid on the
asset-backed securities by type and by class or series and any principal
or interest shortfalls or carryovers.
|
4.02
statement
|
||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.02
statement
|
||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.02
statement
|
||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
4.02
statement
|
||
|
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
|
4.02
statement
|
||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
4.02
statement
|
||
|
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term, pool
factors and prepayment amounts.
|
4.02
statement
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||
|
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.02
statement.
Form
10-D report: Depositor
|
||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
4.02
statement
|
||
|
(11)
Any material modifications, extensions or waivers to pool asset terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
Form
10-D report; Servicer
|
||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Servicer
|
||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
4.02
statement
|
||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Depositor
Form
10-D report: Depositor
Form
10-D report: Depositor
|
||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
Depositor
|
||
|
2
|
Legal
Proceedings
|
|
|
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Seller
Depositor
Trustee
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
|
Seller
Depositor
Trustee
Trustee
Depositor
Master
Servicer
Originator
Custodian
|
||
|
3
|
Sales
of Securities and Use of Proceeds
|
|
|
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
||
|
4
|
Defaults
Upon Senior Securities
|
|
|
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
N/A
|
||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
|
|
|
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
||
|
6
|
Significant
Obligors of Pool Assets
|
|
|
|
Item
1112(b) - Significant
Obligor Financial Information*
|
N/A
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
||
|
7
|
Significant
Enhancement Provider Information
|
|
|
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
[TBD]
[TBD]
Depositor
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
||
|
8
|
Other
Information
|
|
|
|
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below
|
||
|
9
|
Exhibits
|
|
|
|
Distribution
report
|
Trustee
|
||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||
|
1.01
|
Entry
into a Material Definitive Agreement
|
|
|
|
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
Depositor
|
||
|
1.02
|
Termination
of a Material Definitive Agreement
|
|
|
|
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
Depositor
|
||
|
1.03
|
Bankruptcy
or Receivership
|
|
|
|
Disclosure
is required regarding the bankruptcy or receivership, if known to
the
Depositor, Servicer or Trustee, with respect to any of the following:
Sponsor
(Seller), Depositor, Servicer, Trustee, Swap Provider,
Custodian
|
Depositor/Servicer
|
||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
|
|
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the 4.02 statement
|
N/A
|
||
|
3.03
|
Material
Modification to Rights of Security Holders
|
|
|
|
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
Party
requesting material modification
|
||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
|
|
|
Disclosure
is required of any amendment "to the governing documents of the issuing
entity"
|
Depositor
|
||
|
5.06
|
Change
in Shell Company Status
|
|
|
|
[Not
applicable to ABS issuers]
|
Depositor
|
||
|
6.01
|
ABS
Informational and Computational Material
|
|
|
|
[Not
included in reports to be filed under Section 4.07]
|
Depositor
|
||
|
6.02
|
Change
of Master Servicer or Trustee
|
|
|
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers, certificate
administrator or trustee. Reg AB disclosure about any new servicer
or
trustee is also required.
|
Trustee
or Master Servicer
|
||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
|
|
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
||
|
6.04
|
Failure
to Make a Required Distribution
|
Trustee
|
|
|
6.05
|
Securities
Act Updating Disclosure
|
|
|
|
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
||
|
7.01
|
Regulation
FD Disclosure
|
Depositor
|
|
|
8.01
|
Other
Events
|
|
|
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
Depositor
|
||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event
|
|
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||
|
9B
|
Other
Information
|
|
|
|
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
|
15
|
Exhibits
and Financial Statement Schedules
|
|
|
|
Item
1112(b) - Significant
Obligor Financial Information
|
N/A
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
[TBD]
[TBD]
Depositor
|
||
|
Item
1117
-
Legal proceedings pending against the following entities, or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
|
|
||
|
Seller
Depositor
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
|
Seller
Depositor
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
|
||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Seller
Depositor
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
Credit
Enhancer/Support Provider, if any
Significant
Obligor, if any
|
Seller
Depositor
Trustee
(only with respect to affiliations with the sponsor, depositor or
issuing
entity)
Issuing
entity
Master
Servicer
Originator
Custodian
Depositor
Depositor
|
||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Each
Party participating in the servicing function
|
||
|
Item
1123 -Servicer Compliance Statement
|
Master
Servicer
|
||