IMPAC CMB TRUST SERIES 2001-3
Issuer
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
Indenture Trustee
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INDENTURE
Dated as of October 30, 2001
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COLLATERALIZED ASSET-BACKED BONDS
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TABLE OF CONTENTS
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Section Page
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ARTICLE I
Definitions
Section 1.01 Definitions.................................................2
Section 1.02 Incorporation by Reference of Trust Indenture Act...........2
Section 1.03 Rules of Construction.......................................2
ARTICLE II
Original Issuance of Bonds.................................................4
Section 2.01 Form........................................................4
Section 2.02 Execution, Authentication and Delivery......................4
Section 2.03 Acceptance of Mortgage Loans by Indenture Trustee...........4
Section 2.04 Acceptance of Derivative Contracts and Special
Certificate Cap Contract by Indenture Trustee...............6
Section 2.05 Conveyance of the Subsequent Mortgage Loans.................6
ARTICLE III
Covenants..................................................................9
Section 3.01 Collection of Payments With Respect to the Mortgage Loans...9
Section 3.02 Maintenance of Office or Agency.............................9
Section 3.03 Money for Payments to be Held in Trust: Paying Agent........9
Section 3.04 Existence..................................................10
Section 3.05 Payment of Principal and Interest..........................11
Section 3.06 Protection of Trust Estate.................................14
Section 3.07 Opinions as to Trust Estate................................15
Section 3.08 Performance of Obligations.................................15
Section 3.09 Negative Covenants.........................................15
Section 3.10 Annual Statement as to Compliance..........................16
Section 3.11 the Pre-funding Account....................................16
Section 3.12 Representations and Warranties Concerning the Mortgage
Loans......................................................18
Section 3.13 Amendments to Servicing Agreement..........................18
Section 3.14 Master Servicer as Agent and Bailee of the Indenture
Trustee....................................................18
Section 3.15 Investment Company Act.....................................18
Section 3.16 Issuer May Consolidate, Etc................................18
Section 3.17 Successor or Transferee....................................20
Section 3.18 No Other Business..........................................20
Section 3.19 No Borrowing...............................................20
Section 3.20 Guarantees, Loans, Advances and Other Liabilities..........21
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Section 3.21 Capital Expenditures.......................................21
Section 3.22 Determination of Bond Interest Rate........................21
Section 3.23 Restricted Payments........................................21
Section 3.24 Notice of Events of Default................................21
Section 3.25 Further Instruments and Acts...............................21
Section 3.26 Statements to Bondholders..................................21
Section 3.27 Grant of the Subsequent Mortgage Loans.....................22
Section 3.28 Certain Representations Regarding the Trust Estate.........22
Section 3.29 Replacement Derivative Contracts...........................23
Section 3.30 Allocation of Realized Losses..............................23
ARTICLE IV
the Bonds; Satisfaction and Discharge of Indenture........................25
Section 4.01 the Bonds..................................................25
Section 4.02 Registration of and Limitations On
Transfer and Exchange of Bonds; Appointment
of Bond Registrar and Certificate Registrar................25
Section 4.03 Mutilated, Destroyed, Lost or Stolen Bonds.................26
Section 4.04 Persons Deemed Owners......................................27
Section 4.05 Cancellation...............................................27
Section 4.06 Book-entry Bonds...........................................27
Section 4.07 Notices to Depository......................................28
Section 4.08 Definitive Bonds...........................................28
Section 4.09 Tax Treatment..............................................29
Section 4.10 Satisfaction and Discharge of Indenture....................29
Section 4.11 Application of Trust Money.................................30
Section 4.12 [Reserved].................................................30
Section 4.13 Repayment of Monies Held by Paying Agent...................30
Section 4.14 Temporary Bonds............................................30
Section 4.15 Representation Regarding Erisa.............................31
ARTICLE V
Default and Remedies
Section 5.01 Events of Default..........................................32
Section 5.02 Acceleration of Maturity; Rescission and Annulment.........32
Section 5.03 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee...........................33
Section 5.04 Remedies; Priorities.......................................35
Section 5.05 Optional Preservation of the Trust Estate..................36
Section 5.06 Limitation of Suits........................................36
Section 5.07 Unconditional Rights of Bondholders to Receive Principal
and Interest...............................................37
Section 5.08 Restoration of Rights and Remedies.........................37
Section 5.09 Rights and Remedies Cumulative.............................37
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Section 5.10 Delay or Omission Not a Waiver.............................38
Section 5.11 [Reserved].................................................38
Section 5.12 Waiver of Past Defaults....................................38
Section 5.13 Undertaking for Costs......................................38
Section 5.14 Xxxxxx of Stay or Extension Laws...........................38
Section 5.15 Sale of Trust Estate.......................................39
Section 5.16 Action On Bonds............................................40
Section 5.17 Performance and Enforcement of Certain Obligations.........40
ARTICLE VI
the Indenture Trustee
Section 6.01 Duties of Indenture Trustee................................42
Section 6.02 Rights of Indenture Trustee................................43
Section 6.03 Individual Rights of Indenture Trustee.....................43
Section 6.04 Indenture Trustee's Disclaimer.............................44
Section 6.05 Notice of Event of Default.................................44
Section 6.06 Reports by Indenture Trustee to Holders and Tax
Administration.............................................44
Section 6.07 Compensation and Indemnity.................................44
Section 6.08 Replacement of Indenture Trustee...........................45
Section 6.09 Successor Indenture Trustee by Merger......................45
Section 6.10 Appointment of Co-indenture Trustee or Separate
Indenture Trustee..........................................46
Section 6.11 Eligibility; Disqualification..............................47
Section 6.12 Preferential Collection of Claims Against Issuer...........47
Section 6.13 Representations and Warranties.............................47
Section 6.14 Directions to Indenture Trustee............................48
Section 6.15 the Agents.................................................48
ARTICLE VII
Bondholders' Lists and Reports
Section 7.01 Issuer to Furnish Indenture Trustee Names and
Addresses of Bondholders...................................49
Section 7.02 Preservation of Information; Communications to
Bondholders................................................49
Section 7.03 Reports of Issuer..........................................49
Section 7.04 Reports by Indenture Trustee...............................50
Section 7.05 Statements to Bondholders..................................50
ARTICLE VIII
Accounts, Disbursements and Releases
Section 8.01 Collection of Money........................................53
Section 8.02 Trust Accounts.............................................53
Section 8.03 Officer's Certificate......................................53
Section 8.04 Termination Upon Distribution to Bondholders...............54
Section 8.05 Release of Trust Estate....................................54
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Section 8.06 Surrender of Bonds Upon Final Payment......................54
Section 8.07 Optional Redemption of the Bonds...........................54
ARTICLE IX
Supplemental Indentures
Section 9.01 Supplemental Indentures Without Consent of Bondholders.....56
Section 9.02 Supplemental Indentures With Consent of Bondholders........57
Section 9.03 Execution of Supplemental Indentures.......................58
Section 9.04 Effect of Supplemental Indenture...........................59
Section 9.05 Conformity With Trust Indenture Act........................59
Section 9.06 Reference in Bonds to Supplemental Indentures..............59
ARTICLE X
Miscellaneous
Section 10.01 Compliance Certificates and Opinions.......................60
Section 10.02 Form of Documents Delivered to Indenture Trustee...........61
Section 10.03 Acts of Bondholders........................................62
Section 10.04 Notices Etc., to Indenture Trustee Issuer and Rating
Agencies...................................................62
Section 10.05 Notices to Bondholders; Waiver.............................63
Section 10.06 Conflict With Trust Indenture Act..........................63
Section 10.07 Effect of Headings.........................................64
Section 10.09 Separability...............................................64
Section 10.10 [Reserved].................................................64
Section 10.11 Legal Holidays.............................................64
Section 10.12 Governing Law..............................................64
Section 10.13 Counterparts...............................................64
Section 10.14 Recording of Indenture.....................................64
Section 10.15 Issuer Obligation..........................................64
Section 10.16 No Petition................................................65
Section 10.17 Inspection.................................................65
EXHIBITS
Exhibit A- 1 -- Form of Class A Bonds
Exhibit A- 2 -- Form of Class M and Class B Bonds
Exhibit B -- Mortgage Loan Schedule
Exhibit C -- Form of Initial Certification
Exhibit D -- Form of Final Certification
Exhibit E -- Derivative Contracts
Exhibit F -- Special Certificate Cap Contract
Exhibit G -- Addition Notice
Exhibit H -- Subsequent Transfer Instrument
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Appendix A -- Definitions
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This Indenture, dated as of October 30, 2001, is entered into between
Impac CMB Trust Series 2001-3, a Delaware business trust, as Issuer (the
"Issuer"), and Bankers Trust Company of California, N.A., a national banking
association, as Indenture Trustee (the "Indenture Trustee").
WITNESSETH THAT:
Each party hereto agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the Issuer's
Collateralized Asset-Backed Bonds, Series 2001-3 (the "Bonds").
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date,
as trustee for the benefit of the Holders of the Bonds, all of the Issuer's
right, title and interest in and to whether now existing or hereafter created by
(a) the Mortgage Loans, Eligible Substitute Mortgage Loans and the proceeds
thereof and all rights under the Related Documents; (b) all funds on deposit
from time to time in the Collection Account allocable to the Mortgage Loans
excluding any investment income from such funds; (c) all funds on deposit from
time to time in the Payment Account and in all proceeds thereof, (d) all funds
on deposit from time to time in the Pre-Funding Account and in all proceeds
thereof; (e) all rights under (i) the Mortgage Loan Sale and Contribution
Agreement as assigned to the Issuer, with respect to the Initial Mortgage Loans,
and the Subsequent Mortgage Loan Sale and Contribution Agreement as assigned to
the Issuer, with respect to the Subsequent Mortgage Loans, (ii) the Servicing
Agreement and any Subservicing Agreements, (iii) any title, hazard and primary
insurance policies with respect to the Mortgaged Properties, (iv) the rights
with respect to the Derivative Contracts and the Special Certificate Cap
Contract as assigned to the Issuer; and (f) all present and future claims,
demands, causes and chooses in action in respect of any or all of the foregoing
and all payments on or under, and all proceeds of every kind and nature
whatsoever in respect of, any or all of the foregoing and all payments on or
under, and all proceeds of every kind and nature whatsoever in the conversion
thereof, voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, checks,
deposit accounts, rights to payment of any and every kind, and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Trust Estate" or the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Bonds, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, as trustee on behalf of the Holders of the
Bonds, acknowledges such Grant, accepts the trust under this Indenture in
accordance with the provisions hereof and agrees to perform its duties as
Indenture Trustee as required herein.
ARTICLE I
Definitions
Section 1.01 DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions attached hereto as Appendix A which is
incorporated by reference herein. All other capitalized terms used herein shall
have the meanings specified herein.
Section 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the Trust Indenture Act (the "TIA"), the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Bonds.
"indenture security holder" means a Bondholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rules and
have the meanings assigned to them by such definitions.
Section 1.03 RULES OF CONSTRUCTION. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in the
plural include the singular;
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(vi) any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
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ARTICLE II
Original Issuance of Bonds
Section 2.01 FORM. The Class A Bonds, and Class M Bonds and Class B Bonds,
together with the Indenture Trustee's certificate of authentication, shall be in
substantially the form set forth in Exhibits A-1 and A-2 to this Indenture,
respectively, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture.
The Bonds shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders).
The terms of the Bonds set forth in Exhibits A-1 and A-2 to this Indenture
are part of the terms of this Indenture.
Section 2.02 EXECUTION, AUTHENTICATION AND DELIVERY. The Bonds shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Bonds may be manual or
facsimile.
Bonds bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Bonds or did not hold
such offences at the date of such Bonds.
The Indenture Trustee shall upon Issuer Request authenticate and deliver
the Class A-1, Class A-2, Class M-1, Class M-2 and Class B-2 Bonds for original
issue in an aggregate initial principal amount of $397,000,000. The Class A-1
Bonds shall be issued in an aggregate initial principal amount of $260,000,000,
the Class A-2 Bonds shall be issued in an aggregate initial principal amount of
$64,000,000, the Class M-1 Bonds shall be issued in an aggregate initial
principal amount of $32,000,000, the Class M-2 Bonds shall be issued in an
aggregate initial principal amount of $21,000,000 and the Class B Bonds shall be
issued in an aggregate initial principal amount of $20,000,000.
Each of the Bonds shall be dated the date of its authentication. The Bonds
shall be issuable as registered Bonds and the Bonds shall be issuable in the
minimum initial Bond Principal Balances of $25,000 and in integral multiples of
$1 in excess thereof.
No Bond shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Bond a certificate
of authentication substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its authorized signatories,
and such certificate upon any Bond shall be conclusive evidence, and the only
evidence, that such Bond has been duly authenticated and delivered hereunder.
Section 2.03 ACCEPTANCE OF MORTGAGE LOANS BY INDENTURE TRUSTEE. (a) The
Indenture Trustee acknowledges receipt of, subject to the exceptions it notes
pursuant to the procedures described below, the documents (or certified copies
thereof) referred to in Section 2.1(b) of the (i)
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Mortgage Loan Sale and Contribution Agreement and (ii) the Subsequent Mortgage
Loan Sale and Contribution Agreement, and declares that it holds and will
continue to hold those documents and any amendments, replacements or supplements
thereto and all other assets of the Trust Estate as Indenture Trustee in trust
for the use and benefit of all present and future Holders of the Bonds. No later
than 45 days after the Closing Date, with respect to the Initial Mortgage Loans,
or the Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans,
(or, with respect to any Eligible Substitute Mortgage Loan, within 5 days after
the receipt by the Indenture Trustee thereof and, with respect to any documents
received beyond 45 days after the Closing Date or Subsequent Transfer Date, as
applicable, promptly thereafter), the Indenture Trustee agrees, for the benefit
of the Bondholders, to review each Mortgage File delivered to it and to execute
and deliver, or cause to be executed and delivered, to the Seller and the Master
Servicer an Initial Certification in the form annexed hereto as Exhibit C. In
conducting such review, the Indenture Trustee will ascertain whether all
required documents described in Section 2.1(b) of (i) the Mortgage Loan Sale and
Contribution Agreement, with respect to the Initial Mortgage Loans, and (ii) the
Subsequent Mortgage Loan Sale and Contribution Agreement, with respect to the
Subsequent Mortgage Loans, have been executed and received and whether those
documents relate, determined on the basis of the Mortgagor name, original
principal balance and loan number, to the Mortgage Loans it has received, as
identified in Exhibit B to this Indenture, as supplemented (PROVIDED, HOWEVER,
that with respect to those documents described therein, the Indenture Trustee's
obligations shall extend only to documents actually delivered pursuant to such
subclause). In performing any such review, the Indenture Trustee may
conclusively rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon. If the
Indenture Trustee finds any document constituting part of the Mortgage File not
to have been executed or received, or to be unrelated to the Mortgage Loans
identified in Exhibit B to this Indenture or to appear to be defective on its
face, the Indenture Trustee shall promptly notify the Seller of such finding and
the Seller's obligation to cure such defect or repurchase or substitute for the
related Mortgage Loan.
(b) No later than 180 days after the Closing Date (with respect to the
Initial Mortgage Loans) and Subsequent Transfer Date (with respect to the
Subsequent Mortgage Loans), the Indenture Trustee will review, for the benefit
of the Bondholders, the Mortgage Files and will execute and deliver or cause to
be executed and delivered to the Seller, a Final Certification in the form
annexed hereto as Exhibit D. In conducting such review, the Indenture Trustee
will ascertain whether an original of each document described in subclauses
(b)(ii)-(iv) of Section 2.1 of (i) the Mortgage Loan Sale and Contribution
Agreement, with respect to the Initial Mortgage Loans, and (ii) the Subsequent
Mortgage Loan Sale and Contribution Agreement, with respect to the Subsequent
Mortgage Loans, required to be recorded has been returned from the recording
office with evidence of recording thereon or a certified copy has been obtained
from the recording office. If the Indenture Trustee finds any document
constituting part of the Mortgage File has not been received, or to be
unrelated, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans identified in Exhibit B to this
Indenture or to appear defective on its face, the Indenture Trustee shall
promptly notify the Seller.
(c) Upon deposit of the Repurchase Price in the Payment Account, the
Indenture Trustee shall release to the Seller the related Mortgage File and
shall execute and deliver all instruments of transfer or assignment, without
recourse, furnished to it by the Seller as are necessary to vest in the Seller
title to and rights under the related Mortgage Loan. Such purchase shall be
deemed to have
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occurred on the date on which certification of the deposit of the Repurchase
Price in the Payment Account was received by the Indenture Trustee. The
Indenture Trustee shall amend the applicable Mortgage Loan Schedule to reflect
such repurchase and shall promptly notify the Master Servicer and the Rating
Agencies of such amendment
Section 2.04 ACCEPTANCE OF DERIVATIVE CONTRACTS AND SPECIAL CERTIFICATE CAP
CONTRACT BY INDENTURE TRUSTEE. (a) The Indenture Trustee acknowledges receipt of
the Derivative Contracts and the Special Certificate Cap Contract and declares
that it holds and will continue to hold these documents and any amendments
replacements or supplements thereto and all other assets of the Trust Estate as
Indenture Trustee in trust for the use and benefit of all present and future
Holders of the Bonds. The Indenture Trustee shall enforce the Derivative
Contracts and the Special Certificate Cap Contract in accordance with their
terms.
Section 2.05 CONVEYANCE OF THE SUBSEQUENT MORTGAGE LOANS. (a) Subject to
the conditions set forth in paragraph (b) below and in consideration of the
Indenture Trustee's delivery on the Subsequent Transfer Dates, to or upon the
written order of the Depositor of, all or a portion of the balance of funds in
the Pre-Funding Account, the Depositor shall on any Subsequent Transfer Date
sell, transfer, assign, set over and convey without recourse to the Trust Estate
but subject to the other terms and provisions of this Agreement all of the
right, title and interest of the Depositor in and to (i) the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule attached to the related
Subsequent Transfer Instrument delivered by the Depositor on such Subsequent
Transfer Date, (ii) all interest accruing thereon on and after the Subsequent
Cut-off Date and all collections in respect of interest and principal due after
the Subsequent Cut-off Date and (iii) all items with respect to such Subsequent
Mortgage Loans to be delivered pursuant to Section 2.03 and the other items in
the related Mortgage Files; provided, however, that the Depositor reserves and
retains all right, title and interest in and to principal received and interest
accruing on the Subsequent Mortgage Loans prior to the related Subsequent
Cut-off Date. The transfer to the Indenture Trustee for deposit in the Mortgage
Pool by the Depositor of the Subsequent Mortgage Loans identified on the
Mortgage Loan Schedule shall be absolute and is intended by the Depositor, the
Master Servicer, the Indenture Trustee and the Bondholders to constitute and to
be treated as a sale of the Subsequent Mortgage Loans by the Depositor to the
Trust Estate. The related Mortgage File for each Subsequent Mortgage Loan shall
be delivered to the Indenture Trustee at least three (3) Business Days prior to
the related Subsequent Transfer Date.
The purchase price paid by the Indenture Trustee from amounts released from
the Pre-Funding Account shall be one-hundred percent (100%) of the aggregate
Stated Principal Balance of the Subsequent Mortgage Loans so transferred (as
identified on the Mortgage Loan Schedule provided by the Depositor).
(b) The Depositor shall transfer to the Indenture Trustee for deposit in
the mortgage pool the Subsequent Mortgage Loans and the other property and
rights related thereto as described in paragraph (a) above, and the Indenture
Trustee shall release funds from the Pre-Funding Account, only upon the
satisfaction of each of the following conditions on or prior to the related
Subsequent Transfer Date:
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(i) the Depositor shall have provided the Indenture Trustee and the
Rating Agencies with a timely Addition Notice and shall have provided any
information reasonably requested by the Indenture Trustee with respect to
the Subsequent Mortgage Loans;
(ii) the Depositor shall have delivered to the Indenture Trustee a
duly executed Subsequent Transfer Instrument, which shall include a
Mortgage Loan Schedule listing the Subsequent Mortgage Loans, and the
Master Servicer, in its capacity as Originator, shall have delivered a
computer file containing such Mortgage Loan Schedule to the Indenture
Trustee at least three (3) Business Days prior to the related Subsequent
Transfer Date;
(iii) as of each Subsequent Transfer Date, as evidenced by delivery of
the Subsequent Transfer Instrument, substantially in the form of Exhibit H,
the Depositor shall not be insolvent nor shall it have been rendered
insolvent by such transfer nor shall it be aware of any pending insolvency;
(iv) such sale and transfer shall not result in a material adverse tax
consequence to the Trust Estate or the Bondholders;
(v) the Funding Period shall not have terminated;
(vi) the Depositor shall not have selected the Subsequent Mortgage
Loans in a manner that it believed to be adverse to the interests of the
Bondholders;
(vii) the Depositor shall have delivered to the Indenture Trustee a
Subsequent Transfer Instrument confirming the satisfaction of the
conditions precedent specified in this Section 2.05 and, pursuant to the
Subsequent Transfer Instrument, assigned to the Indenture Trustee without
recourse for the benefit of the Bondholders all the right, title and
interest of the Depositor, in, to and under the Subsequent Mortgage Loan
Purchase Agreement, to the extent of the Subsequent Mortgage Loans; and
(viii) the Depositor shall have delivered to the Indenture Trustee an
Opinion of Counsel addressed to the Indenture Trustee and the Rating
Agencies with respect to the transfer of the Subsequent Mortgage Loans
substantially in the form of the Opinion of Counsel delivered to the
Indenture Trustee on the Closing Date regarding the true sale of the
Subsequent Mortgage Loans.
(c) The obligation of the Trust Estate to purchase a Subsequent Mortgage
Loan on any Subsequent Transfer Date is subject to the satisfaction of the
conditions set forth in the immediately following paragraph and the accuracy of
the following representations and warranties with respect to each such
Subsequent Mortgage Loan determined as of the applicable Subsequent Cut-off
Date: (i) such Subsequent Mortgage Loan may not be 30 or more days delinquent as
of the last day of the month preceding the Subsequent Cut-off Date; (ii) the
original term to stated maturity of such Subsequent Mortgage Loan will not be
less than 170 months and will not exceed 360 months; (iii) each Subsequent
Mortgage Loan must be an adjustable rate mortgage loan with a first lien or a
fixed- rate loan with a second lien; (iv) if the Subsequent Mortgage Loan has a
loan-to-value ratio greater than 80.00%, it is covered by a Primary Insurance
Policy or the Radian Lender-Paid PMI Policy; (v)
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no Subsequent Mortgage Loan will have a first payment date occurring before
January 1, 2001 or after February 1, 2002; (vi) the latest maturity date of any
Subsequent Mortgage Loan will be no later than January, 2032; (vii) none of the
Subsequent Mortgage Loans will be buydown loans; (viii) no Subsequent Mortgage
Loan will have a credit score of less than 600; (ix) the Subsequent Mortgage
Loan will have a Mortgage Rate ranging from aproximately 3.625% per annum to
approximately 17.00% per annum; and (x) such Subsequent Mortgage Loan shall have
been underwritten in accordance with the criteria set forth under "The Mortgage
Pool--Underwriting Standards" in the Prospectus Supplement.
(d) In addition, following the purchase of any Subsequent Mortgage Loan by
the Trust, the Subsequent Mortgage Loans will as of the Subsequent Cut-off Date:
(i) have no more than 0.90% of the Subsequent Mortgage Loans be balloon loans;
(ii) have a weighted average Mortgage Rate of approximately 7.165%; (iii) will
consist of Mortgage Loans with Prepayment Charges representing no less than
approximately 58.28% of the Pool Balance; (iv) have no more than approximately
1% of the Subsequent Mortgage Loans (by aggregate Stated Principal Balance as of
the Subsequent Cut- off Date) be secured by Mortgaged Properties located in any
one zip code; (v) have a weighted average credit score of approximately 681;
(vii) not have more than 71% of such Mortgage Loans concentrated in the states
of California; (viii) no less than 92.06% of the Mortgaged Properties be owner
occupied; (ix) no less than 68.16% of the Mortgaged Properties be single family
detached; and (x) no more than 22.36% of the Mortgage Loans be cashout
refinance.
(e) Notwithstanding the foregoing, any Subsequent Mortgage Loan may be
rejected by any Rating Agency if the inclusion of any such Subsequent Mortgage
Loan would adversely affect the ratings of any Class of Certificates. At least
one (1) Business Day prior to the Subsequent Transfer Date, each Rating Agency
shall notify the Indenture Trustee as to which Subsequent Mortgage Loans, if
any, shall not be included in the transfer on the Subsequent Transfer Date;
provided, however, that the Master Servicer, in its capacity as Originator,
shall have delivered to each Rating Agency at least three (3) Business Days
prior to such Subsequent Transfer Date a computer file acceptable to each Rating
Agency describing the characteristics specified in paragraphs (c) and (d) above.
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ARTICLE III
Covenants
Section 3.01 COLLECTION OF PAYMENTS WITH RESPECT TO THE MORTGAGE LOANS. The
Indenture Trustee shall establish and maintain an Eligible Account (the "Payment
Account") in which the Indenture Trustee shall, subject to the terms of this
paragraph, deposit, on the same day as it is received from the Master Servicer,
each remittance received by the Indenture Trustee with respect to the Mortgage
Loans. The Indenture Trustee shall make all payments of principal of and
interest on the Bonds, subject to Section 3.03 as provided in Section 3.05
herein from monies on deposit in the Payment Account.
Section 3.02 MAINTENANCE OF OFFICE OR AGENCY. The Issuer will maintain an
office or agency where, subject to satisfaction of conditions set forth herein,
Bonds maybe surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the Bonds and this
Indenture may be served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. If at any time the
Issuer shall fail to maintain any such office or agency or shall fail to furnish
the Indenture Trustee with the address thereof, such surrenders may be made at
the office of the Indenture Trustee located at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and notices and demands may be made or served at the Corporate
Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent
to receive all such surrenders, notices and demands.
Section 3.03 MONEY FOR PAYMENTS TO BE HELD IN TRUST: PAYING AGENT. (a) As
provided in Section 3.01, all payments of amounts due and payable with respect
to any Bonds that are to be made from amounts withdrawn from the Payment Account
pursuant to Section 3.01 shall be made on behalf of the Issuer by the Indenture
Trustee or by the Paying Agent, and no amounts so withdrawn from the Payment
Account for payments of Bonds shall be paid over to the Issuer except as
provided in this Section 3.03. The Issuer hereby appoints the Indenture Trustee
as its Paying Agent.
The Issuer will cause each Paying Agent other than the Indenture Trustee to
execute and deliver to the Indenture Trustee an instrument in which such Paying
Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts
as Paying Agent it hereby so agrees), subject to the provisions of this Section
3.03, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Bonds in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer of which it has actual knowledge in the making of any payment
required to be made with respect to the Bonds;
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(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Bonds if
at any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Bonds of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith; and
(vi) not commence a bankruptcy proceeding against the Issuer in
connection with this Indenture.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Request
direct any Paying Agent to pay to the Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money held
by the Indenture Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Bond and remaining unclaimed for one year after
such amount has become due and payable shall be discharged from such trust and
be paid to the Issuer on Issuer Request; and the Holder of such Bond shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; PROVIDED, HOWEVER, that the indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
an Authorized Newspaper published in the English language, notice that such
money remains unclaimed and that, after a date specified therein which shall not
be less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Issuer. The Indenture Trustee
may also adopt and employ, at the expense and direction of the Issuer, any other
reasonable means of notification of such repayment (including, but not limited
to, mailing notice of such repayment to Holders whose Bonds have been called but
have not been surrendered for redemption or whose right to or interest in monies
due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for each
such Holder).
Section 3.04 EXISTENCE. The Issuer will keep in full effect its existence,
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification
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to do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the
Bonds, the Mortgage Loans and each other instrument or agreement included in the
Trust Estate.
Section 3.05 PAYMENT OF PRINCIPAL AND INTEREST. (a) On each Payment Date
from amounts on deposit in the Payment Account in accordance with Section 8.02
hereof, the Indenture Trustee shall pay to the Persons specified in clauses (b)
and (c) below, to the extent provided therein, the Available Funds for such
Payment Date.
(b) On each Payment Date, the portion of the Available Funds consisting of
the Interest Remittance Amount shall be distributed in the following order of
priority, in each case to the extent of the Interest Remittance Amount:
(i) to the Holders of the Class A-1 Bonds, the related Accrued
Bond Interest for such Class for such Payment Date;
(ii) to the Holders of the Class A-1 Bonds, the related Unpaid
Interest Shortfall, if any, for such Class for such Payment Date;
(iii) to the Holders of the Class A-2 Bonds, the related Accrued
Bond Interest for such Class for such Payment Date;
(iv) to the Holders of the Class A-2 Bonds, the related Unpaid
Interest Shortfall for such Class for such Payment Date;
(v) to the Holders of the Class M-1 Bonds, the related Accrued
Bond Interest for such Class for such Payment Date;
(vi) to the Holders of the Class M-2 Bonds, the related Accrued
Bond Interest for such Class for such Payment Date; and
(vii) to the Holders of the Class B Bonds, the related Accrued
Bond Interest for such Class for such Payment Date.
(c) On each Payment Date, the Holders of each Class of Bonds shall be
entitled to receive distributions in respect of principal to the extent of the
Principal Distribution Amount on a pro rata basis, based on the Bond Principal
Balance thereof, in reduction of the Bond Principal Balance thereof, until the
Bond Principal Balances thereof have been reduced to zero. An allocation of
principal distributions on a "pro rata" basis among various Classes of Bonds
means an allocation to each of those Classes of Bonds on the basis of its then
outstanding Bond Principal Balance prior to giving effect to distributions to be
made on that Payment Date.
(d) On each Payment Date, any Net Monthly Excess Cashflow shall be paid as
follows:
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(i) to the Holders of the Class or Classes of Bonds then entitled
to receive distributions in respect of principal, in an amount equal to any
Extra Principal Distribution Amount, payable to such Holders as part of the
Principal Distribution Amount as described in clause (c) above;
(ii) to the Holders of the Class A-2 Bonds, in an amount equal to
the Allocated Realized Loss Amount for the Class A-2 Bonds;
(iii) to the Holders of the Class M-1 Bonds, in an amount equal
to the Unpaid Interest Shortfall for such Bonds;
(iv) to the Holders of the Class M-1 Bonds, in an amount equal to
the Allocated Realized Loss Amount for the Class M-1 Bonds;
(v) to the Holders of the Class M-2 Bonds, in an amount equal to
the Unpaid Interest Shortfall for such Bonds;
(vi) to the Holders of the Class M-2 Bonds, in an amount equal to
the Allocated Realized Loss Amount for the Class M-2 Bonds;
(vii) to the Holders of the Class B Bonds, in an amount equal to
the Unpaid Interest Shortfall for such Bonds;
(viii) to the Holders of the Class B Bonds, in an amount equal to
the Allocated Realized Loss Amount for the Class B Bonds;
(ix) to the holders of the Class A-1 Bonds, Class A-2 Bonds,
Class M-1 Bonds, Class M-2 Bonds and Class B Bonds, in that order, any
Basis Risk Shortfall Carry- Forward Amount for such payment date, to the
extent not covered by the Derivative Contracts;
(x) to the Indenture Trustee for amounts owing the Indenture
Trustee hereunder (other than the Indenture Trustee Fee) remaining unpaid;
and
(xi) any remaining amounts will be distributed to the Certificate
Paying Agent, as designee of the Issuer, for the benefit of the Holders of
the Trust Certificates.
(e) On each Payment Date, the Net Derivative Contract Payment Amount with
respect to such Payment Date shall be distributed in the following order of
priority, in each case to the extent of amounts available:
(i) first, to the Class A-1 Bondholders, any Basis Risk Shortfall
Carry- Forward Amount for such Payment Date;
(ii) second, to the Class A-2 Bondholders, any Basis Risk
Shortfall Carry- Forward Amount for such Payment Date;
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(iii) third, to the Class M-1 Bondholders, any Basis Risk
Shortfall Carry-Forward Amount for such Payment Date;
(iv) fourth, to the Class M-2 Bondholders, any Basis Risk
Shortfall Carry-Forward Amount for such Payment Date;
(v) fifth, to the Class B Bondholders, any Basis Risk Shortfall
Carry-Forward Amount for such Payment Date; and
(vi) sixth, any remaining amounts will be distributed to the
Certificate Paying Agent, as designee of the Issuer, for the benefit of the
Holders of the Trust Certificates.
(f) On each Payment Date any amounts received in respect of the Special
Certificate Cap Contract shall be distributed to the Certificate Paying Agent,
as designee of the Issuer, for the benefit of the Holders of the Trust
Certificates.
(g) Each distribution with respect to a Book-Entry Bond shall be paid to
the Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the Bond
Owners that it represents and to each indirect participating brokerage firm (a
"brokerage firm" or "indirect participating firm") for which it acts as agent.
Each brokerage firm shall be responsible for disbursing funds to the Bond Owners
that it represents. None of the Indenture Trustee, the Bond Registrar, the
Paying Agent, the Depositor or the Master Servicer shall have any responsibility
therefor except as otherwise provided by this Indenture or applicable law.
(h) On each Payment Date, the Certificate Paying Agent shall deposit in the
Certificate Distribution Account all amounts it received pursuant to this
Section 3.05 for the purpose of distributing such funds to the
Certifrcateholders.
(i) Any installment of interest or principal, if any, payable on any Bond
that is punctually paid or duly provided for by the Issuer on the applicable
Payment Date shall, if such Holder shall have so requested at least five
Business Days prior to the related Record Date, be paid to each Holder of record
on the preceding Record Date, by wire transfer to an account specified in
writing by such Holder reasonably satisfactory to the Indenture Trustee as of
the preceding Record Date or in all other cases or if no such instructions have
been delivered to the Indenture Trustee, by check to such Bondholder mailed to
such Holder's address as it appears in the Bond Register in the amount required
to be distributed to such Holder on such Payment Date pursuant to such Holder's
Bonds; PROVIDED, HOWEVER, that the Indenture Trustee shall not pay to such
Holders any amount required to be withheld from a payment to such Holder by the
Code.
(j) The principal of each Bond shall be due and payable in full on the
Final Scheduled Payment Date for such Bond as provided in the forms of Bond set
forth in Exhibits A-1 and A-2 to this Indenture. All principal payments on the
Bonds shall be made to the Bondholders entitled thereto in accordance with the
Percentage Interests represented by such Bonds. Upon notice to the Indenture
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Trustee by the Issuer, the Indenture Trustee shall notify the Person in whose
name a Bond is registered at the close of business on the Record Date preceding
the Final Scheduled Payment Date or other final Payment Date (including any
final Payment Date resulting from any redemption pursuant to Section 8.07
hereof). Such notice shall to the extent practicable be mailed no later than
five Business Days prior to such Final Scheduled Payment Date or other final
Payment Date and shall specify that payment of the principal amount and any
interest due with respect to such Bond at the Final Scheduled Payment Date or
other final Payment Date will be payable only upon presentation and surrender of
such Bond and shall specify the place where such Bond may be presented and
surrendered for such final payment. No interest shall accrue on the Bonds on or
after the Final Scheduled Payment Date or any such other final Payment Date.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to sign any financing statement, continuation statement or
other instrument required to be signed pursuant to this Section 3.05 upon the
Issuer's preparation thereof and delivery to the Indenture Trustee.
Section 3.06 PROTECTION OF TRUST ESTATE. (a) The Issuer will from time to
time prepare, execute and deliver all such supplements and amendments hereto and
all such financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) cause the Issuer or Master Servicer to enforce any of the
rights to the Mortgage Loans; or
(iv) preserve and defend title to the Trust Estate and the rights
of the Indenture Trustee and the Bondholders in such Trust Estate against
the claims of all persons and parties.
(b) Except as otherwise provided in this Indenture, the Indenture Trustee
shall not remove any portion of the Trust Estate that consists of money or is
evidenced by an instrument, certificate or other writing from the jurisdiction
in which it was held at the date of the most recent Opinion of Counsel delivered
pursuant to Section 3.07 hereof (or from the jurisdiction in which it was held
as described in the Opinion of Counsel delivered on the Closing Date pursuant to
Section 3.07(a) hereof, or if no Opinion of Counsel has yet been delivered
pursuant to Section 3.07(b) hereof, unless the Indenture Trustee shall have
first received an Opinion of Counsel to the effect that the lien and security
interest created by this Indenture with respect to such property will continue
to be maintained after giving effect to such action or actions).
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to sign any financing statement, continuation statement or
other instrument required to be signed pursuant to this Section 3.06 upon the
Issuer's preparation thereof and delivery to the Indenture Trustee.
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Section 3.07 OPINIONS AS TO TRUST ESTATE. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee and the Owner Trustee an Opinion
of Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto, and any other requisite documents, and with
respect to the execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the lien and first
priority security interest in the Collateral and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action is
necessary to make such lien and first priority security interest effective.
(b) On or before April 15 in each calendar year, beginning in 2002, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel at the
expense of the Issuer either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re- recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain the
lien and first priority security interest in the Collateral and reciting the
details of such action or stating that in the opinion of such counsel no such
action is necessary to maintain such lien and security interest. Such Opinion of
Counsel shall also describe the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest in the Collateral until December 31
in the following calendar year.
Section 3.08 PERFORMANCE OF OBLIGATIONS. (a) The Issuer will punctually
perform and observe all of its obligations and agreements contained in this
Indenture, the Basic Documents and in the instruments and agreements included in
the Trust Estate.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer.
(c) The Issuer will not take any action or permit any action to be taken by
others which would release any Person from any of such Person's covenants or
obligations under any of the documents relating to the Mortgage Loans or under
any instrument included in the Trust Estate, or which would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any of the documents relating to the Mortgage
Loans or any such instrument, except such actions as the Master Servicer is
expressly permitted to take in the Servicing Agreement. The Indenture Trustee,
as pledgee of the Mortgage Loans, shall be able to exercise the rights of the
Issuer to direct the actions of the Master Servicer pursuant to the Servicing
Agreement.
Section 3.09 NEGATIVE COVENANTS. So long as any Bonds are Outstanding, the
Issuer shall not:
(i) except as expressly permitted by this Indenture, sell,
transfer, exchange or otherwise dispose of the Trust Estate, unless
directed to do so by the Indenture Trustee;
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(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Bonds (other than amounts
properly withheld from such payments under the Code) or assert any claim
against any present or former Bondholder by reason of the payment of the
taxes levied or assessed upon any part of the Trust Estate;
(iii) (A) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person
to be released from any covenants or obligations with respect to the Bonds
under this Indenture except as may be expressly permitted hereby, (B)
permit any lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture) to be created on
or extend to or otherwise arise upon or burden the Trust Estate or any part
thereof or any interest therein or the proceeds thereof or (C) permit the
lien of this Indenture not to constitute a valid first priority security
interest in the Trust Estate; or
(iv) waive or impair, or fail to assert rights under, the
Mortgage Loans, or impair or cause to be impaired the Issuer's interest in
the Mortgage Loans, the Mortgage Loan Sale and Contribution Agreement or in
any Basic Document, if any such action would materially and adversely
affect the interests of the Bondholders.
Section 3.10 ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will deliver to
the Indenture Trustee, within 120 days after the end of each fiscal year (which,
for the Issuer, is the calendar year) of the Issuer (commencing with the fiscal
year 2001), an Officer's Certificate stating, as to the Authorized Officer
signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year and
of its performance under this Indenture has been made under such Authorized
Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer has complied with all conditions and covenants
under this Indenture throughout such year, or, if there has been a default
in its compliance with any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and status thereof.
Section 3.11 THE PRE-FUNDING ACCOUNT. (a) No later than the Closing Date,
the Indenture Trustee shall establish and maintain a segregated trust account
that is an Eligible Account, which shall be titled "Pre-Funding Account, Bankers
Trust Company of California, National Association, as indenture trustee for the
registered holders of IMH Assets Corp., Collateralized Asset-Backed Bonds,
Series 2001-3" (the "Pre-Funding Account"). The Indenture Trustee shall,
promptly upon receipt, deposit in the Pre-Funding Account and retain therein the
Original Pre-Funded Amount remitted on the Closing Date to the Indenture Trustee
by the Depositor. Funds deposited in the Pre-Funding Account shall be held in
trust by the Indenture Trustee for the Bondholders for the uses and purposes set
forth herein.
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(b) The Indenture Trustee will invest funds deposited in the Pre-Funding
Account, as directed by the Master Servicer in writing, in Eligible Investments
with a maturity date (i) no later than the Business Day immediately preceding
the date on which such funds are required to be withdrawn from such account
pursuant to this Indenture, if a Person other than the Indenture Trustee or an
Affiliate manages or advises such investment, (ii) no later than the date on
which such funds are required to be withdrawn from such account pursuant to this
Indenture, if the Indenture Trustee or an Affiliate manages or advises such
investment or (iii) within one (1) Business Day of the Indenture Trustee's
receipt thereof. For federal income tax purposes, the Master Servicer shall be
the owner of the Pre-Funding Account and shall report all items of income,
deduction, gain or loss arising therefrom. All income and gain realized from
investment of funds deposited in the Pre-Funding Account shall be included in
Available Funds at the following times: (i) on the Business Day immediately
preceding each Payment Date, if a Person other than the Indenture Trustee or an
Affiliate of the Indenture Trustee manages or advises such investment, or on
each Payment Date, if the Indenture Trustee or an Affiliate of the Indenture
Trustee manages or advises such investment, (ii) on the Business Day immediately
preceding each Subsequent Transfer Date, if a Person other than the Indenture
Trustee or an Affiliate of the Indenture Trustee manages or advises such
investment, or on each Subsequent Transfer Date, if the Indenture Trustee or an
Affiliate of the Indenture Trustee manages or advises such investment or (iii)
within one (1) Business Day of the Indenture Trustee's receipt thereof. The
Master Servicer shall deposit in the Pre-Funding Account the amount of any net
loss incurred in respect of any such Eligible Investment immediately upon
realization of such loss without any right of reimbursement therefor.
(c) Amounts on deposit in the Pre-Funding Account shall be withdrawn by the
Indenture Trustee as follows:
(i) On any Subsequent Transfer Date, the Indenture Trustee shall
withdraw from the Pre-Funding Account an amount equal to 100% of the Stated
Principal Balances of the Subsequent Mortgage Loans transferred and assigned to
the Indenture Trustee for deposit in the Mortgage Pool on such Subsequent
Transfer Date and pay such amount to or upon the order of the Issuer upon
satisfaction of the conditions set forth in Section 2.05 with respect to such
transfer and assignment;
(ii) If the amount on deposit in the Pre-Funding Account has not been
reduced to zero during the Funding Period, on the day immediately following the
termination of the Funding Period, the Indenture Trustee shall deposit into the
Payment Account any amounts remaining in the Pre-Funding Account for
distribution in accordance with the terms hereof;
(iii) To withdraw any amount not required to be deposited in the
Pre-Funding Account or deposited therein in error; and
(iv) To clear and terminate the Pre-Funding Account upon the earlier
to occur of (A) the Payment Date immediately following the end of the Funding
Period and (B) the termination of this Indenture, with any amounts remaining on
deposit therein being paid to the Holders of the Bonds then entitled to
distributions in respect of principal.
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Section 3.12 REPRESENTATIONS AND WARRANTIES CONCERNING THE MORTGAGE LOANS.
The Indenture Trustee, as pledgee of the Mortgage Loans, has the benefit of the
representations and warranties made by the Seller in (i) the Mortgage Loan Sale
and Contribution Agreement concerning the Seller and the Initial Mortgage Loans
and (ii) the Subsequent Mortgage Loan Sale and Contribution Agreement concerning
the Seller and the Subsequent Mortgage Loans, and the Mortgage Loan Sale and
Contribution Agreement and the Subsequent Mortgage Loan Sale and Contribution
Agreement to the same extent as though such representations and warranties were
made directly to the Indenture Trustee. If a Responsible Officer of the
Indenture Trustee has actual knowledge of any breach of any representation or
warranty made by the Seller in the Mortgage Loan Sale and Contribution Agreement
or in the Subsequent Mortgage Loan Sale and Contribution Agreement, the
Indenture Trustee shall promptly notify the Seller of such finding and the
Seller's obligation to cure such defect or repurchase or substitute for the
related Mortgage Loan.
Section 3.13 AMENDMENTS TO SERVICING AGREEMENT. The Issuer covenants with
the Indenture Trustee that it will not enter into any amendment or supplement to
the Servicing Agreement without the prior written consent of the Indenture
Trustee.
Section 3.14 MASTER SERVICER AS AGENT AND BAILEE OF THE INDENTURE TRUSTEE.
Solely for purposes of perfection under Section 9-305 of the Uniform Commercial
Code or other similar applicable law, rule or regulation of the state in which
such property is held by the Master Servicer, the Issuer and the Indenture
Trustee hereby acknowledge that the Master Servicer is acting as badge of the
Indenture Trustee in holding amounts on deposit in the Collection Account, as
well as its bailee in holding any Related Documents released to the Master
Servicer, and any other items constituting a part of the Trust Estate which from
time to time come into the possession of the Master Servicer. It is intended
that, by the Master Servicer's acceptance of such bailee arrangement, the
Indenture Trustee, as a secured party of the Mortgage Loans, will be deemed to
have possession of such Related Documents, such monies and such other items for
purposes of Section 9-305 of the Uniform Commercial Code of the state in which
such property is held by the Master Servicer. The Indenture Trustee shall not be
liable with respect to such documents, monies or items while in possession of
the Master Servicer.
Section 3.15 INVESTMENT COMPANY ACT. The Issuer shall not become an
"investment company" or be under the "control" of an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (or any
successor or amendatory statute), and the rules and regulations thereunder
(taking into account not only the general definition of the term "investment
company" but also any available exceptions to such general definition);
PROVIDED, HOWEVER, that the Issuer shall be in compliance with this Section 3.15
if it shall have obtained an order exempting it from regulation as an
"investment company" so long as it is in compliance with the conditions imposed
in such order.
Section 3.16 ISSUER MAY CONSOLIDATE, ETC. (a) The Issuer shall not
consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing under
the laws of the United States of America or any state or the District of
Columbia and shall expressly assume, by an
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indenture supplemental hereto, executed and delivered to the Indenture
Trustee, in form reasonably satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of and interest on all Bonds, and all
other amounts payable to the Indenture Trustee, the payment to the
Certificate Paying Agent of all amounts due to the Certifrcateholders, and
the performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such transaction, no
Event of Default shall have occurred and be continuing;
(iii) the Rating Agencies shall have notified the Issuer that
such transaction shall not cause the rating of the Bonds to be reduced,
suspended or withdrawn or to be considered by either Rating Agency to be
below investment grade;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered a copy thereof to the Indenture Trustee) to the effect
that such transaction will not (A) result in a "substantial modification"
of the Bonds under Treasury Regulation section 1.1001-3, or adversely
affect the status of the Bonds as indebtedness for federal income tax
purposes, or (B) if 100% of the Certificates are not owned by IMH Assets
Corp., cause the Trust to be subject to an entity level tax for federal
income tax purposes;
(v) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for or
relating to such transaction have been complied with (including any filing
required by the Exchange Act), and that such supplemental indenture is
enforceable.
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which is
hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any state thereof, (B) expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual payment of the
principal of and interest on all Bonds and the performance or observance of
every agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree by
means of such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the rights of
the Holders of the Bonds, (D) unless otherwise provided in such
supplemental indenture, expressly agree to indemnify, defend and hold
harmless the Issuer and the Indenture Trustee against and from any loss,
liability or expense arising under or related to this Indenture and the
Bonds and (E) expressly agree by
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means of such supplemental indenture that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the
Commission (and any other appropriate Person) required by the Exchange Act
in connection with the Bonds;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agencies shall have notified the Issuer that
such transaction shall not cause the rating of the Bonds to be reduced,
suspended or withdrawn;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered a copy thereof to the Indenture Trustee) to the effect
that such transaction will not (A) result in a "substantial modification"
of the Bonds under Treasury Regulation section 1.1001-3, or adversely
affect the status of the Bonds as indebtedness for federal income tax
purposes, or (B) if 100% of the Certificates are not owned by IMH Assets
Corp., cause the Trust to be subject to an entity level tax for federal
income tax purposes;
(v) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
Section 3.17 SUCCESSOR OR TRANSFEREE. (a) Upon any consolidation or merger
of the Issuer in accordance with Section 3.16(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.16(b), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Bonds immediately upon the delivery of written
notice to the Indenture Trustee of such conveyance or transfer and approval of
such transaction given by the Indenture Trustee.
Section 3.18 NO OTHER BUSINESS. The Issuer shall not engage in any business
other than financing, purchasing, owning and selling and managing the Mortgage
Loans and the issuance of the Bonds and Certificates in the manner contemplated
by this Indenture and the Basic Documents and all activities incidental thereto.
Section 3.19 NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Bonds under this Indenture.
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Section 3.20 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by this Indenture or the Basic Documents, the Issuer shall not make
any loan or advance or credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment or performance on any
obligation or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any other Person.
Section 3.21 CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.22 DETERMINATION OF BOND INTEREST RATE. On each Interest
Determination Date the Indenture Trustee shall determine One-Month LIBOR and the
related Bond Interest Rate for each Class of Bonds for the following Accrual
Period and shall inform the Issuer, the Master Servicer, and the Depositor at
their respective facsimile numbers given to the Indenture Trustee in writing
thereof. The establishment of One-Month LIBOR on each Interest Determination
Date by the Indenture Trustee and the Indenture Trustee's calculation of the
rate of interest applicable to each Class of Bonds for the related Accrual
Period shall (in the absence of manifest error) be final and binding.
Section 3.23 RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; PROVIDED, HOWEVER, that
the Issuer may make, or cause to be made, (x) distributions and payments to the
Owner Trustee, the Indenture Trustee, Bondholders and the Certificateholders as
contemplated by, and to the extent funds are available for such purpose under
this Indenture and the Trust Agreement and (y) payments to the Master Servicer
and the Subservicers pursuant to the terms of the Servicing Agreement. The
Issuer will not, directly or indirectly, make payments to or distributions from
the Collection Account except in accordance with this Indenture and the Basic
Documents.
Section 3.24 NOTICE OF EVENTS OF DEFAULT. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and under the Trust Agreement.
Section 3.25 FURTHER INSTRUMENTS AND ACTS. Upon request of the Indenture
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 3.26 STATEMENTS TO BONDHOLDERS. On each Payment Date, the Indenture
Trustee and the Certificate Registrar shall prepare and make available on the
Indenture Trustee's website, xxxx://xxx-xxxx.xxx.xxxxxxxx-xxxx .com/invr (or
deliver at the recipient's option), to each
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Bondholder and Certificateholder the most recent statement prepared by the
Master Servicer pursuant to Section 4.01 of the Servicing Agreement.
Section 3.27 GRANT OF THE SUBSEQUENT MORTGAGE LOANS. In consideration of
the delivery on each Subsequent Transfer Date to or upon the order of the Issuer
of all or a portion of the amount on deposit in the Pre-Funding Account, the
Depositor shall, to the extent of the availability thereof, on such Subsequent
Transfer Date during the Funding Period Grant to the Indenture Trustee all of
its rights, title and interest in the Subsequent Mortgage Loans and
simultaneously with the Grant of the Subsequent Mortgage Loans the Depositor
will cause the Mortgage File to be delivered to the Indenture Trustee..
Section 3.28 CERTAIN REPRESENTATIONS REGARDING THE TRUST ESTATE.
(a) With respect to that portion of the Collateral described in clauses (a)
through (d) of the definition of Trust Estate, the Issuer represents to the
Indenture Trustee that:
(i) This Indenture creates a valid and continuing security interest
(as defined in the applicable UCC) in the Collateral in favor of the Indenture
Trustee, which security interest is prior to all other liens, and is enforceable
as such as against creditors of and purchasers from the Issuer.
(ii) The Collateral constitutes "deposit accounts" within the meaning
of the applicable UCC.
(iii) The Issuer owns and has good and marketable title to the
Collateral free and clear of any lien, claim or encumbrance of any Person.
(iv) The Issuer has taken all steps necessary to cause the Indenture
Trustee to become the account holder of the Collateral.
(v) Other than the security interest granted to the Indenture Trustee
pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Collateral.
(vi) The Collateral is not in the name of any Person other than the
Issuer or the Indenture Trustee. The Issuer has not consented to the bank
maintaining the Collateral to comply with instructions of any Person other than
the Indenture Trustee.
(b) With respect to that portion of the Collateral described in clauses (e)
and (f), the Issuer represents to the Indenture Trustee that:
(i) This Indenture creates a valid and continuing security interest
(as defined in the applicable UCC) in the Collateral in favor of the Indenture
Trustee, which security interest is prior to all other liens, and is enforceable
as such as against creditors of and purchasers from the Issuer.
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(ii) The Collateral constitutes "general intangibles" within the
meaning of the applicable UCC.
(iii) The Issuer owns and has good and marketable title to the
Collateral free and clear of any lien, claim or encumbrance of any Person.
(iv) The Issuer has caused or will have caused, within ten days, the
filing of all appropriate financing statements in the proper filing office in
the appropriate jurisdictions under applicable law in order to perfect the
security interest in the Collateral granted to the Indenture Trustee hereunder.
(v) Other than the security interest granted to the Indenture Trustee
pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Collateral. The Issuer
has not authorized the filing of and is not aware of any financing statements
against the Issuer that include a description of collateral covering the
Collateral other than any financing statement relating to the security interest
granted to the Indenture Trustee hereunder or that has been terminated. The
Issuer is not aware of any judgment or tax lien filings against the Issuer.
(d) The foregoing representations may not be waived and shall survive the
issuance of the Bonds.
Section 3.29 REPLACEMENT DERIVATIVE CONTRACTS. In the event of a default by
a Derivative Contract Counterparty with respect to the related Derivative
Contracts (a "Derivative Contract Default'), the Issuer, at its expense, may,
but shall not be required to, substitute a new 1231 derivative contract for the
existing Derivative Contracts or any other form of similar coverage for basis
risk shortfalls; PROVIDED, HOWEVER, that the timing and mechanism for receiving
payments under such new derivative contracts shall be reasonably acceptable to
the Indenture Trustee. It shall be a condition to substitution of any new
derivative contracts that there be delivered to the Indenture Trustee an Opinion
of Counsel to the effect that such substitution would not (a) result in a
"substantial modification" of the Bonds under Treasury Regulation section
1.1001-3, or adversely affect the status of the Bonds as indebtedness for
federal income tax purposes, or (b) if 100% of the Certificates are not owned by
IMH Assets Corp., cause the Trust to be subject to an entity level tax for
federal income tax purposes.
Section 3.30 ALLOCATION OF REALIZED LOSSES. (a) Prior to each Payment Date,
the Master Servicer shall determine the total amount of Realized Losses that
occurred during the related Prepayment Period. The amount of each Realized Loss
shall be evidenced by an Officer's Certificate delivered to the Indenture
Trustee with the related Remittance Report.
(b) On each Payment Date following the application of all amounts
distributable on such date, to the extent the aggregate Stated Principal Balance
of the Mortgage Loans is less than the aggregate Bond Principal Balances of the
Bonds due to Realized Losses on the Mortgage Loans, FIRST, the Bond Principal
Balances of the Class B Bonds shall be reduced, until the Bond Principal
Balances thereof have been reduced to zero, SECOND, the Bond Principal Balances
of the Class M-2 Bonds shall be reduced, until the Bond Principal Balances
thereof have been reduced to zero, THIRD,
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the Bond Principal Balances of the Class M-1 Bonds shall be reduced, until the
Bond Principal Balances thereof have been reduced to zero and FOURTH, the Bond
Principal Balances of the Class A-2 Bonds shall be reduced, until the Bond
Principal Balances thereof have been reduced to zero. All Realized Losses
allocated to a Class of Bonds will be allocated in proportion to the Percentage
Interests evidenced thereby.
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ARTICLE IV
The Bonds; Satisfaction and Discharge of Indenture
Section 4.01 THE BONDS. Each Class of Bonds shall be registered in the name
of a nominee designated by the Depository. Beneficial Owners will hold interests
in the Bonds through the book- entry facilities of the Depository in minimum
initial Bond Principal Balances of $25,000 and integral multiples of $1 in
excess thereof.
The Indenture Trustee may for all purposes (including the making of
payments due on the Bonds) deal with the Depository as the authorized
representative of the Beneficial Owners with respect to the Bonds for the
purposes of exercising the rights of Holders of the Bonds hereunder. Except as
provided in the next succeeding paragraph of this Section 4.01, the rights of
Beneficial Owners with respect to the Bonds shall be limited to those
established by law and agreements between such Beneficial Owners and the
Depository and Depository Participants. Except as provided in Section 4.08
hereof, Beneficial Owners shall not be entitled to definitive certificates for
the Bonds as to which they are the Beneficial Owners. Requests and directions
from, and votes of, the Depository as Holder of the Bonds shall not be deemed
inconsistent if they are made with respect to different Beneficial Owners. The
Indenture Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Bondholders and give notice to the
Depository of such record date. Without the consent of the Issuer and the
Indenture Trustee, no Bond may be transferred by the Depository except to a
successor Depository that agrees to hold such Xxxx for the account of the
Beneficial Owners.
In the event the Depository Trust Company resigns or is removed as
Depository, the Indenture Trustee with the approval of the Issuer may appoint a
successor Depository. If no successor Depository has been appointed within 30
days of the effective date of the Depository's resignation or removal, each
Beneficial Owner shall be entitled to certificates representing the Bonds it
beneficially owns in the manner prescribed in Section 4.08.
The Bonds shall, on original issue, be executed on behalf of the Issuer by
the Owner Trustee, not in its individual capacity but solely as Owner Trustee,
authenticated by the Indenture Trustee and delivered by the Indenture Trustee to
or upon the order of the Issuer.
Section 4.02 REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE OF
BONDS; APPOINTMENT OF BOND REGISTRAR AND CERTIFICATE REGISTRAR. The Issuer shall
cause to be kept at the Corporate Trust Office a Bond Register in which, subject
to such reasonable regulations as it may prescribe, the Bond Registrar shall
provide for the registration of Bonds and of transfers and exchanges of Bonds as
herein provided.
Subject to the restrictions and limitations set forth below, upon surrender
for registration of transfer of any Bond at the Corporate Trust Office, the
Issuer shall execute and the Bond Registrar shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Bonds in
authorized initial Bond Principal Balances evidencing the same Class and
aggregate Percentage Interests.
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Subject to the foregoing, at the option of the Bondholders, Bonds may be
exchanged for other Bonds of like tenor and in authorized initial Bond Principal
Balances evidencing the same Class and aggregate Percentage Interests upon
surrender of the Bonds to be exchanged at the Corporate Trust Office of the Bond
Registrar. Whenever any Bonds are so surrendered for exchange, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver the Bonds which
the Bondholder making the exchange is entitled to receive. Each Bond presented
or surrendered for registration of transfer or exchange shall (if so required by
the Bond Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form reasonably satisfactory to the Bond Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing
with such signature guaranteed by a commercial bank or trust company located or
having a correspondent located in the city of New York. Bonds delivered upon any
such transfer or exchange will evidence the same obligations, and will be
entitled to the same rights and privileges, as the Bonds surrendered.
No service charge shall be made for any registration of transfer or
exchange of Bonds, but the Bond Registrar shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of Bonds.
The Issuer hereby appoints the Indenture Trustee as (i) Certificate
Registrar to keep at its Corporate Trust Office a Certificate Register pursuant
to Section 3.09 of the Trust Agreement in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges thereof pursuant to
Section 3.05 of the Trust Agreement and (ii) Bond Registrar under this
Indenture. The Indenture Trustee hereby accepts such appointments.
Section 4.03 MUTILATED, DESTROYED, LOST OR STOLEN BONDS. If (i) any
mutilated Bond is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Bond, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Bond Registrar or
the Indenture Trustee that such Bond has been acquired by a bona fide purchaser,
and provided that the requirements of Section 8- 405 of the UCC are met, the
Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Bond, a replacement Bond; PROVIDED, HOWEVER, that if
any such destroyed, lost or stolen Bond, but not a mutilated Bond, shall have
become or within seven days shall be due and payable, instead of issuing a
replacement Bond, the Issuer may pay such destroyed, lost or stolen Bond when so
due or payable without surrender thereof. If, after the delivery of such
replacement Bond or payment of a destroyed, lost or stolen Bond pursuant to the
proviso to the preceding sentence, a bona fide purchaser of the original Bond in
lieu of which such replacement Bond was issued presents for payment such
original Bond, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
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Upon the issuance of any replacement Bond under this Section 4.03, the
Issuer may require the payment by the Holder of such Bond of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Bond issued pursuant to this Section 4.03 in replacement
of any mutilated, destroyed, lost or stolen Bond shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Bond shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Bonds duly issued hereunder.
The provisions of this Section 4.03 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Bonds.
Section 4.04 PERSONS DEEMED OWNERS. Prior to due presentment for
registration of transfer of any Bond, the Issuer, the Indenture Trustee, the
Paying Agent and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name any Bond is registered (as of the day of determination) as
the owner of such Bond for the purpose of receiving payments of principal of and
interest, if any, on such Bond and for all other purposes whatsoever, whether or
not such Bond be overdue, and neither the Issuer, the Indenture Trustee, the
Paying Agent nor any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
Section 4.05 CANCELLATION. All Bonds surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly cancelled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Bonds previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Bonds so delivered shall be promptly cancelled by the Indenture Trustee.
No Bonds shall be authenticated in lieu of or in exchange for any Bonds
cancelled as provided in this Section 4.05, except as expressly permitted by
this Indenture. All cancelled Bonds may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer Request that they
be destroyed or returned to it; PROVIDED, HOWEVER, that such Issuer Request is
timely and the Bonds have not been previously disposed of by the Indenture
Trustee.
Section 4.06 BOOK-ENTRY BONDS. The Bonds, upon original issuance, will be
issued in the form of typewritten Bonds representing the Book-Entry Bonds, to be
delivered to The Depository Trust Company, the initial Depository, by, or on
behalf of, the Issuer. The Bonds shall initially be registered on the Bond
Register in the name of Cede & Co., the nominee of the initial Depository, and
no Beneficial Owner will receive a Definitive Bond representing such Beneficial
Owner's interest in such Bond, except as provided in Section 4.08. With respect
to such Bonds, unless and until definitive, fully registered Bonds (the
"Definitive Bonds") have been issued to Beneficial Owners pursuant to Section
4.08:
(i) the provisions of this Section 4.06 shall be in full force
and effect;
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(ii) the Bond Registrar, the Paying Agent and the Indenture
Trustee shall be entitled to deal with the Depository for all purposes of
this Indenture (including the payment of principal of and interest on the
Bonds and the giving of instructions or directions hereunder) as the sole
holder of the Bonds, and shall have no obligation to the Beneficial Owners
of the Bonds;
(iii) to the extent that the provisions of this Section 4.06
conflict with any other provisions of this Indenture, the provisions of
this Section 4.06 shall control;
(iv) the rights of Beneficial Owners shall be exercised only
through the Depository and shall be limited to those established by law and
agreements between such Owners of Bonds and the Depository and/or the
Depository Participants. Unless and until Definitive Bonds are issued
pursuant to Section 4.08, the initial Depository will make book- entry
transfers among the Depository Participants and receive and transmit
payments of principal of and interest on the Bonds to such Depository
Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Bonds evidencing
a specified percentage of the Bond Principal Balances of the Bonds, the
Depository shall be deemed to represent such percentage with respect to the
Bonds only to the extent that it has received instructions to such effect
from Beneficial Owners and/or Depository Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the Bonds and has delivered such instructions to the Indenture
Trustee.
Section 4.07 NOTICES TO DEPOSITORY. Whenever a notice or other
communication to the Bond Holders is required under this Indenture, unless and
until Definitive Bonds shall have been issued to Beneficial Owners pursuant to
Section 4.08, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Bonds to the
Depository, and shall have no obligation to the Beneficial Owners.
Section 4.08 DEFINITIVE BONDS. If (i) the Indenture Trustee determines that
the Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Bonds and the Indenture Trustee is unable
to locate a qualified successor, (ii) the Indenture Trustee elects to terminate
the book-entry system through the Depository or (iii) after the occurrence of an
Event of Default, Beneficial Owners of Bonds representing beneficial interests
aggregating at least a majority of the Bond Principal Balances of the Bonds
advise the Depository in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Beneficial
Owners, then the Depository shall notify all Beneficial Owners and the Indenture
Trustee of the occurrence of any such event and of the availability of
Definitive Bonds to Beneficial Owners requesting the same. Upon surrender to the
Indenture Trustee of the typewritten Bonds representing the Book-Entry Bonds by
the Depository, accompanied by registration instructions, the Issuer shall
execute and the Indenture Trustee shall authenticate the Definitive Bonds in
accordance with the instructions of the Depository. None of the Issuer, the Bond
Registrar or the Indenture Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Bonds, the
Indenture Trustee shall recognize the Holders of the Definitive Bonds as
Bondholders.
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Section 4.09 TAX TREATMENT. The Issuer has entered into this Indenture, and
the Bonds will be issued, with the intention that, for federal, state and local
income, single business and franchise tax purposes, the Bonds will qualify as
indebtedness. The Issuer and the Indenture Trustee (in accordance with Section
6.06 hereof), by entering into this Indenture, and each Bondholder, by its
acceptance of its Bond (and each Beneficial Owner by its acceptance of an
interest in the applicable Book-Entry Bond), agree to treat the Bonds for
federal, state and local income, single business and franchise tax purposes as
indebtedness.
Section 4.10 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
cease to be of further effect with respect to the Bonds except as to (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Bonds, (iii) rights of Bondholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.06, 3.09,
3.16, 3.18 and 3.19, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under Section
6.07 and the obligations of the Indenture Trustee under Section 4.11) and (vi)
the rights of Bondholders as beneficiaries hereof with respect to the property
so deposited with the Indenture Trustee payable to all or any of them, and the
Indenture Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Bonds and shall release and deliver the Collateral to or
upon the order of the Issuer, when
(A) either
(1) all Bonds theretofore authenticated and delivered (other than (i)
Bonds that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 4.03 hereof and (ii) Bonds for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 3.03) have been delivered to the
Indenture Trustee for cancellation; or
(2) all Bonds not theretofore delivered to the Indenture Trustee for
cancellation
a. have become due and payable,
b. will become due and payable at the Final Scheduled Payment
Date within one year, or
c. have been called for early redemption and the Trust has been
terminated pursuant to Section 8.07 hereof,
and the Issuer, in the case of a. or b. above, has irrevocably deposited or
caused to be irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness on
such Bonds then outstanding not theretofore delivered to the Indenture Trustee
for cancellation when due on the Final Scheduled Payment Date or other final
Payment Date and has delivered to the Indenture Trustee a verification report
from a nationally recognized accounting fore certifying that the amounts
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deposited with the Indenture Trustee are sufficient to pay and discharge the
entire indebtedness of such Bonds, or, in the case of c. above, the Issuer shall
have complied with all requirements of Section 8.07 hereof,
(B) the Issuer has paid or caused to be paid all other sums payable
hereunder; and
(C) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel, each meeting the applicable
requirements of Section 10.01 hereof, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with and, if the Opinion of Counsel
relates to a deposit made in connection with Section 4.10(A)(2)b. above,
such opinion shall further be to the effect that such deposit will
constitute an "in-substance defeasance" within the meaning of Revenue
Ruling 85-42, 1985-1 C.B. 36, and in accordance therewith, the Issuer will
be the owner of the assets deposited in trust for federal income tax
purposes.
Section 4.11 APPLICATION OF TRUST MONEY. All monies deposited with the
Indenture Trustee pursuant to Section 4.10 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Bonds and this
Indenture, to the payment, either directly or through any Paying Agent or the
Issuer, Certificate Paying Agent as designee of the Issuer, as the Indenture
Trustee may determine, to the Holders of Securities, of all sums due and to
become due thereon for principal and interest or otherwise; but such monies need
not be segregated from other funds except to the extent required herein or
required by law.
Section 4.12 [RESERVED].
Section 4.13 REPAYMENT OF MONIES HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of this Indenture with respect to the Bonds, all
monies then held by any Person other than the Indenture Trustee under the
provisions of this Indenture with respect to such Bonds shall, upon demand of
the Issuer, be paid to the Indenture Trustee to be held and applied according to
Section 3.05 and thereupon such Person shall be released from all further
liability with respect to such monies.
Section 4.14 TEMPORARY BONDS. Pending the preparation of any Definitive
Bonds, the Issuer may execute and upon its written direction, the Indenture
Trustee may authenticate and make available for delivery, temporary Bonds that
are printed, lithographed, typewritten, photocopied or otherwise produced, in
any denomination, substantially of the tenor of the Definitive Bonds in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Bonds may
determine, as evidenced by their execution of such Bonds.
If temporary Bonds are issued, the Issuer will cause Definitive Bonds to be
prepared without unreasonable delay. After the preparation of the Definitive
Bonds, the temporary Bonds shall be exchangeable for Definitive Bonds upon
surrender of the temporary Bonds at the office of the Indenture Trustee located
at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Bonds, the
Issuer shall execute and the Indenture Trustee shall authenticate and make
available for delivery, in exchange
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therefor, Definitive Bonds of authorized denominations and of like tenor, class
and aggregate principal amount. Until so exchanged, such temporary Bonds shall
in all respects be entitled to the same benefits under this Indenture as
Definitive Bonds.
Section 4.15 REPRESENTATION REGARDING ERISA. By acquiring a Bond or
interest therein, each Holder of such Bond or Beneficial Owner of any such
interest will be deemed to represent that either (1) it is not acquiring the
Bond with the assets of a Plan or (2) the acquisition and holding of such Bond
will not give rise to a nonexempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code as a result of the Issuer, the Seller, the
Depositor, the Underwriters, the Owner Trustee, the Indenture Trustee, the
Master Servicer, any Subservicer, any other servicer, any administrator, any
provider of credit support, including the Derivative Contract Counterparties,
any owner of the Certificates, or any of their Affiliates being a "Party in
Interest" (within the meaning of ERISA) or Disqualified Person (within the
meaning of the Code) with respect to such Holder or Beneficial Owner that is a
Plan.
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ARTICLE V
Default and Remedies
Section 5.01 EVENTS OF DEFAULT. The Issuer shall deliver to the Indenture
Trustee, within five days after learning of the occurrence of an Event of
Default, written notice in the form of an Officer's Certificate of any event
which with the giving of notice and the lapse of time would become an Event of
Default under clause (iii) or (iv) of the definition of "Event of Default", its
status and what action the Issuer is taking or proposes to take with respect
thereto. The Indenture Trustee shall not be deemed to have knowledge of any
Event of Default unless a Responsible Officer has actual knowledge thereof or
unless written notice of such Event of Default is received by a Responsible
Officer and such notice references the Bonds, the Trust Estate or this
Indenture.
Section 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee at the written direction of the Holders of Bonds representing
not less than a majority of the aggregate Bond Principal Balance of the Bonds
may declare the Bonds to be immediately due and payable, by a notice in writing
to the Issuer (and to the Indenture Trustee if such notice is given by
Bondholders), and upon any such declaration the unpaid Bond Principal Balance of
the Bonds, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity with respect
to an Event of Default has been made and before a judgment or decree for payment
of the money due has been obtained by the Indenture Trustee as hereinafter in
this Article V provided, Holders of Bonds representing not less than a majority
of the aggregate Bond Principal Balance of the Bonds, by written notice to the
Issuer and the Indenture Trustee, may waive the related Event of Default and
rescind and annul such declaration and its consequences if
(i) the Issuer has paid or deposited with the Indenture Trustee a
sum sufficient to pay:
(A) all payments of principal of and interest on the Bonds and
all other amounts that would then be due hereunder or upon the Bonds
if the Event of Default giving rise to such acceleration had not
occurred; and
(B) all sums paid or advanced by the Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Bonds that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
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Section 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) The Issuer covenants that if (i) default is made in the payment of any
interest on any Bond when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment of
the principal of or any installment of the principal of any Bond when the same
becomes due and payable, the Issuer shall, upon demand of the Indenture Trustee,
at the direction of the Holders of a majority of the aggregate Bond Principal
Balances of the Bonds, pay to the Indenture Trustee, for the benefit of the
Holders of Bonds, the whole amount then due and payable on the Bonds for
principal and interest, with interest at the applicable Bond Interest Rate upon
the overdue principal, and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, subject to the provisions of Section 10.16 hereof may institute a
Proceeding for the collection of the sums so due and unpaid, and may prosecute
such Proceeding to judgment or final decree, and may enforce the same against
the Issuer or other obligor upon the Bonds and collect in the manner provided by
law out of the property of the Issuer or other obligor the Bonds, wherever
situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture Trustee,
subject to the provisions of Section 10.16 hereof may, as more particularly
provided in Section 5.04 hereof, in its discretion, proceed to protect and
enforce its rights and the rights of the Bondholders by such appropriate
Proceedings as the Indenture Trustee shall protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Bonds or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Bonds, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Bonds shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Bonds and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
for
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reimbursement of all expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the Bondholders
allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of Bonds in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute all amounts received
with respect to the claims of the Bondholders and of the Indenture Trustee
on their behalf, and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Indenture Trustee or the Holders of Bonds allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Bondholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Bondholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Bondholder any plan of reorganization, arrangement, adjustment or
composition affecting the Bonds or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Bondholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Bonds, may be enforced by the Indenture Trustee without the
possession of any of the Bonds or the production thereof in any trial or other
Proceedings relative thereto, and any such action or proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Bonds, subject to Section 5.05 hereof.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Bonds, and it shall not be necessary to
make any Bondholder a party to any such Proceedings.
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Section 5.04 REMEDIES; PRIORITIES. (a) If an Event of Default shall have
occurred and be continuing and if an acceleration has been declared and not
rescinded pursuant to Section 5.02 hereof, the Indenture Trustee subject to the
provisions of Section 10.16 hereof may do one or more of the following (subject
to Section 5.05 hereof):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Bonds
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer and
any other obligor upon such Xxxxx monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Holders of the Bonds; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
PROVIDED, HOWEVER, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, unless (A) the
Indenture Trustee obtains the consent of the Holders of 100% of the aggregate
Bond Principal Balance, (B) the proceeds of such sale or liquidation
distributable to the Holders of the Bonds are sufficient to discharge in full
all amounts then due and unpaid upon the Bonds for principal and interest or (C)
the Indenture Trustee determines that the Mortgage Loans will not continue to
provide sufficient funds for the payment of principal of and interest on the
Bonds as they would have become due if the Bonds had not been declared due and
payable, and the Indenture Trustee obtains the consent of the Holders of a
majority of the aggregate Bond Principal Balance. In determining such
sufficiency or insufficiency with respect to clause (B) and (C), the Indenture
Trustee may, but need not, obtain and rely upon an opinion (obtained at the
expense of the Trust) of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose. Notwithstanding the foregoing,
so long as an Event of Servicer Termination has not occurred, any Sale of the
Trust Estate shall be made subject to the continued servicing of the Mortgage
Loans by the Master Servicer as provided in the Servicing Agreement.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 6.07
hereof;
SECOND: to the Bondholders for amounts due and unpaid on the Bonds
with respect to interest, first, to the Class A-1 Bondholders, second, to
the Class A-2 Bondholders, third, to the Class M-1 Bondholders, fourth, to
the Class M-2 Bondholders and fifth, to the Class B Bondholders, according
to the amounts due and payable on the Bonds for interest
35
(including any Unpaid Interest Shortfalls but not including any Basis Risk
Shortfall Carry- Forward Amount);
THIRD: to Bondholders for amounts due and unpaid on the Bonds with
respect to principal, and to each Bondholder ratably, without preference or
priority of any kind, according to the amounts due and payable on the Bonds
for principal, until the Bond Principal Balance of each Class is reduced to
zero;
FOURTH: to the Bondholders for amounts due and unpaid on the Bonds
with respect to any related Basis Risk Shortfall Carry-Forward Amounts,
first, to the Class A-1 Bondholders, second, to the Class A-2 Bondholders,
third, to the Class M-1 Bondholders, fourth, to the Class M-2 Bondholders
and fifth, to the Class B Bondholders, according to the amounts due and
payable on the Bonds with respect thereto, from amounts available in the
Trust Estate for the Bondholders; and
FIFTH: to the payment of the remainder, if any to the Certificate
Paying Agent on behalf of the Issuer or to any other person legally
entitled thereto.
The Indenture Trustee may fix a record date and payment date for any
payment to Bondholders pursuant to this Section 5.04. At least 15 days before
such record date, the Indenture Trustee shall mail to each Bondholder a notice
that states the record date, the payment date and the amount to be paid.
Section 5.05 OPTIONAL PRESERVATION OF THE TRUST ESTATE. If the Bonds have
been declared to be due and payable under Section 5.02 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may elect to take and maintain possession of the
Trust Estate. It is the desire of the parties hereto and the Bondholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Bonds and other obligations of the Issuer, and the Indenture
Trustee shall take such desire into account when determining whether or not to
take and maintain possession of the Trust Estate. In determining whether to take
and maintain possession of the Trust Estate, the Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such purpose.
Section 5.06 LIMITATION OF SUITS. No Holder of any Bond shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless and subject to the provisions of Section 10.16 hereof
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the aggregate Bond
Principal Balances of the Bonds have made a written request to the
Indenture Trustee to institute such
36
Proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to
be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice of request and offer of indemnity has failed to institute such
Proceedings; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Holders of
a majority of the Bond Principal Balances of the Bonds.
It is understood and intended that no one or more Holders of Bonds shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Bonds or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided.
Subject to the last paragraph of Section 5.11 herein, in the event the
Indenture Trustee shall receive conflicting or inconsistent requests and
indemnity from two or more groups of Holders of Bonds, each representing less
than a majority of the Bond Principal Balances of the Bonds, the Indenture
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
Section 5.07 UNCONDITIONAL RIGHTS OF BONDHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST. Notwithstanding any other provisions in this Indenture, the Holder of
any Bond shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Bond on or after the
respective due dates thereof expressed in such Bond or in this Indenture and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 5.08 RESTORATION OF RIGHTS AND REMEDIES. If the Indenture Trustee
or any Bondholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Bondholder, then and in every such case the Issuer, the Indenture Trustee and
the Bondholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Bondholders
shall continue as though no such Proceeding had been instituted.
Section 5.09 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Bondholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or
37
in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10 DELAY OR OMISSION NOT A WAIVER. No delay or omission of the
Indenture Trustee or any Holder of any Bond to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to the Indenture
Trustee or to the Bondholders may be exercised from time to time, and as often
as may be deemed expedient, by the Indenture Trustee or by the Bondholders, as
the case may be.
Section 5.11 [RESERVED]
Section 5.12 WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Bonds as provided in Section 5.02 hereof,
the Holders of Bonds representing not less than a majority of the aggregate Bond
Principal Balance of the Bonds may waive any past Event of Default and its
consequences except an Event of Default (a) with respect to payment of principal
of or interest on any of the Bonds or (b) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Bond. In the case of any such waiver, the Issuer, the Indenture Trustee and
the Holders of the Bonds shall be restored to their former positions and rights
hereunder, respectively, but no such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereto.
Upon any such waiver, any Event of Default arising therefrom shall be
deemed to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereto.
Section 5.13 UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Bond and each Beneficial Owner of any interest therein by
such Xxxxxx's or Beneficial Owner's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Bondholder, or group of
Bondholders, in each case holding in the aggregate more than 10% of the Bond
Principal Balances of the Bonds or (c) any suit instituted by any Bondholder for
the enforcement of the payment of principal of or interest on any Bond on or
after the respective due dates expressed in such Bond and in this Indenture.
Section 5.14 WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of
38
any such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein grunted to the Indenture Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
Section 5.15 SALE OF TRUST ESTATE. (a) The power to effect any sale or
other disposition (a "Sale") of any portion of the Trust Estate pursuant to
Section 5.04 hereof is expressly subject to the provisions of Section 5.05
hereof and this Section 5.15. The power to effect any such Sale shall not be
exhausted by any one or more Sales as to any portion of the Trust Estate
remaining unsold, but shall continue unimpaired until the entire Trust Estate
shall have been sold or all amounts payable on the Bonds and under this
Indenture shall have been paid. The Indenture Trustee may from time to time
postpone any public Sale by public announcement made at the time and place of
such Sale. The Indenture Trustee hereby expressly waives its right to any amount
fixed by law as compensation for any Sale.
(b) The Indenture Trustee shall not in any private Sale sell the Trust
Estate, or any portion thereof, unless
(1) the Holders of all Bonds consent to or direct the Indenture
Trustee to make, such Sale, or
(2) the proceeds of such Sale would be not less than the entire amount
which would be payable to the Bondholders under the Bonds, in full payment
thereof in accordance with Section 5.02 hereof, on the Payment Date next
succeeding the date of such Sale, or
(3) the Indenture Trustee determines that the conditions for retention
of the Trust Estate set forth in Section 5.05 hereof cannot be satisfied
(in making any such determination, the Indenture Trustee may rely upon an
opinion of an Independent investment banking firm obtained and delivered as
provided in Section 5.05 hereof), and the Holders of Bonds representing at
least 100% of the Bond Principal Balances of the Bonds consent to such
Sale.
The purchase by the Indenture Trustee of all or any portion of the Trust Estate
at a private Sale shall not be deemed a Sale or other disposition thereof for
purposes of this Section 5.15(b).
(c) Unless the Holders representing at least 66-2/3% of the Bond Principal
Balances of the Bonds have otherwise consented or directed the Indenture
Trustee, at any public Sale of all or any portion of the Trust Estate at which a
minimum bid equal to or greater than the amount described in paragraph (2) of
subsection (b) of this Section 5.15 has not been established by the Indenture
Trustee and no Person bids an amount equal to or greater than such amount, the
Indenture Trustee, as trustee for the benefit of the Holders of the Bonds, shall
bid an amount at least $1.00 more than the highest other bid.
(d) In connection with a Sale of all or any portion of the Trust Estate,
(1) any Holder or Holders of Bonds may bid for and purchase the
property offered for sale, and upon compliance with the terms of sale may
hold, retain and possess and dispose of such property, without further
accountability, and may, in paying the purchase
39
money therefor, deliver any Bonds or claims for interest thereon in lieu of
cash up to the amount which shall, upon distribution of the net proceeds of
such sale, be payable thereon, and such Bonds, in case the amounts so
payable thereon shall be less than the amount due thereon, shall be
returned to the Holders thereof after being appropriately stamped to show
such partial payment;
(2) the Indenture Trustee may bid for and acquire the property offered
for Sale in connection with any Sale thereof, and, subject to any
requirements of, and to the extent permitted by, applicable law in
connection therewith, may purchase all or any portion of the Trust Estate
in a private sale, and, in lieu of paying cash therefor, may make
settlement for the purchase price by crediting the gross Sale price against
the sum of (A) the amount which would be distributable to the Holders of
the Bonds and Holders of Certificates on the Payment Date next succeeding
the date of such Sale and (B) the expenses of the Sale and of any
Proceedings in connection therewith which are reimbursable to it, without
being required to produce the Bonds in order to complete any such Sale or
in order for the net Sale price to be credited against such Bonds, and any
property so acquired by the Indenture Trustee shall be held and dealt with
by it in accordance with the provisions of this Indenture;
(3) the Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance, prepared by the Issuer and satisfactory to the
Indenture Trustee, transferring its interest in any portion of the Trust
Estate in connection with a Sale thereof;
(4) the Indenture Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Issuer to transfer and convey its interest in
any portion of the Trust Estate in connection with a Sale thereof, and to
take all action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any monies.
Section 5.16 ACTION ON BONDS. The Indenture Trustee's right to seek and
recover judgment on the Bonds or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Bondholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.04(b) hereof.
Section 5.17 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS. (a)
Promptly following a request from the Indenture Trustee to do so, the Issuer in
its capacity as holder of the Mortgage Loans, shall take all such lawful action
as the Indenture Trustee may request to cause the Issuer to compel or secure the
performance and observance by the Seller and the Master Servicer, as applicable,
of each of their obligations to the Issuer under or in connection with the
Mortgage Loan Sale and Contribution Agreement, the Subsequent Mortgage Loan Sale
and Contribution Agreement and the Servicing Agreement, and to exercise any and
all rights, remedies, powers and privileges
40
lawfully available to the Issuer under or in connection with the Mortgage Loan
Sale and Contribution Agreement, the Subsequent Mortgage Loan Sale and
Contribution Agreement and the Servicing Agreement to the extent and in the
manner directed by the Indenture Trustee, as pledgee of the Mortgage Loans,
including the transmission of notices of default on the part of the Seller or
the Master Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Seller or the
Master Servicer of each of their obligations under the Mortgage Loan Sale and
Contribution Agreement, the Subsequent Mortgage Loan Sale and Contribution
Agreement and the Servicing Agreement.
(b) The Indenture Trustee, as pledgee of the Mortgage Loans, may, and at
the direction (which direction shall be in writing or by telephone (confirmed in
writing promptly thereafter)) of the Holders of 66-2/3% of the Bond Principal
Balances of the Bonds, shall exercise all rights, remedies, powers, privileges
and claims of the Issuer against the Seller or the Master Servicer under or in
connection with the Mortgage Loan Sale and Contribution Agreement, the
Subsequent Mortgage Loan Sale and Contribution Agreement and the Servicing
Agreement, including the right or power to take any action to compel or secure
performance or observance by the Seller or the Master Servicer, as the case may
be, of each of their obligations to the Issuer thereunder and to give any
consent, request, notice, direction, approval, extension or waiver under the
Mortgage Loan Sale and Contribution Agreement, the Subsequent Mortgage Loan Sale
and Contribution Agreement and the Servicing Agreement, as the case may be, and
any right of the Issuer to take such action shall not be suspended.
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ARTICLE VI
The Indenture Trustee
Section 6.01 DUTIES OF INDENTURE TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Indenture Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against
the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 6.01;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it from Bondholders or from the Issuer, which they
are entitled to give under the Basic Documents.
(d) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other trust funds except to the extent required by law or the terms of this
Indenture or the Trust Agreement.
(f) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
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repayment of such finds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
(h) The Indenture Trustee shall act in accordance with Sections 6.03 and
6.04 of the Servicing Agreement and shall act as successor to the Master
Servicer or appoint a successor Master Servicer in accordance with Section 6.02
of the Servicing Agreement.
Section 6.02 RIGHTS OF INDENTURE TRUSTEE. (a) The Indenture Trustee may
rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Indenture Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; PROVIDED, HOWEVER, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of Counsel with respect to legal matters relating to this Indenture and
the Bonds shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) For the limited purpose of effecting any action to be undertaken by the
Indenture Trustee, but not specifically as a duty of the Indenture Trustee in
the Indenture, the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, custodians or nominees appointed with due care, and shall not
be responsible for any willful misconduct or negligence on the part of any
agent, attorney, custodian or nominee so appointed.
Section 6.03 INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. The Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of Bonds
and may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Indenture Trustee, subject to the requirements of the
Trust Indenture Act. Any Bond Registrar, co-registrar or co-paying agent may do
the same with like rights. However, the Indenture Trustee must comply with
Sections 6.11 and 6.12 hereof.
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Section 6.04 INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Bonds, it shall not be accountable for the
Issuer's use of the proceeds from the Bonds, and it shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Bonds or in the Bonds other than the Indenture
Trustee's certificate of authentication.
Section 6.05 NOTICE OF EVENT OF DEFAULT. Subject to Section 5.01, the
Indenture Trustee shall promptly mail to each Bondholder notice of the Event of
Default after it is known to a Responsible Officer of the Indenture Trustee,
unless such Event of Default shall have been waived or cured. Except in the case
of an Event of Default in payment of principal of or interest on any Bond, the
Indenture Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Bondholders.
Section 6.06 REPORTS BY INDENTURE TRUSTEE TO HOLDERS AND TAX
ADMINISTRATION. The Indenture Trustee shall deliver to each Bondholder such
information as may be required to enable such holder to prepare its federal and
state income tax returns.
The Indenture Trustee shall prepare and file (or cause to be prepared and
filed), on behalf of the Owner Trustee, all tax returns (if any) and information
reports, tax elections and such annual or other reports of the Issuer as are
necessary for preparation of tax returns and information reports as provided in
Section 5.03 of the Trust Agreement, including without limitation Form 1099. All
tax returns and information reports shall be signed by the Owner Trustee as
provided in Section 5.03 of the Trust Agreement.
Section 6.07 COMPENSATION AND INDEMNITY. The Issuer shall pay to the
Indenture Trustee on each Payment Date reasonable compensation for its services.
The amount of the Indenture Trustee Fee shall be paid by the Master Servicer to
the Indenture Trustee on each Payment Date pursuant to Section 3.07(a)(x) of the
Servicing Agreement and all amounts owing to the Indenture Trustee hereunder
(including amounts owing from the Issuer for indemnification and otherwise) in
excess of such amount shall be paid solely as provided in Section 3.05(d)(ix)
and Section 5.04(b) hereof. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to
compensation for its services. Such expenses shall include reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Issuer shall indemnify the
Indenture Trustee against any and all loss, liability or expense (including
attorneys' fees) incurred by it in connection with the administration of this
Trust and the performance of its duties hereunder. The Indenture Trustee shall
notify the Issuer promptly of any claim for which it may seek indemnity. Failure
by the Indenture Trustee to so notify the Issuer shall not relieve the Issuer of
its obligations hereunder. The Issuer shall defend any such claim, and the
Indenture Trustee may have separate counsel and the Issuer shall pay the fees
and expenses of such counsel. The Issuer is not obligated to reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
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The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section 6.07 shall survive the discharge of this Indenture and the termination
or resignation of the Indenture Trustee. When the Indenture Trustee incurs
expenses after the occurrence of an Event of Default with respect to the Issuer,
the expenses are intended to constitute expenses of administration under Title
11 of the United States Code or any other applicable federal or state
bankruptcy, insolvency or similar law.
Section 6.08 REPLACEMENT OF INDENTURE TRUSTEE. No resignation or removal of
the Indenture Trustee and no appointment of a successor Indenture Trustee shall
become effective until the acceptance of appointment by the successor Indenture
Trustee pursuant to this Section 6.08. The Indenture Trustee may resign at any
time by so notifying the Issuer. The Holders of a majority of Bond Principal
Balances of the Bonds may remove the Indenture Trustee by so notifying the
Indenture Trustee and may appoint a successor Indenture Trustee. The Issuer
shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11
hereof;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of the Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Bondholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Holders of a majority of Bond Principal Balances of
the Bonds may petition any court of competent jurisdiction for the appointment
of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
Section 6.09 SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
45
corporation, without any further act, shall be the successor Indenture Trustee;
provided, that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.11 hereof. The Indenture Trustee shall
provide the Rating Agencies with prior written notice of any such transaction.
If at the time such successor or successors by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture and any of the Bonds shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee and deliver such Bonds so
authenticated; and if at that time any of the Bonds shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Bonds either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is in the Bonds or in this Indenture provided
that the certificate of the Indenture Trustee shall have.
Section 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE
TRUSTEE. (a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Bondholders, such title to the Trust Estate, or any part hereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Indenture Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 6.11 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
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(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11 ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee shall at
all times satisfy the requirements of TIA ss. 310(a). The Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and it or its parent
shall have a long-term debt rating of Baa3 or better by Xxxxx'x and BBB or
better by Standard & Poor's. The Indenture Trustee shall comply with TIA ss.
310(b), including the optional provision permitted by the second sentence of TIA
ss. 310(b)(9); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA ss. 310(b)(1) are met.
Section 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). An Indenture Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
Section 6.13 REPRESENTATIONS AND WARRANTIES. The Indenture Trustee hereby
represents that:
(i) The Indenture Trustee is duly organized and validly existing
as an association in good standing under the laws of the United States with
power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted;
(ii) The Indenture Trustee has the power and authority to execute
and deliver this Indenture and to carry out its terms; and the execution,
delivery and performance of this Indenture have been duly authorized by the
Indenture Trustee by all necessary corporate action;
(iii) The consummation of the transactions contemplated by this
Indenture and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default
47
under, the articles of incorporation or bylaws of the Indenture Trustee or
any agreement or other instrument to which the Indenture Trustee is a party
or by which it is bound; and
(iv) To the Indenture Trustee's knowledge, there are no
proceedings or investigations pending or threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Indenture Trustee or its
properties: (A) asserting the invalidity of this Indenture (B) seeking to
prevent the consummation of any of the transactions contemplated by this
Indenture or (C) seeking any determination or ruling that might materially
and adversely affect the performance by the Indenture Trustee of its
obligations under, or the validity or enforceability of, this Indenture.
Section 6.14 DIRECTIONS TO INDENTURE TRUSTEE. The Indenture Trustee is
hereby directed:
(a) to accept the pledge of the Mortgage Loans and hold the assets of the
Trust Estate in trust for the Bondholders;
(b) to authenticate and deliver the Bonds substantially in the form
prescribed by Exhibits A-1 and A-2 to this Indenture in accordance with the
terms of this Indenture; and
(c) to take all other actions as shall be required to be taken by the terms
of this Indenture.
Section 6.15 THE AGENTS. The provisions of this Indenture relating to the
limitations of the Indenture Trustee's liability and to its indemnity, rights
and protections shall inure also to the Paying Agent and Bond Registrar.
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ARTICLE VII
Bondholders' Lists and Reports
Section 7.01 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
BONDHOLDERS. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (a) not more than five days after each Record Date, a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses of
the Holders of Bonds as of such Record Date, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; PROVIDED, HOWEVER,
that so long as the Indenture Trustee is the Bond Registrar, no such list shall
be required to be furnished to the Indenture Trustee.
Section 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO BONDHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Bonds contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.01
hereof and the names and addresses of Holders of Bonds received by the Indenture
Trustee in its capacity as Bond Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in such Section 7.01 upon receipt of a new list
so furnished.
(b) Bondholders may communicate pursuant to TIA ss. 312(b) with other
Bondholders with respect to their rights under this Indenture or under the
Bonds.
(c) The Issuer, the Indenture Trustee and the Bond Registrar shall have the
protection of TIAss.312(c).
Section 7.03 REPORTS OF ISSUER. (a) (i) The Indenture Trustee shall file
with the Commission on behalf of the Issuer, with a copy to the Issuer within 15
days before the Issuer is required to file the same with the Commission, the
annual reports and the information, documents and other reports (or such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) that the Issuer may be required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) The Indenture Trustee shall file with the Commission, on
behalf of the Issuer, in accordance with rules and regulations prescribed
from time to time by the Commission such additional information, documents
and reports with respect to compliance by the Issuer with the conditions
and covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) The Indenture Trustee shall supply (and the Indenture
Trustee shall transmit by mail to all Bondholders described in TIA ss.
313(c)) such summaries of any information, documents and reports required
to be filed by the Issuer pursuant to clauses (i) and (ii) of this Section
7.03(a) and by rules and regulations prescribed from time to time by the
Commission.
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(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
Section 7.04 REPORTS BY INDENTURE TRUSTEE. If required by TIA ss. 313(a),
within 60 days after each October 30 beginning with October 30, 2002, the
Indenture Trustee shall mail to each Bondholder as required by TIA ss. 313(c) a
brief report dated as of such date that complies with TIA ss. 313(a). The
Indenture Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Bondholders shall be
filed by the Indenture Trustee with the Commission via XXXXX and each stock
exchange, if any, on which the Bonds are listed. The Issuer shall notify the
Indenture Trustee if and when the Bonds are listed on any stock exchange.
Section 7.05 STATEMENTS TO BONDHOLDERS. (a) With respect to each Payment
Date, the Indenture Trustee shall make available via the Indenture Trustee's
website xxxx://xxx- xxxx.xxx.xxxxxxxx-xxxx.xxx/xxxx or deliver at the
recipient's option to each Bondholder and each Certificateholder, the Depositor,
the Owner Trustee, the Certificate Paying Agent and each Rating Agency, a
statement setting forth the following information as to the Bonds, to the extent
applicable:
(i) the aggregate amount of collections with respect to the
Mortgage Loans;
(ii) the Available Funds and Net Monthly Excess Cash Flow payable
to each Class of Bondholders for such Payment Date, the Basis Risk
Shortfall Carry-Forward Amount on each Class of Bonds for such Payment Date
and the aggregate Unpaid Interest Shortfall on each Class of Bonds for such
Payment Date;
(iii) (a) the amount of such distribution to each Class of Bonds
applied to reduce the Bond Principal Balance thereof, and (b) the aggregate
amount included therein representing Principal Prepayments;
(iv) [reserved];
(v) (v) the amount of such distribution to Holders of each Class
of Bonds allocable to interest;
(vi) the amount of such distribution to the Certificates;
(vii) if the distribution to the Holders of any Class of Bonds is
less than the full amount that would be distributable to such Holders if
there were sufficient funds available therefor, the amount of the
shortfall;
(viii) the number and the aggregate Stated Principal Balance of
the Mortgage Loans as of the end of the related Due Period;
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(ix) the aggregate Bond Principal Balance of each Class of Bonds,
after giving effect to the amounts distributed on such Payment Date,
separately identifying any reduction thereof due to Realized Losses other
than pursuant to an actual distribution of principal and the aggregate Bond
Principal Balance of all of the Bonds after giving effect to the
distribution of principal on such Payment Date;
(x) the number and aggregate Stated Principal Balances of
Mortgage Loans (a) as to which the Monthly Payment is delinquent for 31-60
days, 61-90 days, 91 or more days, respectively, (b) in foreclosure and (c)
that have become REO Property, in each case as of the end of the preceding
calendar month;
(xi) the Net Derivative Contract Payment Amount;
(xii) the Overcollateralization Deficiency Amount,
Overcollateralization Release Amount, Overcollateralization Target Amount
and Overcollateialized Amount, if any, in each case as the end of the
related Payment Date;
(xiii) the amount of any Advances and Compensating Interest
payments;
(xiv) the aggregate Realized Losses with respect to the related
Payment Date and cumulative Realized Losses since the Closing Date;
(xv) the number and aggregate Stated Principal Balance of
Mortgage Loans repurchased pursuant to the Mortgage Loan Sale and
Contribution Agreement or the Subsequent Mortgage Loan Sale and
Contribution Agreement, as applicable, for the related Payment Date and
cumulatively since the Closing Date;
(xvi) the Sixty Day Rolling Delinquency Percentage, Ninety Day
Rolling Delinquency Percentage and Cumulative Losses for such Payment Date;
(xvii) the book value of any REO Property;
(xviii) the amount of any Prepayment Interest Shortfalls or
Relief Act Shortfalls for such Payment Date;
(xix) the aggregate Stated Principal Balance of Mortgage Loans
purchased pursuant to Section 3.18 of the Servicing Agreement for the
related Payment Date and cumulatively since the Closing Date;
(xx) the amount withdrawn from the Pre-Funding Account and used
to make payments to Bondholders on that Payment Date, the amount remaining
on deposit following such Payment Date, and the amount withdrawn from the
Pre-Funding Account used to buy Subsequent Mortgage Loans prior to such
Payment Date; and
(xxi) the Net Derivative Fee for such Payment Date.
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Items (iii) and (v) above shall be presented on the basis of a Bond having
a $1,000 denomination. In addition, by January 31 of each calendar year
following any year during which the Bonds are outstanding, the Indenture Trustee
shall furnish a report to each Bondholder of record if so requested in writing
at any time during each calendar year as to the aggregate of amounts reported
pursuant to (iii), (iv) and (xii) with respect to the Bonds for such calendar
year.
The Indenture Trustee may conclusively rely upon the Remittance Report
provided by the Master Servicer pursuant to Section 4.01 of the Servicing
Agreement and on the amount of the Net Derivative Contract Payment Amount
furnished to the Indenture Trustee pursuant to the Derivative Contracts in its
preparation of its Statement to Bondholders.
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ARTICLE VIII
Accounts, Disbursements and Releases
Section 8.01 COLLECTION OF MONEY. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
Section 8.02 TRUST ACCOUNTS. (a) On or prior to the Closing Date, the
Issuer shall cause the Indenture Trustee to establish and maintain, in the name
of the Indenture Trustee, for the benefit of the Bondholders, the Payment
Account as provided in Section 3.01 hereof and the Pre-Funding Account as
provided in Section 3.11 hereof.
(b) All monies deposited from time to time in the Payment Account and all
deposits therein pursuant to this Indenture (other than deposits of any gain or
income on investments thereof) are for the benefit of the Bondholders. Any loss
on any investment made by the Indenture Trustee with funds in the Payment
Account and Pre-Funding Account shall be reimbursed immediately to the Trust
Estate by the Master Servicer. All investments made with monies in the Payment
Account and the Certificate Distribution Account including all income or other
gain from such investments shall be for the benefit of and the risk of the
Master Servicer.
(c) On each Payment Date, the Indenture Trustee shall pay itself the
Indenture Trustee Fee for such Payment Date and shall pay the Derivative
Contract Counterparties any amounts owed under the Derivative Contracts, and
then the Indenture Trustee shall distribute all remaining amounts on deposit in
the Payment Account to the Bondholders in respect of the Bonds and to such other
persons in the order of priority set forth in Section 3.05 hereof (except as
otherwise provided in Section 5.04(b) hereof).
(d) The Indenture Trustee shall invest any funds in the Payment Account and
the Pre- Funding Account, but only in Eligible Investments, as directed by the
Master Servicer, maturing no later than the Business Day preceding each Payment
Date and such Eligible Investments shall not be sold or disposed of prior to
their maturity.
Section 8.03 OFFICER'S CERTIFICATE. The Indenture Trustee shall receive at
least seven Business Days' notice when requested by the Issuer to take any
action pursuant to Section 8.05(a) hereof, accompanied by copies of any
instruments to be executed, and the Indenture Trustee shall also require, as a
condition to such action, an Officer's Certificate, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to
53
complete the same, and concluding that all conditions precedent to the taking of
such action have been complied with.
Section 8.04 TERMINATION UPON DISTRIBUTION TO BONDHOLDERS. This Indenture
and the respective obligations and responsibilities of the Issuer and the
Indenture Trustee created hereby shall terminate upon the distribution to
Bondholders, the Certificate Paying Agent on behalf of the Certificateholders
and the Indenture Trustee of all amounts required to be distributed pursuant to
Article III; PROVIDED, HOWEVER, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Section 8.05 RELEASE OF TRUST ESTATE. (a) Subject to the payment of its
fees and expenses, the Indenture Trustee may, and when required by the
provisions of this Indenture shall, execute instruments to release property from
the lien of this Indenture, or convey the Indenture Trustee's interest in the
same, in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture, including for the purposes of any repurchase by
the Master Servicer of a Mortgage Loan pursuant to Section 3.18 of the Servicing
Agreement. No party relying upon an instrument executed by the Indenture Trustee
as provided in Article VIII hereunder shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent,
or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as (i) there are no Bonds
Outstanding and (ii) all sums due to the Indenture Trustee pursuant to this
Indenture have been paid, release any remaining portion of the Trust Estate that
secured the Bonds from the lien of this Indenture.
(c) The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.05 only upon receipt of a request from the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel stating
that all applicable requirements have been satisfied,.
Section 8.06 SURRENDER OF BONDS UPON FINAL PAYMENT. By acceptance of any
Xxxx, the Holder thereof agrees to surrender such Xxxx to the Indenture Trustee
promptly, prior to such Bondholder's receipt of the final payment thereon.
Section 8.07 OPTIONAL REDEMPTION OF THE BONDS. (a) The Holder of the
Certificates shall have the option to redeem the Bonds in whole, but not in
part, on any Payment Date on or after the earlier of (i) the Payment Date on
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
or equal to 20% of the aggregate Stated Principal Balance of the Mortgage Loans
as of Cut-off Date and (ii) the Payment Date in November 2011. The aggregate
redemption price for the Bonds will be equal to the unpaid Bond Principal
Balance of the Bonds as of the Payment Date on which the proposed redemption
will take place in accordance with the foregoing, together with accrued and
unpaid interest thereon at the applicable Bond Interest Rate through such
Payment Date (including any Unpaid Interest Shortfalls and Basis Risk Shortfall
Carry-Forward Amount), plus an amount sufficient to pay in full all amounts
owing to the Indenture Trustee under this Indenture (which amounts shall be
specified in writing upon request of the Issuer by the Indenture Trustee).
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(b) In order to exercise the foregoing option, the Issuer shall provide
written notice of its exercise of such option to the Indenture Trustee, the
Owner Trustee and the Master Servicer at least 15 days prior to its exercise.
Following receipt of the notice, the Indenture Trustee shall provide notice to
the Bondholders of the final payment on the Bonds. In addition, the Issuer
shall, not less than one Business Day prior to the proposed Payment Date on
which such redemption is to be made, deposit the aggregate redemption price
specified in (a) above with the Indenture Trustee, who shall deposit the
aggregate redemption price into the Payment Account and shall, on the Payment
Date after receipt of the funds, apply such funds to make final payments of
principal and interest on the Bonds in accordance with Section 3.05(b) and (c)
hereof and payment in full to the Indenture Trustee, and this Indenture shall be
discharged subject to the provisions of Section 4.10 hereof. If for any reason
the amount deposited by the Issuer is not sufficient to make such redemption or
such redemption cannot be completed for any reason, the amount so deposited by
the Issuer with the Indenture Trustee shall be immediately returned to the
Issuer in full and shall not be used for any other purpose or be deemed to be
part of the Trust Estate.
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ARTICLE IX
Supplemental Indentures
Section 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF BONDHOLDERS. (a)
Without the consent of the Holders of any Bonds but with prior notice to the
Rating Agencies, the Issuer and the Indenture Trustee, when authorized by an
Issuer Request, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the TIA
as in force at the date of the execution thereof), in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein and
in the Bonds contained;
(iii) to add to the covenants of the Issuer, for the benefit of
the Holders of the Bonds, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture;
(vi) to make any other provisions with respect to matters or
questions arising under this indenture or in any supplemental indenture;
provided, that such action shall not materially and adversely affect the
interests of the Holders of the Bonds;
(vii) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Bonds and
to add to or change any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the trusts hereunder by more
than one trustee, pursuant to the requirements of Article VI hereof; or
(viii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other provisions as may
be expressly required by the TIA;
PROVIDED, HOWEVER, that no such indenture supplements shall be entered into
unless the Indenture Trustee shall have received an Opinion of Counsel as to the
enforceability of any such indenture
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supplement and to the effect that (i) such indenture supplement is permitted
hereunder and (ii) entering into such indenture supplement will not result in a
"substantial modification" of the Bonds under Treasury Regulation Section
1.1001-3 or adversely affect the status of the Bonds as indebtedness for federal
income tax purposes.
The Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that maybe therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Request, may, also without the consent of any of the Holders of the Bonds and
prior notice to the Rating Agencies, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Bonds under this
Indenture; PROVIDED, HOWEVER, that such action as evidenced by an Opinion of
Counsel, (i) is permitted by this Indenture, and shall not (ii) adversely affect
in any material respect the interests of any Bondholder or (iii) if 100% of the
Certificates are not owned by IMH Assets Corp., cause the Issuer to be subject
to an entity level tax for federal income tax purposes.
Section 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF BONDHOLDERS. The
Issuer and the Indenture Trustee, when authorized by an Issuer Request, also
may, with prior notice to the Rating Agencies and, with the consent of the
Holders of not less than a majority of the Bond Principal Balance of each Class
of Bonds affected thereby, by Act (as defined in Section 10.03 hereof) of such
Holders delivered to the Issuer and the Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Holders of
the Bonds under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Bond affected
thereby:
(i) change the date of payment of any installment of principal of
or interest on any Bond, or reduce the principal amount thereof or the
interest rate thereon, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the
Trust Estate to payment of principal of or interest on the Bonds, or change
any place of payment where, or the coin or currency in which, any Bond or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the Bonds on or after the respective due
dates thereof,
(ii) reduce the percentage of the Bond Principal Balances of the
Bonds, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture;
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(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding" or modify or alter the exception in
the definition of the term "Holder";
(iv) reduce the percentage of the Bond Principal Balances of the
Bonds required to direct the Indenture Trustee to direct the Issuer to sell
or liquidate the Trust Estate pursuant to Section 5.04 hereof;
(v) modify any provision of this Section 9.02 except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Bond affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Bond on any Payment Date (including the
calculation of any of the individual components of such calculation); or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at any time subject
hereto or deprive the Holder of any Bond of the security provided by the
lien of this Indenture; and provided, further, that such action shall not,
as evidenced by an Opinion of Counsel, cause the Issuer (if 100% of the
Certificates are not owned by IMH Assets Corp.) to be subject to an entity
level tax.
Any such action shall not adversely affect in any material respect the
interest of any Holder (other than a Holder who shall consent to such
supplemental indenture) as evidenced by an Opinion of Counsel (provided by the
Person requesting such supplemental indenture) delivered to the Indenture
Trustee.
It shall not be necessary for any Act of Bondholders under this Section
9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of any
supplemental indenture pursuant to this Section 9.02, the Indenture Trustee
shall mail to the Holders of the Bonds to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02 hereof, shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or
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permitted by this Indenture. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
Section 9.04 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Bonds affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Holders of the Bonds shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 9.05 CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
Section 9.06 REFERENCE IN BONDS TO SUPPLEMENTAL INDENTURES. Bonds
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Bonds so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Bonds.
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ARTICLE X
Miscellaneous
Section 10.01 COMPLIANCE CERTIFICATES AND OPINIONS. etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with;
(4) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with; and
(5) if the signatory of such certificate or opinion is required to be
Independent, the statement required by the definition of the term
"Independent".
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 10.01 (a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days prior to such deposit) to the
Issuer of the Collateral or other property or securities to be so deposited and
a report from a nationally recognized accounting firm verifying such value.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent Certificate from
a nationally recognized accounting firm as to the same matters, if the fair
value of the securities to be so deposited and of all other such securities
made the
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basis of any such withdrawal or release since the commencement of the then
current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (ii), is 10% or more
of the Bond Principal Balances of the Bonds, but such a certificate need
not be furnished with respect to any securities so deposited, if the fair
value thereof as set forth in the related Officer's Certificate is less
than $25,000 or less than one percent of the Bond Principal Balances of the
Bonds.
(iii) Whenever any property or securities are to be released from
the lien of this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days prior
to such release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will not
impair the security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property or securities released from the lien
of this Indenture since the commencement of the then-current calendar year,
as set forth in the certificates required by clause (iii) above and this
clause (iv), equals 10% or more of the Bond Principal Balances of the
Bonds, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent of the then Bond Principal Balances of the Bonds.
Section 10.02 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Seller or the
Issuer, stating that the information with respect to such factual matters is in
the possession of the Seller or the Issuer, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
Section 10.03 ACTS OF BONDHOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Bondholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Bondholders in person
or by agents duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Bondholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01
hereof) conclusive in favor of the Indenture Trustee and the Issuer, if made in
the manner provided in this Section 10.03 hereof.
(b) The fact and date of the execution by any person of any such instrument
or writing may be proved in any manner that the Indenture Trustee deems
sufficient.
(c) The ownership of Bonds shall be proved by the Bond Registrar.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Bonds shall bind the Holder of every Bond
issued upon the registration thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Bond.
Section 10.04 NOTICES ETC., TO INDENTURE TRUSTEE ISSUER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Bondholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or act of Bondholders is to be made upon, given or
furnished to or filed with:
(i) the Indenture Trustee by any Bondholder or by the Issuer
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Indenture Trustee at the Corporate Trust
Office. The Indenture Trustee shall promptly transmit any notice received
by it from the Bondholders to the Issuer, or
(ii) the Issuer by the Indenture Trustee or by any Bondholder
shall be sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid
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to the Issuer addressed to: Impac CMB Trust Series 2001-3, in care of
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000- 0000, Attention: Corporate Trust
Administration, or at any other address previously furnished in writing to
the Indenture Trustee by the Issuer. The Issuer shall promptly transmit any
notice received by it from the Bondholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, mailed first-class
postage pre-paid, to (i) in the case of Moody's, at the following address:
Xxxxx'x Investors Service, Inc., Residential Mortgage Monitoring Department, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) in the case of Standard &
Poor's, at the following address: Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Surveillance
Department; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
Section 10.05 NOTICES TO BONDHOLDERS; WAIVER. Where this Indenture provides
for notice to Bondholders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
fast-class, postage prepaid to each Bondholder affected by such event, at such
Person's address as it appears on the Bond Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Bondholders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Bondholder shall affect the sufficiency of such notice with respect
to other Bondholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given regardless of
whether such notice is in fact actually received.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Bondholders shall be filed with the Indenture Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Bondholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to
give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute an Event of Default.
Section 10.06 CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
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The provisions of TIA xx.xx. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
Section 10.07 EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 10.08 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture and the Bonds by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents.
Section 10.09 SEPARABILITY. In case any provision in this Indenture or in
the Bonds shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.10 [RESERVED].
Section 10.11 LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Bonds or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 10.12 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.13 COUNTERPARTS. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 10.14 RECORDING OF INDENTURE. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
at its expense (which may be counsel to the Indenture Trustee or any other
counsel reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Bondholders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
Section 10.15 ISSUER OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Bonds or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of
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a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Indenture Trustee or the
Owner Trustee in its individual capacity, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in its individual capacity,
except as any such Person may have expressly agreed (it being understood that
the Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes of this Indenture, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Article VI, VII and VIII of the Trust Agreement.
Section 10.16 NO PETITION. The Indenture Trustee, by entering into this
Indenture, and each Bondholder, by accepting a Bond, hereby covenant and agree
that they will not at any time prior to one year from the date of termination
hereof, institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Bonds, this Indenture or any
of the Basic Documents.
Section 10.17 INSPECTION. The Issuer agrees that, at its expense, on
reasonable prior notice, it shall permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees, and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
65
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
IMPAC CMB TRUST SERIES 2001-3,
as Issuer
Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By: ____________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as Indenture Trustee
By: ____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Associate
STATE OF )
) ss.:
COUNTY OF )
On this 30th day of October 2001, before me personally appeared Xxxxx X.
Xxxxxxx to me known, who being by me duly sworn, did depose and say, that he is
the Associate of the Indenture Trustee, one of the corporations described in and
which executed the above instrument; and that she signed her name thereto by
like order.
Notary Public
____________________________
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF DELAWARE )
) ss.:
COUNTY OF NEW CASTLE )
On this 30th day of October, 2001, before me personally appeared Xxxxx X.
Xxxxxx to me known, who being by me duly sworn, did depose and say, that he
resides at Wilmington Trust Company and is the Vice President of the Owner
Trustee, one of the corporations described in and which executed the above
instrument; and that he signed his name thereto by like order.
Notary Public
____________________________________
NOTARY PUBLIC
[NOTARIAL SEAL]
EXHIBIT A-1
FORM OF CLASS [A-1][A-2] BONDS
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS BOND OR BENEFICIAL OWNER OF ANY INTEREST HEREIN WILL BE
DEEMED TO REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION 4.15 OF
THE INDENTURE.
THIS BOND IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF
PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST AS PROVIDED IN THE INDENTURE
REFERRED TO BELOW. THE ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON
THIS BOND.
PRINCIPAL OF THIS BOND IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS BOND AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
A-1-1
IMPAC CMB TRUST SERIES 2001-3
COLLATERALIZED ASSET-BACKED BONDS
CLASS [A-1][A-2]
AGGREGATE BOND PRINCIPAL BOND INTEREST
BALANCE: RATE: ______%
$_____________________
INITIAL BOND PRINCIPAL BOND NO. ___
BALANCE OF THIS BOND: $___________________
PERCENTAGE INTEREST: _______% CUSIP NO. ______________
Impac CMB Trust Series 2001-3 (the "Issuer"), a Delaware business trust,
for value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of _____________________________ ($____________) in monthly
installments on the twenty-fifth day of each month or, if such day is not a
Business Day, the next succeeding Business Day (each a "Payment Date"),
commencing in November 2001 and ending on or before the Payment Date occurring
in October 2031 (the "Final Scheduled Payment Date") and to pay interest on the
Bond Principal Balance of this Bond (this "Bond") outstanding from time to time
as provided below.
This Bond is one of a duly authorized issue of the Issuer's Collateralized
Asset-Backed Bonds, Series 2001-3 (the "Bonds"), issued under an Indenture dated
as of October 30, 2001 (the "Indenture"), between the Issuer and Bankers Trust
Company of California, N.A., as indenture trustee (the "Indenture Trustee",
which term includes any successor Indenture Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights thereunder of the Issuer, the Indenture
Trustee, and the Holders of the Bonds and the terms upon which the Bonds are to
be authenticated and delivered. All terms used in this Bond which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
Payments of principal and interest on this Bond will be made on each
Payment Date to the Bondholder of record as of the related Record Date. The
"Bond Principal Balance" of a Bond as of any date of determination is equal to
the initial Bond Principal Balance thereof, reduced by the aggregate of all
amounts previously paid with respect to such Bond on account of principal and
the aggregate amount of cumulative Realized Losses allocated to such Bond on all
prior Payment Dates.
The principal of, and interest on, this Bond are due and payable as
described in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. All payments made by the Issuer with respect to this Bond shall
be equal to this Bond's pro rata share of the aggregate payments on all Class
[A-1][A-2] Bonds as described above, and shall be applied as between interest
and principal as provided in the Indenture.
A-1-2
All principal and interest accrued on the Bonds, if not previously paid,
will become finally due and payable at the Final Scheduled Payment Date.
The Bonds are subject to redemption in whole, but not in part, by the
Holder of the Certificates on any Payment Date on or after the earlier of (i)
the Payment Date on which the aggregate Stated Principal Balance of the Mortgage
Loans is less than or equal to 20% of the aggregate Stated Principal Balance of
the Mortgage Loans as of Cut-off Date and (ii) the Payment Date in November
2011.
The Issuer shall not be liable upon the indebtedness evidenced by the Bonds
except to the extent of amounts available from the Trust Estate which
constitutes security for the payment of the Bonds. The assets included in the
Trust Estate will be the sole source of payments on the Class A Bonds, and each
Holder hereof, by its acceptance of this Bond, agrees that (i) such Bond will be
limited in right of payment to amounts available from the Trust Estate as
provided in the Indenture and (ii) such Holder shall have no recourse to the
Issuer, the Owner Trustee, the Indenture Trustee, IMH Assets Corp., Impac
Mortgage Holdings, Inc., the Master Servicer or any of their respective
affiliates, or to the assets of any of the foregoing entities, except the assets
of the Issuer pledged to secure the Class A Bonds pursuant to the Indenture and
the rights conveyed to the Issuer under the Indenture.
Any payment of principal or interest payable on this Bond which is
punctually paid on the applicable Payment Date shall be paid to the Person in
whose name such Xxxx is registered at the close of business on the Record Date
for such Payment Date by check mailed to such person's address as it appears in
the Bond Register on such Record Date, except for the final installment of
principal and interest payable with respect to such Bond, which shall be payable
as provided below. Notwithstanding the foregoing, upon written request with
appropriate instructions by the Holder of this Bond delivered to the Indenture
Trustee at least five Business Days prior to the Record Date, any payment of
principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Xxxxxx. All reductions in the principal amount of a Bond (or
one or more Predecessor Bonds) effected by payments of principal made on any
Payment Date shall be binding upon all Holders of this Bond and of any bond
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, whether or not such payment is noted on such Bond. The final
payment of this Bond shall be payable upon presentation and surrender thereof on
or after the Payment Date thereof at the Corporate Trust Office or the office or
agency of the Issuer maintained by it for such purpose pursuant to Section 3.02
of the Indenture.
Subject to the foregoing provisions, each Bond delivered under the
Indenture, upon registration of transfer of or in exchange for or in lieu of any
other Bond shall carry the right to unpaid principal and interest that were
carried by such other Bond.
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Bonds, the Bonds may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs [prior to the payment of the entire unpaid
Bond Principal Balance of the Bonds], the amount payable to the Holder of this
Bond will be equal to the sum of the unpaid Bond Principal Balance of the Bonds,
together with
A-1-3
accrued and unpaid interest thereon as described in the Indenture. The Indenture
provides that, notwithstanding the acceleration of the maturity of the Bonds,
under certain circumstances specified therein, all amounts collected as proceeds
of the Trust Estate securing the Bonds or otherwise shall continue to be applied
to payments of principal of and interest on the Bonds as if they had not been
declared due and payable.
The failure to pay any Unpaid Interest Shortfall at any time when funds are
not available to make such payment as provided in the Indenture shall not
constitute an Event of Default under the Indenture.
The Holder of this Bond or Beneficial Owner of any interest herein is
deemed to represent that either (1) it is not acquiring the Bond with the assets
of a Plan or (2) the acquisition and holding of a Bond will not give rise to a
nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code as a result of the Issuer, the Seller, the Depositor, the Underwriters,
the Owner Trustee, the Indenture Trustee, the Master Servicer, any Subservicer,
any other servicer, any administrator, any provider of credit support, including
the Derivative Contract Counterparties, any owner of the Certificates, or any of
their Affiliates being a "Party in Interest" (within the meaning of ERISA) or
Disqualified Person (within the meaning of the Code) with respect to such Holder
or Beneficial Owner that is a Plan.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond may be registered on the Bond Register of the
Issuer. Upon surrender for registration of transfer of, or presentation of a
written instrument of transfer for, this Bond at the office or agency designated
by the Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the Indenture Trustee, one or more new Bonds
of any authorized denominations and of a like aggregate initial Bond Principal
Balance, will be issued to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of this Bond, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Bond is registered as the owner
of such Bond (i) on the applicable Record Date for the purpose of making
payments and interest of such Bond, and (ii) on any other date for all other
purposes whatsoever, as the owner hereof, whether or not this Bond be overdue,
and neither the Issuer, the Indenture Trustee nor any such agent of the Issuer
or the Indenture Trustee shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Bonds under the Indenture at any
time by the Issuer and the Holders of a majority of all Bonds at the time
outstanding. The Indenture also contains provisions permitting the Holders of
Bonds representing specified percentages of the aggregate Bond Principal Balance
of the Bonds on behalf of the Holders of all the Bonds, to waive any past
Default under the Indenture and its consequences. Any such waiver by the Holder,
at the time of the giving thereof, of this Bond (or any one or more Predecessor
Bonds) shall bind the Holder of every Bond issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not notation
of such consent or waiver is made upon such Bond. The Indenture also permits the
Issuer and the Indenture Trustee to amend or
A-1-4
waive certain terms and conditions set forth in the Indenture without the
consent of the Holders of the Bonds issued thereunder.
Initially, the Bonds will be registered in the name of Cede & Co. as
nominee of DTC, acting in its capacity as the Depository for the Bonds. The
Bonds will be delivered by the clearing agency in denominations as provided in
the Indenture and subject to certain limitations therein set forth. The Bonds
are exchangeable for a like aggregate initial Bond Principal Balance of Bonds of
different authorized denominations, as requested by the Holder surrendering
same.
Unless the Certificate of Authentication hereon has been executed by the
Indenture Trustee by manual signature, this Bond shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.
AS PROVIDED IN THE INDENTURE, THIS BOND AND THE INDENTURE CREATING THIS
BOND SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
A-1-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated: October 30, 2001
IMPAC CMB TRUST SERIES 2001-3
BY: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely in its capacity as Owner Trustee
By: ____________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1][A-2] Bonds referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A., as Indenture Trustee
By: ____________________________________
Authorized Signatory
A-1-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of
the Bond, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- __________ Custodian
______________________________
(Cust) (Minor)
under Uniform Gifts to Minor Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
A-1-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Please print or typewrite name and address, including zip code, of assignee)
_______________________________________________________________________________
the within Bond and all rights thereunder, and hereby irrevocably constitutes
and appoints ________________________ attorney to transfer said Xxxx on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:____________________ _________________________________________
Signature Guaranteed by __________________________________________
NOTICE: The signature(s) to this assignment must correspond with the name
as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatsoever. Signature(s) must be
guaranteed by a commercial bank or by a member firm of the New York Stock
Exchange or another national securities exchange. Notarized or witnessed
signatures are not acceptable.
A-1-8
EXHIBIT A-2
FORM OF CLASS [M][B] BONDS
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS BOND OR BENEFICIAL OWNER OF ANY INTEREST HEREIN WILL BE
DEEMED TO REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION 4.15 OF
THE INDENTURE.
THIS BOND IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF
PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE
REFERRED TO BELOW. THE ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON
THIS BOND.
PRINCIPAL OF THIS BOND IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS BOND AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
A-2-1
IMPAC CMB TRUST SERIES 2001-3
COLLATERALIZED ASSET-BACKED BONDS
CLASS [M-1][M-2][B]
AGGREGATE BOND PRINCIPAL BOND INTEREST
BALANCE: RATE: ______%
$______________
INITIAL BOND PRINCIPAL BOND NO. ___
BALANCE OF THIS BOND:
$______________
PERCENTAGE INTEREST: _______% CUSIP NO. ______________
Impac CMB Trust Series 2001-3 (the "Issuer"), a Delaware business trust,
for value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ______________________________ ($___________) in monthly
installments on the twenty-fifth day of each month or, if such day is not a
Business Day, the next succeeding Business Day (each a "Payment Date"),
commencing in November 2001 and ending on or before the Payment Date occurring
in October 2031 (the "Final Scheduled Payment Date") and to pay interest on the
Bond Principal Balance of this Bond (this "Bond") outstanding from time to time
as provided below.
This Bond is one of a duly authorized issue of the Issuer's Collateralized
Asset-Backed Bonds, Series 2001-3 (the "Bonds"), issued under an Indenture dated
as of October 30, 2001 (the "Indenture"), between the Issuer and Bankers Trust
Company of California, N.A., as indenture trustee (the "Indenture Trustee",
which term includes any successor Indenture Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights thereunder of the Issuer, the Indenture
Trustee, and the Holders of the Bonds and the terms upon which the Bonds are to
be authenticated and delivered. All terms used in this Bond which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
Payments of principal and interest on this Bond will be made on each
Payment Date to the Bondholder of record as of the related Record Date. The
"Bond Principal Balance" of a Bond as of any date of determination is equal to
the initial Bond Principal Balance thereof, reduced by the aggregate of all
amounts previously paid with respect to such Bond on account of principal and
the aggregate amount of cumulative Realized Losses allocated to such Bond on all
prior Payment Dates.
The principal of, and interest on, this Bond are due and payable as
described in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. All payments made by the Issuer with respect to this Bond shall
be equal to this Bond's pro rata share of the aggregate payments on all Class
[M-1][M-2][B] Bonds
A-2-2
as described above, and shall be applied as between interest and principal as
provided in the Indenture.
All principal and interest accrued on the Bonds, if not previously paid,
will become finally due and payable at the Final Scheduled Payment Date.
The Bonds are subject to redemption in whole, but not in part, by the
Holder of the Certificates on any Payment Date on or after the earlier of (i)
the Payment Date on which the aggregate Stated Principal Balance of the Mortgage
Loans is less than or equal to 20% of the aggregate Stated Principal Balance of
the Mortgage Loans as of Cut-off Date and (ii) the Payment Date in November
2011.
The Issuer shall not be liable upon the indebtedness evidenced by the Bonds
except to the extent of amounts available from the Trust Estate which
constitutes security for the payment of the Bonds. The assets included in the
Trust Estate will be the sole source of payments on the Class B Bonds, and each
Holder hereof, by its acceptance of this Bond, agrees that (i) such Bond will be
limited in right of payment to amounts available from the Trust Estate as
provided in the Indenture and (ii) such Holder shall have no recourse to the
Issuer, the Owner Trustee, the Indenture Trustee, IMH Assets Corp., Impac
Mortgage Holdings, Inc., the Master Servicer or any of their respective
affiliates, or to the assets of any of the foregoing entities, except the assets
of the Issuer pledged to secure the Class [M-1][M-2][B] Bonds pursuant to the
Indenture and the rights conveyed to the Issuer under the Indenture.
Any payment of principal or interest payable on this Bond which is
punctually paid on the applicable Payment Date shall be paid to the Person in
whose name such Xxxx is registered at the close of business on the Record Date
for such Payment Date by check mailed to such person's address as it appears in
the Bond Register on such Record Date, except for the final installment of
principal and interest payable with respect to such Bond, which shall be payable
as provided below. Notwithstanding the foregoing, upon written request with
appropriate instructions by the Holder of this Bond delivered to the Indenture
Trustee at least five Business Days prior to the Record Date, any payment of
principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Xxxxxx. All reductions in the principal amount of a Bond (or
one or more Predecessor Bonds) effected by payments of principal made on any
Payment Date shall be binding upon all Holders of this Bond and of any bond
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, whether or not such payment is noted on such Bond. The final
payment of this Bond shall be payable upon presentation and surrender thereof on
or after the Payment Date thereof at the Corporate Trust Office or the office or
agency of the Issuer maintained by it for such purpose pursuant to Section 3.02
of the Indenture.
Subject to the foregoing provisions, each Bond delivered under the
Indenture, upon registration of transfer of or in exchange for or in lieu of any
other Bond shall carry the right to unpaid principal and interest that were
carried by such other Bond.
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Bonds, the Bonds may become or be declared due
and payable in the manner and with the
A-2-3
effect provided in the Indenture. If any such acceleration of maturity occurs
prior to the payment of the entire unpaid Bond Principal Balance of the Bonds,
the amount payable to the Holder of this Bond will be equal to the sum of the
unpaid Bond Principal Balance of the Bonds, together with accrued and unpaid
interest thereon as described in the Indenture. The Indenture provides that,
notwithstanding the acceleration of the maturity of the Bonds, under certain
circumstances specified therein, all amounts collected as proceeds of the Trust
Estate securing the Bonds or otherwise shall continue to be applied to payments
of principal of and interest on the Bonds as if they had not been declared due
and payable.
The failure to pay any Unpaid Interest Shortfall at any time when funds are
not available to make such payment as provided in the Indenture shall not
constitute an Event of Default under the Indenture.
The Holder of this Bond or Beneficial Owner of any interest herein is
deemed to represent that either (1) it is not acquiring the Bond with the assets
of a Plan; or (2) the acquisition and holding of a Bond will not give rise to a
nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code as a result of the Issuer, the Seller, the Depositor, the Underwriters,
the Owner Trustee, the Indenture Trustee, the Master Servicer, any Subservicer,
any other servicer, any administrator, any provider of credit support, including
the Derivative Contract Counterparties, any owner of the Certificates, or any of
their Affiliates being a "Party in Interest" (within the meaning of ERISA) or
Disqualified Person (within the meaning of the Code) with respect to such Holder
or Beneficial Owner that is a Plan.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond may be registered on the Bond Register of the
Issuer. Upon surrender for registration of transfer of, or presentation of a
written instrument of transfer for, this Bond at the office or agency designated
by the Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the Indenture Trustee, one or more new Bonds
of any authorized denominations and of a like aggregate initial Bond Principal
Balance, will be issued to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of this Bond, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Bond is registered as the owner
of such Bond (i) on the applicable Record Date for the purpose of making
payments and interest of such Bond, and (ii) on any other date for all other
purposes whatsoever, as the owner hereof, whether or not this Bond be overdue,
and neither the Issuer, the Indenture Trustee nor any such agent of the Issuer
or the Indenture Trustee shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Bonds under the Indenture at any
time by the Issuer and the Holders of a majority of all Bonds at the time
outstanding. The Indenture also contains provisions permitting the Holders of
Bonds representing specified percentages of the aggregate Bond Principal Balance
of the Bonds on behalf of the Holders of all the Bonds, to waive any past
Default under the Indenture and its consequences.
A-2-4
Any such waiver by the Holder, at the time of the giving thereof, of this Bond
(or any one or more Predecessor Bonds) shall bind the Holder of every Bond
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon such
Bond. The Indenture also permits the Issuer and the Indenture Trustee to amend
or waive certain terms and conditions set forth in the Indenture without the
consent of the Holders of the Bonds issued thereunder.
Initially, the Bonds will be registered in the name of Cede & Co. as
nominee of DTC, acting in its capacity as the Depository for the Bonds. The
Bonds will be delivered by the clearing agency in denominations as provided in
the Indenture and subject to certain limitations therein set forth. The Bonds
are exchangeable for a like aggregate initial Bond Principal Balance of Bonds of
different authorized denominations, as requested by the Holder surrendering
same.
Unless the Certificate of Authentication hereon has been executed by the
Indenture Trustee by manual signature, this Bond shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.
AS PROVIDED IN THE INDENTURE, THIS BOND AND THE INDENTURE CREATING THIS
BOND SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
A-2-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated: October 30, 2001
IMPAC CMB TRUST SERIES 2001-3
BY: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
in its capacity as Owner Trustee
By: ____________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class [M-1][M-2][B] Bonds referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY OF CALIFORNIA, N.A., as Indenture Trustee
By:__________________________________________
Authorized Signatory
A-2-6
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face of
the Bond, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- __________ Custodian
____________________________
(Cust) (Minor)
under Uniform Gifts to Minor Act
____________________________
(State)
Additional abbreviations may also be used though not in the above list.
A-2-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
(Please print or typewrite name and address, including zip code, of assignee)
_______________________________________________________________________________
the within Bond and all rights thereunder, and hereby irrevocably constitutes
and appoints ________________________ attorney to transfer said Xxxx on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:_____________________ _______________________________________
Signature Guaranteed by ________________________________________________________
NOTICE: The signature(s) to this assignment must correspond with the name
as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatsoever. Signature(s) must be
guaranteed by a commercial bank or by a member firm of the New York Stock
Exchange or another national securities exchange. Notarized or witnessed
signatures are not acceptable.
A-2-8
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(provided upon request)
B-1
EXHIBIT C
FORM OF INITIAL CERTIFICATION
_________________, 2000
[Issuer]
[Master Servicer]
Attention: Impac CMB Trust Series 2001-3
Re: Indenture dated as of October 30, 2001, between Impac
CMB Trust Series 2001-3 And Bankers Trust Company of
California, N.A.
------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.03(a) of the above-captioned Indenture,
and Section 2.1(b)(i)-(v) of the Mortgage Loan Sale and Contribution Agreement,
dated as of October 30, 2001 between Impac Mortgage Holdings, Inc. (formerly
known as Imperial Credit Mortgage Holdings, Inc.) and Impac Funding Corporation
(formerly known as ICI Funding Corporation) (the "MLSCA"; and together with the
Indenture, the "Agreements"), the undersigned, as Indenture Trustee, hereby
certifies that as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or listed on the exception report
attached hereto) it has reviewed the Mortgage File and the Mortgage Loan
Schedule and has determined that: (i) all documents required to be included in
the Mortgage File are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; and
(iii) based on examination by it, and only as to such documents, the information
set forth in items (iii) and (v) of the definition or description of "Mortgage
Loan Schedule" is correct.
The Indenture Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the above-referenced Agreements. The Indenture Trustee makes no
representation that any documents specified in clause (v) of Section 2.1 (b) of
the MLSCA should be included in any Mortgage File. The Indenture Trustee makes
no representations as to and shall not be responsible to verify: (i) the
validity, legality, sufficiency, enforceability, due authorization,
recordability or genuineness of any of the documents contained in each Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan, or (iii) the existence of any assumption, modification, written
assurance or substitution agreement with respect to any Mortgage File if no such
documents appear in the Mortgage File delivered to the Indenture Trustee.
C-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Indenture.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Indenture Trustee
By:____________________________
Name:
Title:
C-2
EXHIBIT D
FORM OF FINAL CERTIFICATION
______________, 200__
[Issuer]
[Master Servicer]
Attention: Impac CMB Trust Series 2001-3
Re: Indenture, dated as of October 30, 2001, between Impac CMB Trust
Series 2001-3 and Bankers Trust Company of California, N.A.
----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.03(b) of the above-captioned Indenture,
and Section 2.1(b) of the Mortgage Loan Sale and Contribution Agreement, dated
as of October 30, 2001, between Impac Mortgage Holdings, Inc. (formerly known as
Imperial Credit Mortgage Holdings, Inc.) and Impac Funding Corporation (formerly
known as ICI Funding Corporation) (the "MLSCA"; and together with the Indenture,
the "Agreements"), the undersigned, as Indenture Trustee, hereby certifies that
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the exception report attached hereto) it
has received the documents set forth in Section 2.1 (b) of the MLSCA.
The Indenture Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Agreements. The Indenture Trustee makes no representation that
any documents specified in clause (v) of Section 2.1 (b) should be included in
any Mortgage File. The Indenture Trustee makes no representations as to and
shall not be responsible to verify: (i) the validity, legality, sufficiency,
enforceability, due authorization, recordability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance or substitution agreement with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the indenture Trustee.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Indenture.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Indenture Trustee
D-1
By:___________________________
Name:
Title:
D-2
EXHIBIT E
DERIVATIVE CONTRACTS
E-1
EXHIBIT F
SPECIAL CERTIFICATE CAP CONTRACT
F-1
EXHIBIT G
ADDITION NOTICE
November ___, 2001
Bankers Trust Company of California, N.A.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
RE: Indenture, dated as of October 30, 2001, between Impac CMB Trust
Series 2001-3, a Delaware business trust, as Issuer (the "Issuer"),
and Bankers Trust Company of California, N.A., a national banking
association, as Indenture Trustee (the "Indenture Trustee"), relating
to IMH Assets Corp., Collateralized Asset-Backed Bonds, Series 2001-3
Subsequent Transfer
---------------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.05 of the Indenture, Issuer has designated
Subsequent Mortgage Loans to be transfered to the Indenture Trustee on November
___, 2001, with an approximate aggregate principal balance of
[$_________________]. Capitalized terms not otherwise defined herein have the
meaning set forth in the Indenture.
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
IMPAC CMB TRUST SERIES 2001-3, as
Issuer
Wilmington Trust Company, not
in its individual capacity but
solely as Owner Trustee
By:____________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
G-1
ACKNOWLEDGED AND AGREED:
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.
By:_______________________________________
Name:
Title:
G-2
EXHIBIT H
SUBSEQUENT TRANSFER INSTRUMENT
(Provided Upon Request)
H-1
