Exhibit 4.1
IMPAC CMB TRUST SERIES 2004-6
Issuer
and
XXXXX FARGO BANK, N.A.
Indenture Trustee
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INDENTURE
Dated as of June 29, 2004
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COLLATERALIZED ASSET-BACKED BONDS
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TABLE OF CONTENTS
Section Page
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ARTICLE I
Definitions
Section 1.01 Definitions........................................................................3
Section 1.02 Incorporation by Reference of Trust Indenture Act..................................3
Section 1.03 Rules of Construction..............................................................3
Bonds
Section 2.01 Form...............................................................................5
Section 2.02 Execution, Authentication and Delivery.............................................5
Section 2.03 Acceptance of Mortgage Loans by Indenture Trustee..................................6
Section 2.04 Acceptance of Derivative Contracts and Special Certificate Cap Contract by
Indenture Trustee.................................................................................7
Section 2.05 Conveyance of the Group 1 Subsequent Mortgage Loans................................7
Section 2.06 Conveyance of the Group 2 Subsequent Mortgage Loans...............................10
Covenants
Section 3.01 Collection of Payments with respect to the Mortgage Loans.........................14
Section 3.02 Maintenance of Office or Agency...................................................14
Section 3.03 Money for Payments To Be Held in Trust; Paying Agent..............................14
Section 3.04 Existence.........................................................................15
Section 3.05 Payment of Principal and Interest.................................................16
Section 3.06 Protection of Trust Estate........................................................21
Section 3.07 Opinions as to Trust Estate.......................................................22
Section 3.08 Performance of Obligations........................................................22
Section 3.09 Negative Covenants................................................................23
Section 3.10 Annual Statement as to Compliance.................................................24
Section 3.11 Representations and Warranties Concerning the Mortgage Loans......................24
Section 3.12 Amendments to Servicing Agreement.................................................24
Section 3.13 Master Servicer as Agent and Bailee of the Indenture Trustee......................24
Section 3.14 Investment Company Act............................................................24
Section 3.15 Issuer May Consolidate, etc.......................................................25
Section 3.16 Successor or Transferee...........................................................26
Section 3.17 No Other Business.................................................................27
Section 3.18 No Borrowing......................................................................27
Section 3.19 Guarantees, Loans, Advances and Other Liabilities.................................27
Section 3.20 Capital Expenditures..............................................................27
Section 3.21 Determination of Bond Interest Rate...............................................27
Section 3.22 Restricted Payments...............................................................27
Section 3.23 Notice of Events of Default.......................................................28
Section 3.24 Further Instruments and Acts......................................................28
Section 3.25 Statements to Bondholders.........................................................28
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Section 3.26 Certain Representations Regarding the Trust Estate................................28
Section 3.27 [Reserved]........................................................................29
Section 3.28 [Reserved]........................................................................29
Section 3.29 Replacement Derivative Contracts..................................................29
Section 3.30 [Reserved]........................................................................30
Section 3.31 Allocation of Realized Losses.....................................................30
Section 3.32 The Group 1 Pre-Funding Account...................................................30
Section 3.33 The Group 2 Pre-Funding Account...................................................31
The Bonds; Satisfaction and Discharge of Indenture
Section 4.01 The Bonds.........................................................................34
Section 4.02 Registration of and Limitations on Transfer and Exchange of Bonds;
Appointment of Bond Registrar and Certificate Registrar..........................................34
Section 4.03 Mutilated, Destroyed, Lost or Stolen Bonds........................................35
Section 4.04 Persons Deemed Owners.............................................................36
Section 4.05 Cancellation......................................................................36
Section 4.06 Book-Entry Bonds..................................................................36
Section 4.07 Notices to Depository.............................................................37
Section 4.08 Definitive Bonds..................................................................37
Section 4.09 Tax Treatment.....................................................................38
Section 4.10 Satisfaction and Discharge of Indenture...........................................38
Section 4.11 Application of Trust Money........................................................39
Section 4.12 [Reserved]........................................................................39
Section 4.13 Repayment of Monies Held by Paying Agent..........................................39
Section 4.14 Temporary Bonds...................................................................39
Section 4.15 Representation Regarding ERISA....................................................40
ARTICLE V
Default and Remedies
Section 5.01 Events of Default.................................................................41
Section 5.02 Acceleration of Maturity; Rescission and Annulment................................41
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.........42
Section 5.04 Remedies; Priorities..............................................................44
Section 5.05 Optional Preservation of the Trust Estate.........................................46
Section 5.06 Limitation of Suits...............................................................46
Section 5.07 Unconditional Rights of Bondholders To Receive Principal and Interest.............47
Section 5.08 Restoration of Rights and Remedies................................................47
Section 5.09 Rights and Remedies Cumulative....................................................47
Section 5.10 Delay or Omission Not a Waiver....................................................47
Section 5.11 Control By Bondholders............................................................48
Section 5.12 Waiver of Past Defaults...........................................................48
Section 5.13 Undertaking for Costs.............................................................48
Section 5.14 Waiver of Stay or Extension Laws..................................................49
Section 5.15 Sale of Trust Estate..............................................................49
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Section 5.16 Action on Bonds...................................................................50
Section 5.17 Performance and Enforcement of Certain Obligations................................51
ARTICLE VI
The Indenture Trustee
Section 6.01 Duties of Indenture Trustee.......................................................52
Section 6.02 Rights of Indenture Trustee.......................................................53
Section 6.03 Individual Rights of Indenture Trustee............................................54
Section 6.04 Indenture Trustee's Disclaimer....................................................54
Section 6.05 Notice of Event of Default........................................................54
Section 6.06 Reports by Indenture Trustee to Holders and Tax Administration....................54
Section 6.07 Compensation and Indemnity........................................................54
Section 6.08 Replacement of Indenture Trustee..................................................55
Section 6.09 Successor Indenture Trustee by Merger.............................................56
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.................56
Section 6.11 Xxxxxxxxxxx; Disqualification.....................................................57
Section 6.12 Preferential Collection of Claims Against Issuer..................................57
Section 6.13 Representations and Warranties....................................................57
Section 6.14 Directions to Indenture Trustee...................................................58
Section 6.15 The Agents........................................................................58
ARTICLE VII
Bondholders' Lists and Reports
Section 7.01 Issuer To Furnish Indenture Trustee Names and Addresses of Bondholders............59
Section 7.02 Preservation of Information; Communications to Bondholders........................59
Section 7.03 Reports of Issuer.................................................................59
Section 7.04 Reports by Indenture Trustee......................................................60
Section 7.05 Statements to Bondholders.........................................................60
ARTICLE VIII
Accounts, Disbursements and Releases
Section 8.01 Collection of Money...............................................................63
Section 8.02 Trust Accounts....................................................................63
Section 8.03 Officer's Certificate.............................................................63
Section 8.04 Termination Upon Distribution to Bondholders......................................64
Section 8.05 Release of Trust Estate...........................................................64
Section 8.06 Surrender of Bonds Upon Final Payment.............................................64
Section 8.07 Optional Redemption of the Bonds..................................................64
ARTICLE IX
Supplemental Indentures
Section 9.01 Supplemental Indentures Without Consent of Bondholders............................66
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Section 9.02 Supplemental Indentures With Consent of Bondholders...............................67
Section 9.03 Execution of Supplemental Indentures..............................................69
Section 9.04 Effect of Supplemental Indenture..................................................69
Section 9.05 Conformity with Trust Indenture Act...............................................69
Section 9.06 Reference in Bonds to Supplemental Indentures.....................................69
ARTICLE X
Miscellaneous
Section 10.01 Compliance Certificates and Opinions, etc.........................................70
Section 10.02 Form of Documents Delivered to Indenture Trustee..................................71
Section 10.03 Acts of Bondholders...............................................................72
Section 10.04 Notices etc., to Indenture Trustee Issuer and Rating Agencies.....................72
Section 10.05 Notices to Bondholders; Waiver....................................................73
Section 10.06 Conflict with Trust Indenture Act.................................................74
Section 10.07 Effect of Headings................................................................74
Section 10.09 Separability......................................................................74
Section 10.10 [Reserved]........................................................................74
Section 10.11 Legal Holidays....................................................................74
Section 10.12 GOVERNING LAW.....................................................................74
Section 10.13 Counterparts......................................................................74
Section 10.14 Recording of Indenture............................................................74
Section 10.15 Issuer Obligation.................................................................75
Section 10.16 No Petition.......................................................................75
Section 10.17 Inspection........................................................................75
ARTICLE XI
Certain Matters Regarding the Bond Insurer
Section 11.01 Rights of the Bond Insurer to Exercise the Rights of the Class 1-A-2 Bonds........76
Section 11.02 Claims Upon the Bond Insurance Policy; Insurance Account..........................76
Section 11.03 Effect of Payments by the Bond Insurer; Subrogation..............................77
Section 11.04 Notices and Information to the Bond Insurer.......................................77
Section 11.05 Trustee to Hold Bond Insurance Policy.............................................78
EXHIBITS
Exhibit A-1 -- Form of Class [_-A-_] Bonds
Exhibit A-2 -- Form of Class M-[_]-[_] Bonds
Exhibit B -- Mortgage Loan Schedule
Exhibit C -- Derivative Contracts
Exhibit D -- Special Certificate Cap Contract
Exhibit E -- Subsequent Transfer Instrument
Appendix A -- Definitions
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This Indenture, dated as of June 29, 2004, is entered into between
Impac CMB Trust Series 2004-6, a Delaware statutory trust, as Issuer (the
"Issuer"), and Xxxxx Fargo Bank, 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 2004-6 (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 each of the Group 1 Pre-Funding Account
and Group 2 Pre-Funding Account and in all proceeds thereof; (e) all rights
under (i) the Mortgage Loan Purchase Agreement as assigned to the Issuer, with
respect to the Initial Mortgage Loans, and each Group 1 Subsequent Mortgage Loan
Purchase Agreement and Group 2 Subsequent Mortgage Loan Purchase Agreement as
assigned to the Issuer, with respect to the Group 1 Subsequent Mortgage Loans
and Group 2 Subsequent Mortgage Loans, respectively, (ii) the Servicing
Agreement and any Subservicing Agreements, (iii) any title, hazard and primary
insurance policies with respect to the Mortgaged Properties, (iv)the Custodial
Agreement and (v) the rights with respect to the Derivative Contracts and the
Special Certificate Cap Contract as assigned to the Issuer; and (e) all present
and future claims, demands, causes and choses 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. The Indenture Trustee agrees that it will
hold the Bond Insurance Policy in trust and that it will hold any proceeds of
any claim made upon the Bond Insurance Policy solely for the use and benefit of
the Holders of
the Class 2-A Bonds in accordance with the terms hereof and the terms of the
Bond Insurance Policy.
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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;
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(v) words in the singular include the plural and words in the
plural include the singular; and
(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 and Class M 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 offices at the date of such Bonds.
The Indenture Trustee shall upon Issuer Request authenticate and deliver
the Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 2-A, Class M-1-1, Class M-2-1,
Class M-3-1, Class M-4-1, Class M-5-1, Class M-6-1, Class M-1-2, Class M-2-2,
Class M-3-2, Class M-4-2, Class M-5-2 and Class M-6-2 Bonds for original issue
in an aggregate initial principal amount of $2,200,000,000.00. The Class 1-A-1
Bonds shall be issued in an aggregate initial principal amount of
$205,000,000.00, the Class 1-A-2 Bonds shall be issued in an aggregate initial
principal amount of $1,368,000,000.00, the Class 1-A-3 Bonds shall be issued in
an aggregate initial principal amount of $152,000,000.00, the Class 2-A Bonds
shall be issued in an aggregate initial principal amount of $172,500,000.00, the
Class M-1-1 Bonds shall be issued in an aggregate initial principal amount of
$40,000,000.03, the Class M-2-1 Bonds shall be issued in an aggregate initial
principal amount of $65,000,000.05, the Class M-3-1 Bonds shall be issued in an
aggregate initial principal amount of $45,000,000.03, the Class M-4-1 Bonds
shall be issued in an aggregate initial principal amount of $45,000,000.03, the
Class M-5-1 Bonds shall be issued in an aggregate initial principal amount of
$50,000,000.03, the Class M-6-1 Bonds shall be issued in an aggregate initial
principal amount of $30,000,000.02, Class M-1-2 Bonds shall be issued in an
aggregate initial principal amount of $3,999,999.97, the Class M- 2-2 Bonds
shall be issued in an aggregate initial principal amount of $6,499,999.95, the
Class M-3-2 Bonds shall be issued in an aggregate initial principal amount of
$4,499,999.97, the Class M-4-2 Bonds shall be issued in an aggregate initial
principal amount of $4,499,999.97, the Class M-5-2 Bonds shall be issued in an
aggregate initial principal amount of $4,999,999.97 and the Class M-6-2 Bonds
shall be issued in an aggregate initial principal amount of $2,999,999.98.
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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
Custodian as agent for 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
Mortgage Loan Purchase 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 agent for the 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 applicable Subsequent Transfer Date, with respect to the related
Group 1 Subsequent Mortgage Loans and Group 2 Subsequent Mortgage Loans (or,
with respect to any Eligible Substitute Mortgage Loan, within 5 days after the
receipt by the Custodian as agent for the Indenture Trustee thereof and, with
respect to any documents received beyond 45 days after the Closing Date,
promptly thereafter), the Custodian as agent for 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, the Indenture Trustee and the Master Servicer an Initial Certification
in the form annexed to the Custodial Agreement as Exhibit One. In conducting
such review, the Custodian as agent for the Indenture Trustee will ascertain
whether all required documents described in Section 2.1(b) of (i) the Mortgage
Loan Purchase Agreement, with respect to the Initial Mortgage Loans, and (ii)
the applicable Group 1 Subsequent Mortgage Loan Purchase Agreements and Group 2
Subsequent Mortgage Loan Purchase Agreements, with respect to the related Group
1 Subsequent Mortgage Loans and Group 2 Subsequent Mortgage Loans, respectively,
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 in subclause (b)(vii) of such section, the Custodian's
obligations shall extend only to documents actually delivered pursuant to such
subclause). In performing any such review, the Custodian 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 Custodian as agent for
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 Custodian as agent for 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. To the extent the
Custodian as agent for the Indenture Trustee has not received a Mortgage File
with respect to any of the Initial Mortgage Loans by the Closing Date, or any of
the related Group 1 Subsequent Mortgage Loans and Group 2 Subsequent Mortgage
Loans by the applicable Subsequent Transfer Date, neither the Indenture Trustee
nor the Custodian as agent for the Indenture Trustee shall require
the deposit of cash into the Payment Account or any other account to cover the
amount
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of that Mortgage Loan and shall solely treat such Mortgage Loan as if it were in
breach of a representation or warranty; provided that the aggregate Stated
Principal Balance of such Mortgage Loans does not exceed 1% of the sum of the
Cut-off Date Balance and the Group 1 Original Pre-Funded Amount and Group 2
Original Pre-Funded Amount.
(b) No later than 180 days after the Closing Date (with respect to the
Initial Mortgage Loans) or the applicable Subsequent Transfer Date (with respect
to the related Group 1 Subsequent Mortgage Loans and Group 2 Subsequent Mortgage
Loans), the Custodian as agent for 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 and the Indenture Trustee, a
Final Certification in the form annexed to the Custodial Agreement as Exhibit
Two. In conducting such review, the Custodian as agent for 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 Purchase Agreement, with
respect to the Initial Mortgage Loans, and (ii) any Group 1 or Group 2
Subsequent Mortgage Loan Purchase Agreement, with respect to the related Group 1
Subsequent Mortgage Loans and Group 2 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
Custodian as agent for 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 Custodian as agent for the Indenture Trustee shall
promptly notify the Seller and the Indenture Trustee.
(c) Upon deposit of the Repurchase Price in the Payment Account, the
Custodian as agent for the Custodian as agent for 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 occurred on the
date on which the deposit of the Repurchase Price in the Payment Account was
received by the Indenture Trustee. The Custodian as agent for the Indenture
Trustee shall amend the applicable Mortgage Loan Schedule to reflect such
repurchase and shall promptly notify the Master Servicer, the Rating Agencies
and the Indenture Trustee of such amendment.
Section 2.04 Acceptance of Derivative Contracts and Special Certificate
Cap Contract by Indenture Trustee. 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 Group 1 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 applicable Subsequent Transfer Dates,
to or upon the written order of the Depositor, of all or a portion of the
balance of funds in the Group 1 Pre-Funding Account, the Depositor shall on any
Group 1 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
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and interest of the Depositor in and to (i) the related Group 1 Subsequent
Mortgage Loans identified on the Mortgage Loan Schedule attached to the related
Group 1 Subsequent Transfer Instrument delivered by the Depositor on such Group
1 Subsequent Transfer Date, (ii) all interest accruing thereon on and after the
Subsequent Cut-off Date (with respect to the Group 1 Subsequent Mortgage Loans)
and all collections in respect of interest and principal due after the
Subsequent Cut-off Date and (iii) all items with respect to such Group 1
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 Group 1 Subsequent Mortgage Loans prior to the
related Subsequent Cut-off Date. The transfer to the Indenture Trustee for
deposit in the Trust Estate by the Depositor of the Group 1 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 Group 1 Subsequent Mortgage
Loans by the Depositor to the Trust Estate. The related Mortgage File for each
Group 1 Subsequent Mortgage Loan shall be delivered to the Custodian as agent
for the Custodian as agent for 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 Group 1 Pre-Funding Account shall be one-hundred percent (100%) of the
aggregate Stated Principal Balance of the Group 1 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 Trust Estate the applicable Group 1 Subsequent Mortgage Loans and the other
property and rights related thereto as described in paragraph (a) above, and the
Indenture Trustee shall release such applicable funds from the Group 1
Pre-Funding Account, only upon the satisfaction of each of the following
conditions on or prior to the related Group 1 Subsequent Transfer Date:
(i) the Depositor shall have provided the Indenture Trustee, the
Bond Insurer 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 Group 1 Subsequent Mortgage Loans;
(ii) the Depositor shall have delivered to the Indenture Trustee a
duly executed Group 1 Subsequent Transfer Instrument (which the Indenture
Trustee is hereby authorized to execute), which shall include a Mortgage
Loan Schedule listing the Group 1 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 Custodian and
Indenture Trustee at least three (3) Business Days prior to the related
Group 1 Subsequent Transfer Date;
(iii) as of each Group 1 Subsequent Transfer Date, as evidenced by
delivery of the related Group 1 Subsequent Transfer Instrument,
substantially in the form of Exhibit G, 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;
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(iv) such sale and transfer shall not result in a material adverse
tax consequence to the Trust Estate or to the Bondholders;
(v) the Funding Period shall not have terminated;
(vi) the Depositor shall not have selected the applicable Group 1
Subsequent Mortgage Loans in a manner that it believed to be adverse to
the interests of the Bondholders or the Bond Insurer;
(vii) the Depositor shall have delivered to the Indenture Trustee
the related Group 1 Subsequent Transfer Instrument confirming the
satisfaction of the conditions precedent specified in this Section 2.05
and, pursuant to such Group 1 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
applicable Group 1 Subsequent Mortgage Loan Purchase Agreement, to the
extent of the related Group 1 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 applicable Group 1 Subsequent
Mortgage Loans substantially in the form of the Opinion of Counsel
delivered to the Indenture Trustee on the Closing Date regarding the
validity of the conveyance and the true sale of such Group 1 Subsequent
Mortgage Loans.
(c) The obligation of the Trust Estate to purchase a Group 1 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 Group
1 Subsequent Mortgage Loan determined as of the applicable Subsequent Cut-off
Date: (i) such 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 Mortgage Loan will be 360 months; (iii) each
Group 1 Subsequent Mortgage Loan must be an adjustable-rate mortgage loan with a
first lien on the related mortgaged property; (iv) no Group 1 Subsequent
Mortgage Loan will have a first payment date occurring after October 1, 2004;
(v) the latest maturity date of any Group 1 Subsequent Mortgage Loan will be no
later than September 1, 2034; (vi) none of the Group 1 Subsequent Mortgage Loans
will be a buydown loan; (vii) such Mortgage Loan will have a credit score of not
less than 500; (viii) such Mortgage Loan will have a Mortgage Rate as of the
applicable Subsequent Cut-off Date ranging from approximately 2.250% per annum
to approximately 10.250% per annum; (ix) none of the Group 1 Subsequent Mortgage
loans will be a New York State "high cost" loan; and (x) such Group 1 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 Group 1 Subsequent Mortgage
Loan by the Trust, the applicable Group 1 Subsequent Mortgage Loans will as of
the related Subsequent Cut-off Date: (i) have a weighted average Mortgage Rate
ranging from 5.150% to 5.500% per annum; (ii) consist of Mortgage Loans with
prepayment charges representing no less than approximately 65% of the Pool
Balance; (iii) have a weighted average credit score ranging from 670 to 705;
(iv) have no more than 70% of such Mortgage Loans concentrated in the state of
California;
9
(v) have no less than 75% of the mortgaged properties securing Group 1 Loans be
owner occupied; (vi) have no less than 50% of the mortgaged properties securing
Group 1 Loans be single family detached and de minimis planned unit
developments; (vii) have no more than 30% of the Group 1 Loans be cash-out
refinance; (viii) not have any of such group of Group 1 Subsequent Mortgage
Loans with a loan-to-value ratio greater than 80% not be covered by a Primary
Insurance Policy or the Radian Lender-Paid PMI Policy; (ix) have no more than
77% of the Group 1 Loans be Mortgage Loans with an interest only period; and (x)
together with the Group 1 Loans already included in the trust, have no more than
1.50% of such Mortgage Loans (by aggregate Stated Principal Balance as of the
Subsequent Cut-off Date) secured by mortgaged properties located in any one zip
code.
(e) Notwithstanding the foregoing, any Group 1 Subsequent Mortgage Loan
may be rejected by any Rating Agency if the inclusion of any such Group 1
Subsequent Mortgage Loan would adversely affect the ratings of the Bonds. In
addition, minor variances from the characteristics stated above will be
permitted with the consent of the Rating Agencies so long as there are
compensating factors, and the consent of the Rating Agencies to any group of
Group 1 Subsequent Mortgage Loans shall mean that the representations and
warranties set forth in clauses (c) and (d) above are accurate; provided,
however, that the information furnished to the Rating Agencies in respect of
such Group 1 Subsequent Mortgage Loans is true and correct in all material
respects. At least one (1) Business Day prior to the applicable Group 1
Subsequent Transfer Date, each Rating Agency shall notify the Indenture Trustee
as to which Group 1 Subsequent Mortgage Loans, if any, shall not be included in
the transfer on such Group 1 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 Group 1 Subsequent
Transfer Date a computer file acceptable to each Rating Agency describing the
characteristics specified in paragraphs (c) and (d) above.
Section 2.06 Conveyance of the Group 2 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 applicable Subsequent Transfer Dates,
to or upon the written order of the Depositor, of all or a portion of the
balance of funds in the Group 2 Pre-Funding Account, the Depositor shall on any
Group 2 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 related Group 2 Subsequent Mortgage Loans identified
on the Mortgage Loan Schedule attached to the related Group 2 Subsequent
Transfer Instrument delivered by the Depositor on such Group 2 Subsequent
Transfer Date, (ii) all interest accruing thereon on and after the Subsequent
Cut-off Date (with respect to the Group 2 Subsequent Mortgage Loans) and all
collections in respect of interest and principal due after the Subsequent
Cut-off Date and (iii) all items with respect to such Group 2 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 Group 2 Subsequent Mortgage Loans prior to the related
Subsequent Cut-off Date. The transfer to the Indenture Trustee for deposit in
the Trust Estate by the Depositor of the Group 2 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 Group 2 Subsequent Mortgage Loans
by the Depositor to the Trust Estate. The related Mortgage File for each Group 2
Subsequent Mortgage Loan shall
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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 Group 2 Pre-Funding Account shall be one-hundred percent (100%) of the
aggregate Stated Principal Balance of the Group 2 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 Trust Estate the applicable Group 2 Subsequent Mortgage Loans and the other
property and rights related thereto as described in paragraph (a) above, and the
Indenture Trustee shall release such applicable funds from the Group 2
Pre-Funding Account, only upon the satisfaction of each of the following
conditions on or prior to the related Group 2 Subsequent Transfer Date:
(i) the Depositor shall have provided the Indenture Trustee, the
Bond Insurer 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 Group 2 Subsequent Mortgage Loans;
(ii) the Depositor shall have delivered to the Indenture Trustee a
duly executed Group 2 Subsequent Transfer Instrument (which the Indenture
Trustee is hereby authorized to execute), which shall include a Mortgage
Loan Schedule listing the Group 2 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 Group 2
Subsequent Transfer Date;
(iii) as of each Group 2 Subsequent Transfer Date, as evidenced by
delivery of the related Group 2 Subsequent Transfer Instrument,
substantially in the form of Exhibit G, 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 to the Bondholders;
(v) the Funding Period shall not have terminated;
(vi) the Depositor shall not have selected the applicable Group 2
Subsequent Mortgage Loans in a manner that it believed to be adverse to
the interests of the Bondholders or the Bond Insurer;
(vii) the Depositor shall have delivered to the Indenture Trustee
the related Group 2 Subsequent Transfer Instrument confirming the
satisfaction of the conditions precedent specified in this Section 2.05
and, pursuant to such Group 2 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
applicable Group 2 Subsequent Mortgage Loan Purchase Agreement, to the
extent of the related Group 2 Subsequent Mortgage Loans; and
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(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 applicable Group 2 Subsequent
Mortgage Loans substantially in the form of the Opinion of Counsel
delivered to the Indenture Trustee on the Closing Date regarding the
validity of the conveyance and the true sale of such Group 2 Subsequent
Mortgage Loans.
(c) The obligation of the Trust Estate to purchase a Group 2 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 Group
2 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 related Subsequent Cut off Date; (ii)
the original term to stated maturity of such Subsequent Mortgage Loan will not
be less than 180 months and will not exceed 360 months; (iii) each Subsequent
Mortgage Loan must be a fixed rate Mortgage Loan with a first lien on the
related mortgaged property; (iv) no Subsequent Mortgage Loan will have a first
payment date occurring after October 1, 2004; (v) the latest maturity date of
any Subsequent Mortgage Loan will be no later than September 1, 2034; (vi) no
Subsequent Mortgage Loan will be a buydown loan; (vii) such Subsequent Mortgage
Loan will have a credit score of not less than 500; (viii) such Subsequent
Mortgage Loan will have a Mortgage Rate ranging from approximately 4.375% per
annum to approximately 11.875% per annum; (ix) none of the Group 2 Subsequent
Mortgage Loans will be a New York State "high cost" loan; and (x) such 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 Group 2 Subsequent Mortgage
Loan by the Trust, the applicable Group 2 Subsequent Mortgage Loans will as of
the related Subsequent Cut-off Date: (i) have a weighted average Mortgage Rate
ranging from 6.300% per annum to 7.000% per annum; (ii) consist of Mortgage
Loans with prepayment charges representing no less than approximately 35% of the
Pool Balance; (iii) have a weighted average credit score ranging from 698 to
700; (iv) have no more than 50% of such Mortgage Loans concentrated in the state
of California; (v) have no less than 65% of the mortgaged properties be owner
occupied; (vi) have no less than 68% of the mortgaged properties be single
family detached and de minimis planned unit developments; (vii) have no more
than 46% of the Mortgage Loans be cash-out refinance; (viii)have no more than
0.10% of the Mortgage Loans will be balloon loans; (ixi) all of the Subsequent
Mortgage Loans with a loan to value ratio greater than 80% will be covered by a
Primary Insurance Policy or the Radian Lender-Paid PMI Policy; and (x) together
with the Group 2 Loans already included in the Trust, have no more than 2.50% of
such Mortgage Loans (by aggregate Stated Principal Balance as of the applicable
Subsequent Cut-off Date) be secured by mortgaged properties located in any one
zip code.
(e) Notwithstanding the foregoing, any Group 2 Subsequent Mortgage Loan
may be rejected by any Rating Agency if the inclusion of any such Group 2
Subsequent Mortgage Loan would adversely affect the ratings of the Bonds without
taking the Bond Insurance Policy into account. In addition, minor variances from
the characteristics stated above will be permitted with the consent of the
Rating Agencies so long as there are compensating factors, and the consent of
the Rating Agencies to any group of Group 2 Subsequent Mortgage Loans shall mean
that the representations and warranties set forth in clauses (c) and (d) above
are accurate; provided, however,
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that the information furnished to the Rating Agencies in respect of such Group 2
Subsequent Mortgage Loans is true and correct in all material respects. At least
one (1) Business Day prior to the applicable Group 2 Subsequent Transfer Date,
each Rating Agency shall notify the Indenture Trustee as to which Group 2
Subsequent Mortgage Loans, if any, shall not be included in the transfer on such
Group 2 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 Group 2 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 may be 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 Sixth and Marquette, Minneapolis,
Minnesota 55479-0113, Attention: Corporate Trust Services IMH Assets Corp.,
Series 2004-6, 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 and the Bond Insurer 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 (other than amounts paid under the Bond
Insurance Policy) 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 statutory 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
15
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 below, to the
extent provided therein, the Available Funds for such Payment Date and any Class
2-A Insured Amount for such Payment Date; provided, however, that any amounts
representing payments from the Bond Insurer shall only be used to pay interest
and principal to the Class 2-A Bondholders pursuant to clauses (f)(i) and (g)
below.
(b) On each Payment Date, the Group 1 Available Funds shall be distributed
in the following order of priority, in each case to the extent of the Group 1
Available Funds remaining for such Payment Date:
(i) concurrently, to the Holders of the Class 1-A-1, Class
1-A-2 and Class 1-A-3 Bonds, the related Accrued Bond Interest for such
Class for such Payment Date;
(ii) to the Holders of the Class M-1-1 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(iii) to the Holders of the Class M-2-1 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(iv) to the Holders of the Class M-3-1 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(v) to the Holders of the Class M-4-1 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(vi) to the Holders of the Class M-5-1 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date; and
(vii) to the Holders of the Class M-6-1 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date.
(c) On each Payment Date, the Holders of the Group 1 Bonds shall be
entitled to receive payments in respect of principal equal the related Principal
Distribution Amount for that Payment Date, allocated on a pro rata basis, based
on the Bond Principal Balances thereof, in reduction of the Bond Principal
Balances thereof, until the Bond Principal Balances thereof have been reduced to
zero.
(d) On each Payment Date, any Net Monthly Excess Cashflow in respect of
the Group 1 Loans shall be paid as follows:
16
(i) to the Holders of the Group 1 Bonds, pro rata, an amount
equal to any related Undercollateralized Amount, payable to such Holders
of the Group 1 Bonds as part of the related Principal Distribution Amount
as described under Section 3.05(c) above;
(ii) to the Holders of the Group 2 Bonds, pro rata, an amount
equal to any related Undercollateralized Amount, payable to such Holders
of the Group 2 Bonds as part of the related Principal Distribution Amount
as described under Section 3.05(g) below;
(iii) if Loan Group 1 is an Undercollateralized Loan Group, to
the Holders of the Group 1 Bonds, pro rata, an amount in respect of
principal equal to any remaining outstanding Subordinated Transfer
Realized Loss Amount, payable to such Holders of the Group 1 Bonds as part
of the related Principal Distribution Amount as described under Section
3.05(c) above, until either (a) such amount has been reduced to zero or
(b) the Overcollateralized Amount for Loan Group 2 is equal to the
Overcollateralization Target Amount for Loan Group 2;
(iv) to the Holders of the Group 1 Bonds, pro rata, an amount
equal to any Realized Losses on the Group 1 Loans during the related Due
Period, payable to such Holders of the Group 1 Bonds as part of the
related Principal Distribution Amount as described under Section 3.05(c)
above, but not greater than the amount required to increase the
Overcollateralized Amount for Loan Group 1 to the Overcollateralization
Target Amount for Loan Group 1;
(v) to the Holders of the Group 2 Bonds, pro rata, an amount
equal to any Realized Losses on the Group 2 Loans during the related Due
Period, to the extent unreimbursed by Net Monthly Excess Cashflow for the
Group 2 Loans on that Payment Date, payable to such Holders of the Group 2
Bonds as part of the related Principal Distribution Amount as described
under Section 3.05(g) below, but not greater than the amount required to
increase the Overcollateralized Amount for Loan Group 2 to the
Overcollateralization Target Amount for Loan Group 2;
(vi) to the Bond Insurer, the aggregate of all payments, if
any, made by the Bond Insurer under the Bond Insurance Policy with respect
to the Class 2-A Bonds, including interest thereon, to the extent not
previously paid or reimbursed
(vii) to the Holders of the Class 1-A-1, Class 1-A-2 and Class
1-A-3 Bonds and the Underlying Class M-1-1, Class M-2-1, Class M-3-1,
Class M-4-1, Class M-5-1 and Class M-6-1 Bonds, pro rata, an amount equal
to any related Overcollateralization Increase Amount, payable to such
Holders as part of the related Principal Distribution Amount as described
under Section 3.05(c) above;
(viii) to the Holders of the Group 2 Bonds, pro rata, an
amount equal to any related Overcollateralization Increase Amount
resulting from any previously unreimbursed Realized Losses on the Group 2
Loans, to the extent that such Realized Losses have not been reimbursed by
related and non-related Net Monthly Excess Cashflow on prior Payment
Dates, payable to such Holders of the Group 2 Bonds as part of the related
Principal Distribution Amount as described under Section 3.05(g) below;
17
(ix) first, concurrently to the Holders of the Class 1-A-1,
Class 1-A-2 and Class 1-A-3 Bonds, and second, to the Holders of the
Underlying Class M-1-1, Class M-1-2, Class M-2-1, Class M-2-2, Class
M-3-1, Class M-3-2, Class M-4-1, Class M-4-2, Class M-5- 1, Class M-5-2,
Class M-6-1 and Class M-6-2 Bonds, in that order, in an amount equal to
the Allocated Realized Loss Amount for such Classes of the Underlying
Class M Bonds, in each case to the extent not covered by non-related Net
Monthly Excess Cashflow for a non-related Underlying Class M Bond;
provided, however, that any Allocated Realized Loss Amount allocable to
the Class 1-A-3 Bonds will be instead applied to the Class 1-A-2 Bonds to
reduce unpaid Allocated Realized Loss Amounts related to the Class 1-A-2
Bonds (if any) until reduced to zero and then to the class 1-A-3 Bonds to
reduce unpaid Allocated Realized Loss Amounts related to the Class 1-A-3
Bonds (if any) until reduced to zero;
(x) first, concurrently to the Holders of the Class 1-A-1,
Class 1-A-2 and Class 1-A-3 Bonds, and then to the Underlying Class M-1-1,
Class M-2-1, Class M-3-1, Class M-4-1, Class M-5-1 and Class M-6-1 Bonds,
in that order, any Unpaid Interest Shortfall for such Bonds on such
Payment Date, to the extent not previously reimbursed
(xi) first, concurrently to the Holders of the Class 1-A-1,
Class 1-A-2 and Class 1-A-3 Bonds, and then to the Class M-1-1, Class
M-2-1, Class M-3-1, Class M-4-1, Class M-5-1 and Class M-6-1 Bonds, in
that order, any related Basis Risk Shortfall Carry-Forward Amount for such
Bonds on such Payment Date, to the extent not covered by the Derivative
Contracts;
(xii) to the Indenture Trustee for amounts owed the Indenture
Trustee hereunder (other than the Indenture Trustee Fee) remaining unpaid;
and
(xiii) any remaining amounts will be distributed to the
Certificate Paying Agent, as designee of the Issuer, for the benefit of
the Holders of the Owner Trust Certificates.
(e) With respect to the Derivative Contracts and 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) concurrently to the Holders of the Class 1-A-1, Class
1-A-2 and Class 1-A-3 Bonds, any related Basis Risk Shortfall
Carry-Forward Amount for such Payment Date;
(ii) to the Underlying Class M-1-1 Bonds and Class M-1-2
Bonds, pro rata, any related Basis Risk Shortfall Carry-Forward Amount for
such Payment Date;
(iii) to the Underlying Class M-2-1 Bonds and Class M-2-2
Bonds, pro rata, any related Basis Risk Shortfall Carry-Forward Amount for
such Payment Date;
(iv) to the Underlying Class M-3-1 Bonds and Class M-3-2
Bonds, pro rata, any related Basis Risk Shortfall Carry-Forward Amount for
such Payment Date;
(v) to the Underlying Class M-4-1 Bonds and Class M-4-2 Bonds,
pro rata, any related Basis Risk Shortfall Carry-Forward Amount for such
Payment Date;
18
(vi) to the Underlying Class M-5-1 Bonds and Class M-5-2
Bonds, pro rata, any related Basis Risk Shortfall Carry-Forward Amount for
such Payment Date;
(vii) to the Underlying Class M-6-1 Bonds and Class M-6-2
Bonds, pro rata, any related Basis Risk Shortfall Carry-Forward Amount for
such Payment Date;
(viii) on or after the Payment Date in July 2005, any
remaining amounts, up to a cumulative amount equal to $180,000,000, shall
be included in the Net Monthly Excess Cashflow for the Group 1 Loans and
shall be used as described in Section 3.05(d) above; and
(ix) any remaining amounts will be distributed to the
Certificate Paying Agent, as designee of the Issuer, for the benefit of
the Holders of the Owner Trust Certificates.
(f) On each Payment Date, the Group 2 Available Funds and any Class 2-A
Insured Amount shall be distributed in the following order of priority, in each
case to the extent of the Group 2 Available Funds and any Class 2-A Insured
Amount remaining for such Payment Date:
(i) to the Holders of the Class 2-A Bonds, the related Accrued
Bond Interest for such Class for such Payment Date;
(ii) to the Holders of the Class M-1-2 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(iii) to the Holders of the Class M-2-2 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(iv) to the Holders of the Class M-3-2 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(v) to the Holders of the Class M-4-2 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(vi) to the Holders of the Class M-5-2 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(vii) to the Holders of the Class M-6-2 Bonds, the related
Accrued Bond Interest for such Class for such Payment Date.
(g) On each Payment Date, the Holders of the Group 2 Bonds shall be
entitled to receive payments in respect of principal equal the related Principal
Distribution Amount for that Payment Date, allocated on a pro rata basis, in
reduction of the Bond Principal Balance thereof, until the Bond Principal
Balance thereof have been reduced to zero.
(h) On each Payment Date, any Net Monthly Excess Cashflow in respect of
the Group 2 Loans shall be paid as follows:
19
(i) to the Bond Insurer, the aggregate of all payments, if
any, made by the Bond Insurer under the Bond Insurance Policy with respect
to the Class 2-A Bonds, including interest thereon, to the extent not
previously paid or reimbursed;
(ii) to the Holders of the Group 2 Bonds, pro rata, an amount
equal to any related Undercollateralized Amount, payable to such Holders
of the Group 2 Bonds as part of the related Principal Distribution Amount
as described under Section 3.05(g) above;
(iii) to the Holders of the Group 1 Bonds, pro rata, an amount
equal to any related Undercollateralized Amount, payable to such Holders
of the Group 1 Bonds as part of the related Principal Distribution Amount
as described under Section 3.05(c) above;
(iv) if Loan Group 2 is an Undercollateralized Loan Group, to
the Holders of the Group 2 Bonds, pro rata, an amount in respect of
principal equal to any remaining outstanding Subordinated Transfer
Realized Loss Amount, payable to such Holders of the Group 2 Bonds as part
of the related Principal Distribution Amount as described under Section
3.05(g) above, until either (a) such amount has been reduced to zero or
(b) the Overcollateralized Amount for Loan Group 1 is equal to the
Overcollateralization Target Amount for Loan Group 1;
(v) to the Holders of the Group 2 Bonds, pro rata, an amount
equal to any Realized Losses on the Group 2 Loans during the related Due
Period, payable to such Holders of the Group 2 Bonds as part of the
related Principal Distribution Amount as described under Section 3.05(g)
above, but not greater than the amount required to increase the
Overcollateralized Amount for Loan Group 2 to the Overcollateralization
Target Amount for Loan Group;
(vi) to the Holders of the Group 1 Bonds, pro rata, an amount
equal to any Realized Losses on the Group 1 Loans during the related Due
Period, to the extent unreimbursed by Net Monthly Excess Cashflow for the
Group 1 Loans on that Payment Date, payable to such Holders of the Group 1
Bonds as part of the related Principal Distribution Amount as described
under Section 3.05(c) above, but not greater than the amount required to
increase the Overcollateralized Amount for Loan Group 1 to the
Overcollateralization Target Amount for Loan Group 1;
(vii) to the Holders of the Class 2-A Bonds and the Underlying
Class M-1- 2, Class M-2-2, Class M-3-2, Class M-4-2, Class M-5-2 and Class
M-6-2 Bonds, pro rata, an amount equal to any related
Overcollateralization Increase Amount, payable to such Holders as part of
the related Principal Distribution Amount as described under Section
3.05(g) above;
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(viii) to the Holders of the Group 1 Bonds, pro rata, an
amount equal to any related Overcollateralization Increase Amount
resulting from any previously unreimbursed Realized Losses on the Group 1
Loans, to the extent that such Realized Losses have not been reimbursed by
related and non-related Net Monthly Excess Cashflow on prior Payment
Dates, payable to such Holders of the Group 1 Bonds as part of the related
Principal Distribution Amount as described under Section 3.05(c) above;
(ix) to the Holders of the Underlying Class M-1-2, Class
M-1-1, Class M- 2-2, Class M-2-1, Class M-3-2, Class M-3-1, Class M-4-2,
Class M-4-1, Class M-5-2, Class M-5-1, Class M-6-2 and Class M-6-1 Bonds,
in that order, in an amount equal to the Allocated Realized Loss Amount
for such classes of the Underlying Class M Bonds, in each case to the
extent not covered by non-related Net Monthly Excess Cashflow for a
non-related Underlying Class M Bond;
(x) to the Holders of the Class 2-A Bonds and then to the
Underlying Class M-1-2, Class M-2-2, Class M-3-2, Class M-4-2, Class M-5-2
and Class M-6-2 Bonds, in that order, any Unpaid Interest Shortfall for
such Bonds on such Payment Date, to the extent not previously reimbursed;
(xi) to the Holders of the Class 2-A Bonds and Underlying
Class M-1-2, Class M-2-2, Class M-3-2, Class M-4-2, Class M-5-2 and Class
M-6-2 Bonds, in that order, any related Class 2-A Net WAC Cap Shortfall
Carry-Forward Amount or Basis Risk Shortfall Carry-Forward Amount, as
applicable, for such Bonds on such Payment Date, to the extent not covered
by the Derivative Contracts, as applicable;
(xii) to the Indenture Trustee for amounts owed the Indenture
Trustee hereunder (other than the Indenture Trustee Fee) remaining unpaid;
and
(xiii) any remaining amounts will be distributed to the
Certificate Paying Agent, as designee of the Issuer, for the benefit of
the Holders of the Owner Trust Certificates.
(i) [reserved].
(j) 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 Owner Trust
Certificates.
(k) 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.
(l) 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
Certificateholders.
(m) 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
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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.
(n) 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
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.
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(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.
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 2005, 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
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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 may exercise
the rights of the Issuer to direct the actions of the Master Servicer pursuant
to the Servicing Agreement.
(d) The Issuer may retain an administrator and may enter into contracts
with other Persons for the performance of the Issuer's obligations hereunder,
and performance of such obligations by such Persons shall be deemed to be
performance of such obligations by the Issuer.
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;
(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 Purchase 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, by March 1 of each year commencing with the calendar year
2005, 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 the
previous calendar year and of its performance under this Indenture has
been made under such Authorized Officer's supervision; and
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(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 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
Purchase Agreement concerning the Seller and the Initial Mortgage Loans and (ii)
any Group 1 or Group 2 Subsequent Mortgage Loan Purchase Agreements concerning
the Seller and the Group 1 Subsequent Mortgage Loans and Group 2 Subsequent
Mortgage Loans 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 Purchase Agreement or in the
applicable Group 1 and Group 2 Subsequent Mortgage Loan Purchase Agreements, 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 3.12 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 3.13 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 bailee 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 3.14 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 3.14
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.
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Section 3.15 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 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 the
payment of the Bond Insurance Premium and all other amounts payable to the
Bond Insurer, the Indenture Trustee and the Derivative Contract
Counterparty, the payment to the Certificate Paying Agent of all amounts
due to the Certificateholders, 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
26
payment of the Bond Insurance Premium and all other amounts payable to the
Bond Insurer and Derivative Contract Counterparty 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, the Indenture Trustee and
the Bond Insurer against and from any loss, liability or expense arising
under or related to this Indenture and the Bonds and (E) expressly agree
by 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 3.16 Successor or Transferee. (a) Upon any consolidation or merger
of the Issuer in accordance with Section 3.15(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 3.15(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.
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Section 3.17 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 3.18 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.
Section 3.19 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 3.20 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 3.21 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 3.22 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 3.23 Notice of Events of Default. The Issuer shall give the
Indenture Trustee, the Bond Insurer and the Rating Agencies prompt written
notice of each Event of Default hereunder and under the Trust Agreement.
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Section 3.24 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 3.25 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, xxx.xxxxxxx.xxx (or deliver at the
recipient's option), to the Bond Insurer and to each Bondholder and
Certificateholder the most recent statement prepared by the Master Servicer
pursuant to Section 4.01 of the Servicing Agreement and in the manner provided
for in Section 7.05 hereof.
Section 3.26 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" or "instruments,"
as applicable, 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.
(ii) The Collateral constitutes "general intangibles" within the
meaning of the applicable UCC.
29
(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) 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.
(c) With respect to any Collateral in which a security interest may be
perfected by filing, 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 such 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 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 all Collateral granted to the Indenture Trustee hereunder in which a
security interest may be perfected by filing. Any financing statement that is
filed in connection with this Section 3.26 shall contain a statement that a
purchase or security interest in any collateral described therein will violate
the rights of the secured party named in such financing statement.
(e) The foregoing representations may not be waived and shall survive the
issuance of the Bonds.
Section 3.27 [Reserved].
Section 3.28 [Reserved].
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 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 [Reserved].
Section 3.31 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
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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 Group 1 Loans is less than the aggregate Bond Principal Balances of the
Group 1 Bonds due to Realized Losses on the Group 1 Loans, the Bond Principal
Balances of the Class M-6-1, Class M-6-2, Class M-5-1, Class M-5-2, Class M-4-1,
Class M-4-2, Class M-3-1, Class M-3-2, Class M-2-1, Class M-2-2, Class M-1-1and
Class M-1-2 Bonds, in that order, and then the Class 1-A-1, Class 1-A-2 and
Class 1-A-3 Bonds, on a pro rata basis, shall be reduced, until the Bond
Principal Balance thereof has been reduced to zero; provided, however, that any
Allocated Realized Loss Amount allocable to the Class 1-A-3 Bonds will be
instead applied to the Class 1-A-2 Bonds to reduce unpaid Allocated Realized
Loss Amounts related to the Class 1-A-2 Bonds (if any) until reduced to zero. On
each Payment Date following the application of all amounts distributable on such
date, to the extent the aggregate Stated Principal Balance of the Group 2 Loans
is less than the aggregate Bond Principal Balances of the Group 2 Bonds due to
Realized Losses on the Group 2 Loans, the Bond Principal Balances of the of the
Class M-6-2, Class M-6-1, Class M-5-2, Class M-5-1, Class M-4-2, Class M-4-1,
Class M-3-2, Class M-3- 1, Class M-2-2, Class M-2-1, Class M-1-2 and Class
M-1-1, in that order, shall be reduced, until the Bond Principal Balance thereof
has been reduced to zero. All Realized Losses allocated to a Class of Bonds will
be allocated in proportion to the Percentage Interests evidenced thereby.
Section 3.32 The Group 1 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 "Group 1
Pre-Funding Account, Xxxxx Fargo Bank, N.A., as indenture trustee for the
registered holders of IMH Assets Corp., Collateralized Asset-Backed Bonds,
Series 2004-6" (the "Group 1 Pre-Funding Account"). The Indenture Trustee shall,
promptly upon receipt, deposit in the Group 1 Pre-Funding Account and retain
therein the Group 1 Original Pre-Funded Amount remitted on the Closing Date to
the Indenture Trustee by the Depositor. Funds deposited in the Group 1
Pre-Funding Account shall be held in trust by the Indenture Trustee for the
Bondholders for the uses and purposes set forth herein.
(b) The Indenture Trustee will invest funds deposited in the Group 1
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 Group 1 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 Group 1 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 Group 1 Subsequent Transfer
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Date, if a Person other than the Indenture Trustee or an Affiliate of the
Indenture Trustee manages or advises such investment, or on each Group 1
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 Group 1 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 Group 1 Pre-Funding Account shall be
withdrawn by the Indenture Trustee as follows:
(i) On any Group 1 Subsequent Transfer Date, the Indenture Trustee
shall withdraw from the Group 1 Pre-Funding Account an amount equal to 100% of
the aggregate Stated Principal Balances of the related Group 1 Subsequent
Mortgage Loans transferred and assigned to the Indenture Trustee for deposit in
the Mortgage Pool on such Group 1 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 Group 1 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 Group 1
Pre-Funding Account for distribution in accordance with the terms hereof;
(iii) To withdraw any amount not required to be deposited in the
Group 1 Pre-Funding Account or deposited therein in error; and
(iv) To clear and terminate the Group 1 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.
Section 3.33 The Group 2 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 "Group 2
Pre-Funding Account, Xxxxx Fargo Bank, N.A., as indenture trustee for the
registered holders of IMH Assets Corp., Collateralized Asset-Backed Bonds,
Series 2004-6" (the "Group 2 Pre-Funding Account"). The Indenture Trustee shall,
promptly upon receipt, deposit in the Group 2 Pre-Funding Account and retain
therein the Group 2 Original Pre-Funded Amount remitted on the Closing Date to
the Indenture Trustee by the Depositor. Funds deposited in the Group 2
Pre-Funding Account shall be held in trust by the Indenture Trustee for the
Bondholders for the uses and purposes set forth herein.
(b) The Indenture Trustee will invest funds deposited in the Group 2
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
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the Indenture Trustee's receipt thereof. For federal income tax purposes, the
Master Servicer shall be the owner of the Group 2 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 Group 2
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 Group 2
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 Group 2 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 Group 2 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 Group 2 Pre-Funding Account shall be
withdrawn by the Indenture Trustee as follows:
(i) On any Group 2 Subsequent Transfer Date, the Indenture Trustee
shall withdraw from the Group 2 Pre-Funding Account an amount equal to 100% of
the aggregate Stated Principal Balances of the related Group 2 Subsequent
Mortgage Loans transferred and assigned to the Indenture Trustee for deposit in
the Mortgage Pool on such Group 2 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 Group 2 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 Group 2
Pre-Funding Account for distribution in accordance with the terms hereof;
(iii) To withdraw any amount not required to be deposited in the
Group 2 Pre-Funding Account or deposited therein in error; and
(iv) To clear and terminate the Group 2 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.
Section 3.34 Grant of the Group 1 Subsequent Mortgage Loans. In
consideration of the delivery on each Group 1 Subsequent Transfer Date to or
upon the order of the Issuer of all or a portion of the amount on deposit in the
Group 1 Pre-Funding Account, the Depositor shall, to the extent of the
availability thereof, on such Group 1 Subsequent Transfer Date during the
Funding Period, grant to the Indenture Trustee all of its rights, title and
interest in the Group 1 Subsequent Mortgage Loans and simultaneously with the
Grant of the Group 1 Subsequent Mortgage Loans, the Depositor will cause the
related Mortgage File to be delivered to the Indenture Trustee.
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Section 3.35 Grant of the Group 2 Subsequent Mortgage Loans. In
consideration of the delivery on each Group 2 Subsequent Transfer Date to or
upon the order of the Issuer of all or a portion of the amount on deposit in the
Group 2 Pre-Funding Account, the Depositor shall, to the extent of the
availability thereof, on such Group 2 Subsequent Transfer Date during the
Funding Period, grant to the Indenture Trustee all of its rights, title and
interest in the Group 2 Subsequent Mortgage Loans and simultaneously with the
Grant of the Group 2 Subsequent Mortgage Loans, the Depositor will cause the
related Mortgage File to be delivered to the Indenture Trustee.
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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.
36
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;
37
(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 (and the Bond
Insurer, as subrogee of the Class 2-A 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), (vi) the
right of the Derivative Contract Counterparty to receive the Net Derivative Fee
and (vii) 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
39
Trustee a verification report from a nationally recognized accounting firm
certifying that the amounts 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 Sixth and Marquette, Minneapolis, Minnesota 55479-0113, Attention: Corporate
Trust Services IMH Assets Corp., Series 2004-6, without charge to the Holder.
Upon
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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 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 Class 1-A-1,
Class 1-A-2, Class 1-A-3 or Class 2-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 such Bond with Plan Assets or (2) (A) the
acquisition, holding and transfer of such Bond will not give rise to a nonexempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
and (B) the Bonds are rated investment grade or better and such purchaser agrees
to treat them as indebtedness for federal income tax purposes. Alternatively,
regardless of the rating of such Bonds, such person may provide the Indenture
Trustee and the Owner Trustee with an opinion of counsel, which opinion of
counsel will not be at the expense of the Issuer, the Seller, the Depositor, any
Underwriter, the Owner Trustee, the Indenture Trustee, the Master Servicer or
any successor servicer, which opines that the acquisition, holding and transfer
of such Bond or interest therein is permissible under applicable law, will not
constitute or result in a non-exempt prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Issuer, the Seller, the
Depositor, any Underwriter, the Owner Trustee, the Indenture Trustee, the Master
Servicer or any successor servicer to any obligation in addition to those
undertaken in the Indenture.
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ARTICLE V
Default and Remedies
Section 5.01 Events of Default. The Issuer shall deliver to the Indenture
Trustee and the Bond Insurer, 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 Class A Bonds and Class M 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 the 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;
(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
(C) all amounts owed to the Derivative Contract Counterparty;
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.
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No such rescission shall affect any subsequent default or impair any right
consequent thereto.
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 directed in writing by Holders of a majority of the
aggregate Bond Principal Balances of the Bonds, to 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, as directed in writing by Holders
of a majority of the aggregate Bond Principal Balances of the Bonds,
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:
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(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 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 and all amounts due to the Bond Insurer.
(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.
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(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.
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, and shall, at the written direction of
the Holders of a majority of the aggregate Bond Principal Balances of the Bonds,
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 of the Bonds, (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 such Bonds for principal
and interest and to reimburse the Bond Insurer for any amounts drawn under the
Bond Insurance Policy and any other amounts due to the Bond Insurer under the
Bond Insurance Policy 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 applicable 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
of the Bonds. 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;
provided, however, that any amounts
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representing payments from the Bond Insurer shall only be used to pay interest
and principal to the Class 2-A Bondholders pursuant to clauses FOURTH and FIFTH
below:
FIRST: to the Indenture Trustee for amounts due under Section 6.07
hereof;
SECOND: to the Derivative Contract Counterparty, any amounts owed
under the Derivative Contracts, other than any Additional Derivative
Counterparty Payment;
THIRD: to the Bond Insurer, provided no Bond Insurer Default exists,
with respect to any Premium Amount then due to the extent unpaid pursuant
to the Servicing Agreement;
FOURTH: to the Bondholders for amounts due and unpaid on the Bonds
(including Unpaid Interest Shortfalls but not including any Basis Risk
Shortfall Carry-Forward Amounts) with respect to interest, first, to the
Class 1-A-1, Class 1-A-2, Class 1-A-3 and Class 2-A Bondholders,
concurrently, second, to the Class M-1-1 Bondholders and Class M- 1-2
Bondholders, concurrently, third to the Class M-2-1 Bondholders and Class
M-2-2 Bondholders, concurrently, fourth to the Class M-3-1 Bondholders and
Class M-3-2 Bondholders, concurrently, fifth to the Class M-4-1
Bondholders and Class M-4-2 Bondholders, concurrently, sixth to the Class
M-5-1 Bondholders and Class M-5-2 Bondholders, concurrently, and seventh
to the Class M-6-1 Bondholders and M-6-2 Bondholders, concurrently,
according to the amounts due and payable on the Bonds for interest;
FIFTH: 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 such
Bonds for principal, until the Bond Principal Balance of each such Class
is reduced to zero;
SIXTH: to the payment of all amounts due and owing to the Bond
Insurer under the Bond Insurance Policy (including any Premium Amount not
paid pursuant to clause THIRD above);
SEVENTH: to the Bondholders, first, to the Class 1-A-1, Class 1-A-2
and Class 1-A- 3 Bondholders, concurrently, second to the Class M-1-1
Bondholders and Class M-1-2 Bondholders, concurrently, third to the Class
M-2-1 Bondholders and Class M-2-2 Bondholders, concurrently, fourth to the
Class M-3-1 Bondholders and Class M-3-2 Bondholders, concurrently, fifth
to the Class M-4-1 Bondholders and Class M-4-2 Bondholders, concurrently,
sixth to the Class M-5-1 Bondholders and Class M-5-2 Bondholders,
concurrently, and seventh to the Class M-6-1 Bondholders and M-6-2
Bondholders, concurrently, the amount of any related Allocated Realized
Loss Amount not previously paid;
EIGHTH: 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 1-A-1, Class 1-A-2 and Class 1-A-3 Bondholders,
concurrently, second, to the Class M-1-1 Bondholders and Class M-1-2
Bondholders, concurrently, third to the Class M-2-1 Bondholders and Class
M-2-2 Bondholders, concurrently, fourth to the Class M-3-1 Bondholders and
Class M-3-2
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Bondholders, concurrently, fifth to the Class M-4-1 Bondholders and Class
M-4-2 Bondholders, concurrently, sixth to the Class M-5-1 Bondholders and
Class M-5-2 Bondholders, concurrently, and seventh to the Class M-6-1
Bondholders and M-6-2 Bondholders, concurrently, according to the amounts
due and payable on the Bonds with respect thereto, from amounts available
in the Trust Estate for the Bondholders; and
NINTH: 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, including payment to
the Bond Insurer, and the Indenture Trustee, unless directed otherwise by the
Bond Insurer, 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 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
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(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 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.
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Section 5.11 Control By Bondholders. The Holders of a majority of the
aggregate Bond Principal Balances of Bonds shall have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Indenture Trustee with respect to the Bonds or exercising any trust or power
conferred on the Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
(ii) any direction to the Indenture Trustee to sell or
liquidate the Trust Estate shall be by Holders of Bonds representing not
less than 100% of the Bond Principal Balances of the Bonds; and
(iii) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction of the Holders of Bonds representing a majority of the Bond
Principal Balances of the Bonds.
Notwithstanding the rights of Bondholders set forth in this Section 5.11 the
Indenture Trustee need not take any action that it determines might involve it
in liability.
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, (b) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Bond or (c) the waiver of which would materially and adversely affect the
interests of the Bond Insurer or modify its obligations under the Bond Insurance
Policy. 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
49
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 any such law, and covenants that it shall not
hinder, delay or impede the execution of any power herein granted 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 and under the Bond Insurance Policy 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 and the
Bond Insurer in respect of amounts drawn under the Bond Insurance Policy,
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), 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
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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 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 and amounts distributable
to the Bond Insurer as a result of such Sale in accordance with Section
5.04(b) hereof 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
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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 Purchase Agreement, any Group 1 or Group 2 Subsequent Mortgage
Loan Purchase Agreement and the Servicing Agreement, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under
or in connection with the Mortgage Loan Purchase Agreement, any Group 1 or Group
2 Subsequent Mortgage Loan Purchase 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 Purchase Agreement, any Group 1 or Group 2 Subsequent Mortgage Loan
Purchase 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 Purchase Agreement, any Group 1 or Group 2
Subsequent Mortgage Loan Purchase 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
Purchase Agreement, any Group 1 or Group 2 Subsequent Mortgage Loan Purchase
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 repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
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(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.
(g) The Indenture Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Indenture Trustee's
economic self-interest for (i) serving as investment adviser, administrator,
shareholder servicing agent, custodian or sub-custodian with respect to certain
of the Eligible Investments, (ii) using Affiliates to effect transactions in
certain Eligible Investments and (iii) effecting transactions in certain
Xxxxxxxx Investments. Such compensation shall not be considered an amount that
is reimbursable or payable to the Indenture Trustee (i) as part of the Indenture
Trustee Fee, (ii) pursuant to Sections 3.05(d), 3.05(h), 5.04(b), 6.07 or
8.02(c) hereunder or (iii) out of Available Funds.
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
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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.
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 and the Bond Insurer
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.
On each Payment Date, the Indenture Trustee shall pay itself from amounts on
deposit in the Payment Account for such Payment Date 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)(xii), Section 3.05(h)(xii) 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
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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.
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. 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.
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Section 6.09 Successor Indenture Trustee by Xxxxxx. 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
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
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(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(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;
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(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 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 TIA ss. 312(c).
Section 7.03 Reports of Issuer. (a) Subject to Section 4.06 of the
Servicing Agreement (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 January 30 beginning with March 31, 2005, 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 such 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 xxx.xxxxxxx.xxx or deliver at the recipient's option to each Bondholder
and each Certificateholder, the Derivative Contract Counterparty, the Depositor,
the Bond Insurer, 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 Group 1 Available Funds, Group 2 Available Funds and
Net Monthly Excess Cash Flow, with respect to the Group 1 Loans and Group
2 Loans, payable to each Class of Bondholders for such Payment Date, the
Basis Risk Shortfall Carry-Forward Amount on each Class of Bonds (other
than the Class 2-A 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
Class 1-A-1, Class 1-A-2, Class 1-A-3, Class M-1-1, Class M-2-1, Class
M-3-1, Class M-4-1, Class M-5-1, Class M-6-1, Class 2-A, Class M-1-2,
Class M-2-2, Class M-3-2, Class M-4-2, Class M-5-2 and Class M-6-2 Bonds
applied to reduce the Bond Principal Balance thereof, and (b) the
aggregate amount included therein representing Principal Prepayments;
(iv) the amount of such distribution to Holders of each Class
of Bonds allocable to interest;
(v) the amount of such distribution to the Certificates;
(vi) 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;
(vii) the number and the aggregate Stated Principal Balance of
the Mortgage Loans as of the end of the related Due Period, determined in
the aggregate and separately for Loan Group 1 and Loan Group 2;
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(viii) 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 Class 1-A-1, Class 1-A-2,
Class 1-A-3, Class M-1-1, Class M-2-1, Class M-3-1, Class M-4-1, Class
M-5-1, Class M-6- 1, Class 2-A, Class M-1-2, Class M-2-2, Class M-3-2,
Class M-4-2, Class M-5-2 and Class M-6-2 Bonds after giving effect to the
distribution of principal on such Payment Date;
(ix) 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, determined in the aggregate and separately for
Loan Group 1 and Loan Group 2;
(x) the Net Derivative Contract Payment Amount;
(xi) the Overcollateralization Increase Amount with respect to
each Loan Group, Overcollateralization Release Amount,
Overcollateralization Target Amount and Overcollateralized Amount, if any,
in each case as the end of the related Payment Date, in each case as
determined separately for each Loan Group;
(xii) the amount of any Advances and Compensating Interest
payments;
(xiii) the aggregate Realized Losses with respect to the
related Payment Date and cumulative Realized Losses since the Closing
Date;
(xiv) the number and aggregate Stated Principal Balance of
Mortgage Loans repurchased pursuant to the Mortgage Loan Purchase
Agreement for the related Payment Date and cumulatively since the Closing
Date determined in the aggregate and separately for Loan Group 1 and Loan
Group 2;
(xv) the book value of any REO Property;
(xvi) the amount of any Prepayment Interest Shortfalls or
Relief Act Shortfalls for such Payment Date;
(xvii) 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;
(xviii) any Insured Amount paid for the benefit of the Class
2-A Bonds;
(xix) the amount withdrawn from the Group 1 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 Group 1 Pre-
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Funding Account used to buy certain Group 1 Subsequent Mortgage Loans
prior to such Payment Date; and
(xx) the amount withdrawn from the Group 2 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 Group 2 Pre- Funding Account used to buy certain Group 2
Subsequent Mortgage Loans prior to such Payment Date.
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 (v) 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.
The Indenture Trustee will make the monthly statements provided for in
this section (and, at its option, any additional files containing the same
information in an alternative format) available each month to Bondholders, other
parties to this Agreement and any other interested parties via the Indenture
Trustee's website. The Trustee's website shall initially be located at
xxx.xxxxxxx.xxx. Assistance in using the website can be obtained by calling the
Trustee's customer service desk at (000) 000-0000. Parties that are unable to
use the website are entitled to have a paper copy ailed to them via first class
mail by calling the customer service desk and indicating such. With the consent
of the Depositor, the Indenture Trustee may have the right to change the way the
monthly statements are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Indenture Trustee
shall provide timely and adequate notification to all above parties regarding
any such changes.
The Indenture Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the monthly statement, and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
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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 and the Derivative
Contract Counterparty, the Payment Account as provided in Section 3.01 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 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 from
amounts on deposit in the Payment Account for such Payment Date and then shall
pay the Derivative Contract Counterparty the Net Derivative Contract Payment
Amount, excluding any Additional Derivative Contract Counterparty Payment, 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,
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. From the
Business Day prior to the Payment Date until disbursed, such funds shall be held
uninvested and any income, gain or other benefit with respect thereto shall be
for the benefit of the Indenture Trustee.
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
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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 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 Bond Insurer, 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, (ii) all sums due to the Indenture Trustee pursuant to this
Indenture have been paid and (iii) all sums due to the Bond Insurer 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 Majority
Certificateholder 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 as of the end
of the prior Due Period is less than or equal to 20% of the sum of the aggregate
Stated Principal Balance of the Mortgage Loans as of Cut-off Date and the
aggregate amount deposited into the Group 1 Pre-Funding Account and Group 2
Pre-Funding Account on the Closing Date and (ii) the Payment Date in July 2014.
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
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any related Unpaid Interest Shortfall and Basis Risk Shortfall Carry-Forward
Amount), plus an amount sufficient to pay in full all amounts owing to the Bond
Insurer and the Indenture Trustee under this Indenture and the Bond Insurance
Policy (which amounts shall be specified in writing upon request of the Issuer
by the Indenture Trustee and the Bond Insurer) and plus an amount equal to any
amounts owing to the Derivative Contract Counterparty under the Derivative
Contracts.
(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 Bond Insurer for all amounts owing under the
Bond Insurance Policy and to the Indenture Trustee for all amounts payable to it
under this Indenture, 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 may be 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;
(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";
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(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.
No supplemental indenture adverse to the interests of the Derivative
Contract Counterparty shall be entered into without the Derivative Contract
Counterparty's written consent.
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
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Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or 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
73
to the Issuer addressed to: Impac CMB Trust Series 2004-6, 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;
or
(iii) the Bond Insurer by the Issuer, the Indenture Trustee or
by any Bondholders shall be sufficient for every purpose hereunder if in
writing and mailed, first-class postage pre-paid, or personally delivered
or telecopied to: Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Consumer Asset-Backed Securities Group,
Telephone: (000) 000-0000, Telecopier: (000) 000-0000. The Bond Insurer
shall promptly transmit any notice received by it from the Issuer, the
Indenture Trustee or the Bondholders to the Issuer or Indenture Trustee,
as the case may be.
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, first-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.
74
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.
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.
75
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 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.
76
ARTICLE XI
Certain Matters Regarding the Bond Insurer
Section 11.01 Rights of the Bond Insurer to Exercise the Rights of the
Class 2-A Bonds. By accepting its Bond, each Class 2-A Bondholder agrees that
unless an Bond Insurer Default exists, the Bond Insurer shall have the right to
exercise all consent, voting, direction and other control rights of the Class
2-A Bondholders under this Indenture without any further consent of the Class
2-A Bondholders.
Section 11.02 Claims Upon the Bond Insurance Policy; Insurance Account.
(a) If, on the Business Day next succeeding the Determination Date, the Master
Servicer determines that (i) the funds that will be on deposit in the Payment
Account on the third Business Day prior to the related Payment Date, to the
extent payable to the Class 2-A Bondholders pursuant to Section 3.05, are
insufficient to pay the Accrued Bond Interest on the Class 2-A Bonds for such
Payment Date, net of any Prepayment Interest Shortfalls, Relief Act Shortfalls
or Basis Risk Shortfalls allocated to the Class 2-A Bonds, (ii) the principal
portion of any Realized Loss is allocated to the Class 2-A Bonds on such Payment
Date or (iii) the funds available in connection with an optional redemption of
the Bonds pursuant to Section 8.07 or on the Final Scheduled Payment Date will
be insufficient to reduce the Bond Principal Balance of the Class 2-A Bonds to
zero, the Master Servicer shall deliver to the Indenture Trustee not later than
1:00 p.m. New York City time on the Business Day next succeeding the
Determination Date a certificate signed by a Servicing Officer directing the
Indenture Trustee to draw on the Bond Insurance Policy and stating the amount to
be drawn and stating the Insured Amount for the Class 2-A Bonds, and the
Indenture Trustee shall give notice by telephone or telecopy of the aggregate
amount of such deficiency, confirmed in writing in the form set forth as Exhibit
A to the endorsement of the Bond Insurance Policy, to the Bond Insurer at or
before 12:00 noon, New York City time, on the Business Day prior to such Payment
Date. If, subsequent to such notice, and prior to payment by the Bond Insurer
pursuant to such notice, additional amounts are deposited in the Payment
Account, the Indenture Trustee shall reasonably promptly notify the Bond Insurer
and withdraw the notice or reduce the amount claimed, as appropriate.
(b) The Indenture Trustee shall establish a separate special purpose trust
account for the benefit of Holders of the Class 2-A Bonds and the Bond Insurer
referred to herein as the "Insurance Account" over which the Indenture Trustee
shall have exclusive control and sole right of withdrawal. The Indenture Trustee
shall deposit any amount paid to it under the Bond Insurance Policy in the
Insurance Account and distribute such amount only for purposes of payment to
Holders of Class 2-A Bonds of the Insured Amount for which a claim was made.
Such amount may not be applied to satisfy any costs, expenses or liabilities of
the Master Servicer, the Indenture Trustee or the Trust Estate. Amounts paid
under the Bond Insurance Policy shall be transferred to the Payment Account in
accordance with the next succeeding paragraph and disbursed by the Indenture
Trustee to Holders of Class 2-A Bonds in accordance with Section 3.05 or Section
8.04, as applicable. It shall not be necessary for such payments to be made by
checks or wire transfers separate from the checks or wire transfers used to pay
the Insured Amount with other funds available to make such payment. However, the
amount of any payment of principal of or interest on the Class 2-A Bonds to be
paid from funds transferred from the Insurance Account shall be noted as
provided in paragraph (c) below and in the statement to be furnished to Holders
of the Bonds and Certificates
77
pursuant to Section 3.25. Funds held in the Insurance Account shall not be
invested by the Master Servicer.
On any Payment Date with respect to which a claim has been made under the
Bond Insurance Policy, the amount of any funds received by the Indenture Trustee
as a result of any claim under the Bond Insurance Policy, to the extent required
to pay the Insured Amount on such Payment Date, shall be withdrawn by the
Indenture Trustee from the Insurance Account and deposited in the Payment
Account and applied by the Indenture Trustee, together with the other funds to
be distributed to the Class 2-A Bondholders pursuant to Section 3.05, directly
to the payment in full of the Insured Amount due on the Class 2-A Bonds. Any
funds remaining in the Insurance Account on the first Business Day following a
Payment Date shall be remitted by the Indenture Trustee to the Bond Insurer,
pursuant to the written instructions of the Bond Insurer, by the end of such
Business Day.
(c) The Indenture Trustee shall keep a complete and accurate record of the
amount of interest and principal paid into the Insurance Account in respect of
any Class 2-A Bond from moneys received by the Indenture Trustee under the Bond
Insurance Policy. The Bond Insurer shall have the right to inspect such records
at reasonable times during normal business hours upon two Business Day's prior
written notice to the Indenture Trustee.
Section 11.03 Effect of Payments by the Bond Insurer; Subrogation.
Anything herein to the contrary notwithstanding, for purposes of this Section
11.03, any payment with respect to principal of or interest on the Class 2-A
Bonds which is made with monies received pursuant to the terms of the Bond
Insurance Policy shall not be considered payment of the Class 2-A Bonds from the
Trust Estate. The Master Servicer and the Indenture Trustee acknowledge, and
each Holder by its acceptance of a Class 2-A Bond agrees, that without the need
for any further action on the part of the Bond Insurer, the Master Servicer, the
Indenture Trustee or the Certificate Registrar, to the extent the Bond Insurer
makes payments, directly or indirectly, on account of principal of or interest
on the Class 2-A Bonds to the Holders of such Bonds, the Bond Insurer will be
fully subrogated to, and each Class 2-A Bondholder and the Indenture Trustee
hereby delegate and assign to the Bond Insurer, to the fullest extent permitted
by law, the rights of such Holders to receive such principal and interest from
the Trust Estate; provided that the Bond Insurer shall be paid such amounts only
from the sources and in the manner explicitly provided for herein.
The Indenture Trustee and the Master Servicer shall cooperate in all
respects with any reasonable request by the Bond Insurer for action to preserve
or enforce the Bond Insurer's rights or interests under this Indenture without
limiting the rights or affecting the interests of the Holders as otherwise set
forth herein.
Section 11.04 Notices and Information to the Bond Insurer. All notices,
statements, reports, certificates or opinions required by this Indenture to be
sent or made available to any other party hereto or to the Bondholders or
Certificateholders shall also be sent or made available to the Bond Insurer.
78
Section 11.05 Trustee to Hold Bond Insurance Policy. The Indenture Trustee
will hold the Bond Insurance Policy in trust as agent for the Class 2-A
Bondholders for the purpose of making claims thereon and distributing the
proceeds thereof. Neither the Bond Insurance Policy, nor the amounts paid on the
Bond Insurance Policy will constitute part of the Trust Estate. Each Class 2-A
Bondholder, by accepting its Bond, appoints the Indenture Trustee as
attorney-in-fact for the purpose of making claims on the Bond Insurance Policy.
The Indenture Trustee shall surrender the Bond Insurance Policy to the Bond
Insurer for cancellation upon the expiration of the term of the Bond Insurance
Policy as provided in the Bond Insurance Policy following the retirement of the
Class 2-A Bonds.
79
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 2004-6, as
Issuer
Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
XXXXX FARGO BANK, N.A., as Indenture
Trustee
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 29th day of June, 2004, before me personally appeared
_____________ to me known, who being by me duly sworn, did depose and say, that
she/he is a ___________ 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 29th day of June, 2004, before me personally appeared
_______________ to me known, who being by me duly sworn, did depose and say,
that she/he is a ___________ of the Owner Trustee, one of the entities described
in and which executed the above instrument; and that she signed her name thereto
by like order.
Notary Public
---------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
EXHIBIT A-1
FORM OF CLASS [_-A-_] 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.
THIS BOND IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF
PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST AND THE BOND INSURANCE POLICY 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 2004-6
COLLATERALIZED ASSET-BACKED BONDS
CLASS [_-A-_]
AGGREGATE [BOND PRINCIPAL BOND INTEREST
BALANCE][NOTIONAL AMOUNT]: RATE: [Adjustable Rate][___%]
$[ ]
INITIAL [BOND PRINCIPAL BOND NO. 1
BALANCE][NOTIONAL AMOUNT] OF THIS
BOND: $[ ]
PERCENTAGE INTEREST: 100% CUSIP NO. [ ]
Impac CMB Trust Series 2004-6 (the "Issuer"), a Delaware statutory trust,
for value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ($_________________) 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 July 2003 and
ending on or before the Payment Date occurring in _____________ (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 2004-6 (the "Bonds"), issued under an Indenture dated
as of June 29, 2004 (the "Indenture"), between the Issuer and Xxxxx Fargo Bank,
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.
[Ambac Assurance Corporation (the "Bond Insurer"), in consideration of the
payment of the premium and subject to the terms of the certificate guaranty
insurance policy (the "Bond Insurance Policy") issued thereby, has
unconditionally and irrevocably guaranteed the payment of the Insured Amount
with respect to the Class 2-A Bonds with respect to each Payment Date. Such Bond
Insurance Policy will not cover any Prepayment Interest Shortfalls, Relief Act
Shortfalls or Basis Risk Shortfall Carry- Forward Amount.]
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
A-1-2
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-_] Bonds 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
Majority Certificateholder 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 as of the end of the prior Due Period is less than or equal to 20% of the
aggregate Stated Principal Balance of the Mortgage Loans as of Cut-off Date and
the aggregate amount deposited into the Group 1 Pre-Funding Account and Group 2
Pre-Funding Account on the Closing Date and (ii) the Payment Date in July 2014.
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 [scheduled] 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
A-1-3
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] 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 Plan
Assets or (2) (A) the acquisition, holding and transfer of a Bond will not give
rise to a nonexempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code and (B) the Bonds are rated investment grade or better and such
person agrees to treat them as indebtedness for federal income tax purposes.
Alternatively, regardless of the rating of such Bonds, such person may provide
the Indenture Trustee and the Owner Trustee with an opinion of counsel, which
opinion of counsel will not be at the expense of the Issuer, the Seller, any
Underwriter, the Owner Trustee, the Indenture Trustee, the Depositor, the Master
Servicer or any successor servicer which opines that the acquisition, holding
and transfer of such Bond or interest therein is permissible under applicable
law, will not constitute or result in a non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Issuer, the Seller,
the Depositor, any Underwriter, the Owner Trustee, the Indenture Trustee, the
Depositor, the Master Servicer or any successor servicer to any obligation in
addition to those undertaken in the Indenture.
[Pursuant to the Indenture, unless a Bond Insurer Default (as defined in
the Indenture) exists (i) the Bond Insurer shall be deemed to be the holder of
the Class 2-A Bonds for certain purposes specified in the Indenture (other than
with respect to payment on the Class 2-A Bonds), and will be entitled to
exercise all rights of the Bondholders thereunder, including the rights of
Bondholders relating to the occurrence of, and the remedies with respect to, an
Event of Default, without the consent of such Bondholders, and (ii) the Trustee
may take actions which would otherwise be at its option or within its
discretion, including actions relating to the occurrence of, and the remedies
with respect to, an Event of Default, only at the direction, or with the
consent, of the Bond Insurer.]
A-1-4
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 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: June 29, 2004
IMPAC CMB TRUST SERIES 2004-6
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-_] Bonds referred to in the within-mentioned
Indenture.
XXXXX FARGO BANK, 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-[_]-[_] BONDS
THIS BOND IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS [_-A-_] BONDS [AND
CLASS M-[_]-[_] BONDS] AS DESCRIBED IN THE INDENTURE.
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.
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 2004-6
COLLATERALIZED ASSET-BACKED BONDS
CLASS M-[_]-[_]
AGGREGATE BOND PRINCIPAL BOND INTEREST
BALANCE: RATE: [ %]
$[ ]
INITIAL BOND PRINCIPAL BOND NO. 1
BALANCE OF THIS BOND: $[ ]
PERCENTAGE INTEREST: 100% CUSIP NO. [ ]
Impac CMB Trust Series 2004-6 (the "Issuer"), a Delaware statutory trust,
for value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ______________________________ ($___________) 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 July 2003 and ending on or before the Payment Date occurring in
_____________ (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 2004-6 (the "Bonds"), issued under an Indenture dated
as of June 29, 2004 (the "Indenture"), between the Issuer and Xxxxx Fargo Bank,
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-[_]-[_] Bonds 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.
A-2-2
The Bonds are subject to redemption in whole, but not in part, by the
Majority Certificateholder 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 aggregate Stated Principal Balance of the
Mortgage Loans as of Cut-off Date and the aggregate amount deposited into the
Group 1 Pre-Funding Account and Group 2 Pre-Funding Account on the Closing Date
and (ii) the Payment Date in July 2014.
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 M- [_]-[_] 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-[_]-[_] 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 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
A-2-3
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.
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 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.
A-2-4
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: June 29, 2004
IMPAC CMB TRUST SERIES 2004-6
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-[_]-[_] Bonds referred to in the within-mentioned
Indenture.
XXXXX FARGO BANK, 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 inthe 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
(Filed Manually)
(In accordance with Rule 202 of Regulation S-T, this Mortgage Loan Schedule, is
being filed in paper pursuant to a continuing hardship exemption.)
B-1
EXHIBIT D
DERIVATIVE CONTRACTS
(Provided Upon Request)
E-1
EXHIBIT D
SPECIAL CERTIFICATE CAP CONTRACT
(Provided Upon Request)
F-1
EXHIBIT E
FORM OF GROUP [_] SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to this Group [_] Subsequent Transfer Instrument, dated
[_______________] (the "Instrument"), between IMH Assets Corp. as Seller (the
"Company"), and Xxxxx Fargo Bank, N.A. as indenture trustee of the IMH Assets
Corp., Collateralized Asset-Backed Bonds, Series 2004-6, as purchaser (the
"Indenture Trustee"), on behalf of Impac CMB Trust Series 2004-6 (the "Issuer"),
as purchaser, and pursuant to the Indenture, dated as of June 29, 2004 (the
"Indenture"), between the Issuer and the Indenture Trustee, as indenture
trustee, the Company and the Indenture Trustee agree to the sale by the Company
and the purchase by the Indenture Trustee in trust, on behalf of the Trust, of
the Group [_] Subsequent Mortgage Loans on the attached Schedule 1 of Mortgage
Loans (the "Group [_] Subsequent Mortgage Loans").
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Indenture.
Section 1. Conveyance of Group [_] Subsequent Mortgage Loans;
Acceptance of Mortgage Loans by the Indenture Trustee.
(a) The Company does hereby sell, transfer, assign, set over and
convey to the Indenture Trustee in trust, on behalf of the Trust, without
recourse, all of its right, title and interest in and to the Group [_]
Subsequent Mortgage Loans, including all amounts due on the Group [_] Subsequent
Mortgage Loans after the related Subsequent Cut-off Date, and all items with
respect to the Group [_] Subsequent Mortgage Loans to be delivered pursuant to
Section 2.05 of the Indenture; provided, however that the Company reserves and
retains all right, title and interest in and to amounts due on the Group [_]
Subsequent Mortgage Loans on or prior to the related Subsequent Cut-off Date.
The Company, contemporaneously with the delivery of this Agreement, has
delivered or caused to be delivered to the Indenture Trustee (or the Custodian)
each item set forth in, and as provided, in Section 2.05 of the Indenture. The
transfer to the Indenture Trustee by the Company of the Group [_] Subsequent
Mortgage Loans identified on the Mortgage Loan Schedule shall be absolute and is
intended by the Company, the Master Servicer, the Indenture Trustee, the
Bondholders to constitute and to be treated as a sale by the Company to the
Trust Fund.
(b) The Company, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Indenture Trustee without recourse for the benefit of the Bondholders all the
right, title and interest of the Company, in, to and under the Group [_]
Subsequent Mortgage Loan Purchase Agreement, dated [_______________], between
the Company, as purchaser, and Impac Mortgage Holdings, Inc., as seller (the
"Purchase Agreement").
(c) The Custodian as agent for the Indenture Trustee acknowledges
receipt of, subject to the exceptions it notes pursuant to the procedures
described in Section 2.03 of the Indenture, the documents (or certified copies
thereof) referred to in Section 2.1(b) of the Group [_] Subsequent Mortgage Loan
Purchase 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
F-2
the Trust Estate as Indenture Trustee in trust for the use and benefit of all
present and future Holders of the Bonds.
(d) Additional terms of the sale are set forth on Attachment A
hereto.
Section 2. Representations and Warranties; Conditions Precedent.
(a) The Company hereby confirms that each of the conditions
precedent and the representations and warranties set forth in Section 2.05 of
the Indenture are satisfied as of the date hereof.
(b) All terms and conditions of the Indenture are hereby ratified
and confirmed; provided, however, that in the event of any conflict, the
provisions of this Instrument shall control over the conflicting provisions of
the Indenture.
Section 3. Recordation of Instrument.
To the extent permitted by applicable law, this Instrument, or a
memorandum thereof if permitted under applicable law, is subject to recordation
in all appropriate public offices for real property records in all of the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Master
Servicer at the Bondholders' expense on direction of the related Bondholders,
but only when accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the Bondholders
or is necessary for the administration or servicing of the Group [_] Subsequent
Mortgage Loans.
Section 4. Governing Law.
This Instrument shall be construed in accordance with the laws of
the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, without giving
effect to principles of conflicts of law.
Section 5. Counterparts.
This Instrument may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same instrument.
Section 6. Successors and Assigns.
This Instrument shall inure to the benefit of and be binding upon
the Company, the Custodian and the Indenture Trustee and their respective
successors and assigns.
F-3
IMH ASSETS CORP.
By:
----------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Indenture Trustee for the Trust.
By:
----------------------------
Name:
Title:
F-4
