EXHIBIT 4.1
Exhibit 4.1
IMPAC CMB TRUST SERIES 2003-9F
Issuer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Indenture Trustee
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INDENTURE
Dated as of July 30, 2003
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COLLATERALIZED ASSET-BACKED BONDS
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TABLE OF CONTENTS
ARTICLE I
Definitions
Section 1.01 Definitions ............................................. 2
Section 1.02 Incorporation by Reference of Trust Indenture Act ....... 2
Section 1.03 Rules of Construction ................................... 2
ARTICLE II
Original Issuance of Bonds
Section 2.01 Form .................................................... 4
Section 2.02 Execution, Authentication and Delivery .................. 4
Section 2.03 Acceptance of Mortgage Loans by Indenture Trustee ....... 4
Section 2.04 Acceptance of the Special Certificate Cap Contract by
Indenture Trustee ....................................... 6
ARTICLE III
Covenants
Section 3.01 Collection of Payments with respect to the Mortgage Loans 7
Section 3.02 Maintenance of Office or Agency ......................... 7
Section 3.03 Money for Payments To Be Held in Trust; Paying Agent .... 7
Section 3.04 Existence ............................................... 8
Section 3.05 Payment of Principal and Interest ....................... 9
Section 3.06 Protection of Trust Estate .............................. 11
Section 3.07 Opinions as to Trust Estate ............................. 12
Section 3.08 Performance of Obligations .............................. 12
Section 3.09 Negative Covenants ...................................... 13
Section 3.10 Annual Statement as to Compliance ....................... 13
Section 3.11 Representations and Warranties Concerning the Mortgage
Loans ................................................... 14
Section 3.12 Amendments to Servicing Agreement ....................... 14
Section 3.13 Master Servicer as Agent and Bailee of the Indenture
Trustee ................................................. 14
Section 3.14 Investment Company Act .................................. 14
Section 3.15 Issuer May Consolidate, etc ............................. 14
Section 3.16 Successor or Transferee ................................. 16
Section 3.17 No Other Business ....................................... 16
Section 3.18 No Borrowing ............................................ 16
Section 3.19 Guarantees, Loans, Advances and Other Liabilities ....... 17
Section 3.20 Capital Expenditures .................................... 17
Section 3.21 Restricted Payments ..................................... 17
Section 3.22 Notice of Events of Default ............................. 17
Section 3.23 Further Instruments and Acts ............................ 17
Section 3.24 Statements to Bondholders ............................... 17
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Section 3.25 Certain Representations Regarding the Trust Estate ...... 17
Section 3.26 Determination of Bond Interest Rate ..................... 19
Section 3.27 [Reserved] .............................................. 19
Section 3.28 Seller Guarantee; Payments Under the Seller Guarantee ... 19
Section 3.29 Allocation of Realized Losses ........................... 19
ARTICLE IV
The Bonds; Satisfaction and Discharge of Indenture
Section 4.01 The Bonds ............................................... 20
Section 4.02 Registration of and Limitations on Transfer and Exchange
of Bonds; Appointment of Bond Registrar and Certificate
Registrar ............................................... 20
Section 4.03 Mutilated, Destroyed, Lost or Stolen Bonds .............. 21
Section 4.04 Persons Deemed Owners ................................... 22
Section 4.05 Cancellation ............................................ 22
Section 4.06 Book-Entry Bonds ........................................ 22
Section 4.07 Notices to Depository ................................... 23
Section 4.08 Definitive Bonds ........................................ 23
Section 4.09 Tax Treatment ........................................... 24
Section 4.10 Satisfaction and Discharge of Indenture ................. 24
Section 4.11 Application of Trust Money .............................. 25
Section 4.12 [Reserved] .............................................. 25
Section 4.13 Repayment of Monies Held by Paying Agent ................ 25
Section 4.14 Temporary Bonds ......................................... 25
Section 4.15 Representation Regarding ERISA .......................... 26
ARTICLE V
Default and Remedies
Section 5.01 Events of Default ....................................... 27
Section 5.02 Acceleration of Maturity; Rescission and Annulment ...... 27
Section 5.03 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee .................................... 28
Section 5.04 Remedies; Priorities .................................... 30
Section 5.05 Optional Preservation of the Trust Estate ............... 31
Section 5.06 Limitation of Suits ..................................... 32
Section 5.07 Unconditional Rights of Bondholders To Receive Principal
and Interest ............................................ 32
Section 5.08 Restoration of Rights and Remedies ...................... 33
Section 5.09 Rights and Remedies Cumulative .......................... 33
Section 5.10 Delay or Omission Not a Waiver .......................... 33
Section 5.11 Control by Bondholders .................................. 33
Section 5.12 Waiver of Past Defaults ................................. 34
Section 5.13 Undertaking for Costs ................................... 34
Section 5.14 Waiver of Stay or Extension Laws ........................ 34
Section 5.15 Sale of Trust Estate .................................... 34
Section 5.16 Action on Bonds ......................................... 36
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Section 5.17 Performance and Enforcement of Certain Obligations ...... 36
ARTICLE VI
The Indenture Trustee
Section 6.01 Duties of Indenture Trustee ............................. 38
Section 6.02 Rights of Indenture Trustee ............................. 39
Section 6.03 Individual Rights of Indenture Trustee .................. 39
Section 6.04 Indenture Trustee's Disclaimer .......................... 40
Section 6.05 Notice of Event of Default .............................. 40
Section 6.06 Reports by Indenture Trustee to Holders and Tax
Administration .......................................... 40
Section 6.07 Compensation and Indemnity .............................. 40
Section 6.08 Replacement of Indenture Trustee ........................ 41
Section 6.09 Successor Indenture Trustee by Xxxxxx ................... 42
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee ....................................... 42
Section 6.11 Eligibility; Disqualification ........................... 43
Section 6.12 Preferential Collection of Claims Against Issuer ........ 43
Section 6.13 Representations and Warranties .......................... 43
Section 6.14 Directions to Indenture Trustee ......................... 44
Section 6.15 The Agents .............................................. 44
ARTICLE VII
Bondholders' Lists and Reports
Section 7.01 Issuer To Furnish Indenture Trustee Names and
Addresses of Bondholders ................................ 45
Section 7.02 Preservation of Information; Communications to
Bondholders ............................................. 45
Section 7.03 Reports of Issuer ....................................... 45
Section 7.04 Reports by Indenture Trustee ............................ 46
Section 7.05 Statements to Bondholders ............................... 46
ARTICLE VIII
Accounts, Disbursements and Releases
Section 8.01 Collection of Money ..................................... 48
Section 8.02 Trust Accounts .......................................... 48
Section 8.03 Officer's Certificate ................................... 49
Section 8.04 Termination Upon Distribution to Bondholders ............ 49
Section 8.05 Release of Trust Estate ................................. 49
Section 8.06 Surrender of Bonds Upon Final Payment ................... 49
Section 8.07 Optional Redemption of the Bonds ........................ 49
ARTICLE IX
Supplemental Indentures
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Section 9.01 Supplemental Indentures Without Consent of Bondholders .. 51
Section 9.02 Supplemental Indentures With Consent of Bondholders ..... 52
Section 9.03 Execution of Supplemental Indentures .................... 53
Section 9.04 Effect of Supplemental Indenture ........................ 54
Section 9.05 Conformity with Trust Indenture Act ..................... 54
Section 9.06 Reference in Bonds to Supplemental Indentures ........... 54
ARTICLE X
Miscellaneous
Section 10.01 Compliance Certificates and Opinions, etc ............... 55
Section 10.02 Form of Documents Delivered to Indenture Trustee ........ 56
Section 10.03 Acts of Bondholders ..................................... 57
Section 10.04 Notices etc., to Indenture Trustee, Issuer and
Rating Agencies ......................................... 57
Section 10.05 Notices to Bondholders; Waiver .......................... 58
Section 10.06 Conflict with Trust Indenture Act ....................... 59
Section 10.07 Effect of Headings ...................................... 59
Section 10.08 Successors and Assigns .................................. 59
Section 10.09 Separability ............................................ 59
Section 10.10 [Reserved] .............................................. 59
Section 10.11 Legal Holidays .......................................... 59
Section 10.12 GOVERNING LAW ........................................... 59
Section 10.13 Counterparts ............................................ 59
Section 10.14 Recording of Indenture .................................. 59
Section 10.15 Issuer Obligation ....................................... 59
Section 10.16 No Petition ............................................. 60
Section 10.17 Inspection .............................................. 60
EXHIBITS
Exhibit A-1 -- Form of Class A Bonds
Exhibit A-2 -- Form of Class M Bonds
Exhibit B -- Mortgage Loan Schedule
Exhibit C -- Form of Initial Certification
Exhibit D -- Form of Final Certification
Exhibit E -- Seller Guarantee
Exhibit F -- Special Certificate Cap Contract
Appendix A -- Definitions
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This Indenture, dated as of July 30, 2003, is entered into between
Impac CMB Trust Series 2003-9F, a Delaware statutory trust, as Issuer (the
"Issuer"), and Deutsche Bank National Trust Company, 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 2003-9F (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
rights under (i) the Mortgage Loan Sale and Contribution Agreement as assigned
to the Issuer, (ii) the Servicing Agreement and any Subservicing Agreements,
(iii) any title, hazard and primary insurance policies with respect to the
Mortgaged Properties, (iv) the rights with respect to the Derivative Contract
and the Special Certificate Cap Contract as assigned to the Issuer; and (v) the
Seller Guarantee; 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.
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;
(v) words in the singular include the plural and words in the
plural include the singular; and
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(vi) any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified or supplemented and includes (in the case of agreements
or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
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ARTICLE II
ORIGINAL ISSUANCE OF BONDS
Section 2.01 Form. The Class A Bonds and Class M Bonds, 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 A-1 Bonds and Class M Bonds for original issue in an aggregate initial
principal amount of $155,543,000. The Class A-1 Bonds shall be issued in an
aggregate initial principal amount of $146,945,000, the Class M Bonds shall be
issued in an aggregate initial principal amount of $8,598,000. The Class A-IO
Bonds shall be issued in an aggregate initial notional amount of $4,885,000.
Each of the Bonds shall be dated the date of its authentication. The Bonds
shall be issuable as registered Bonds and the Bonds shall be issuable in the
minimum initial Bond Principal Balances or Notional Amounts of $25,000 and in
integral multiples of $1 in excess thereof.
No Bond shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Bond a certificate
of authentication substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its authorized signatories,
and such certificate upon any Bond shall be conclusive evidence, and the only
evidence, that such Bond has been duly authenticated and delivered hereunder.
Section 2.03 Acceptance of Mortgage Loans by Indenture Trustee. (a) The
Indenture Trustee acknowledges receipt of, subject to the exceptions it notes
pursuant to the procedures described below, the documents (or certified copies
thereof) referred to in Section 2.1(b) of the Mortgage Loan Sale and
Contribution Agreement, and declares that it holds and will continue to
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hold those documents and any amendments, replacements or supplements thereto and
all other assets of the Trust Estate as Indenture Trustee in trust for the use
and benefit of all present and future Holders of the Bonds. No later than 45
days after the Closing Date (or, with respect to any Eligible Substitute
Mortgage Loan, within 5 days after the receipt by the Indenture Trustee thereof
and, with respect to any documents received beyond 45 days after the Closing
Date, promptly thereafter), the Indenture Trustee agrees, for the benefit of the
Bondholders, to review each Mortgage File delivered to it and to execute and
deliver, or cause to be executed and delivered, to the Seller and the Master
Servicer an Initial Certification in the form annexed hereto as Exhibit C. In
conducting such review, the Indenture Trustee will ascertain whether all
required documents described in Section 2.1(b) of the Mortgage Loan Sale and
Contribution Agreement 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 Indenture Trustee's obligations shall extend only to documents
actually delivered pursuant to such subclause). In performing any such review,
the Indenture Trustee may conclusively rely on the purported due execution and
genuineness of any such document and on the purported genuineness of any
signature thereon. If the Indenture Trustee finds any document constituting part
of the Mortgage File not to have been executed or received, or to be unrelated
to the Mortgage Loans identified in Exhibit B to this Indenture or to appear to
be defective on its face, the Indenture Trustee shall promptly notify the Seller
of such finding and the Seller's obligation to cure such defect or repurchase or
substitute for the related Mortgage Loan. To the extent the Indenture Trustee
has not received a Mortgage File by the Closing Date, the Indenture Trustee
shall not require the deposit of cash into the Payment Account or any other
account to cover the amount 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 Cut-off Date Balance.
(b) No later than 180 days after the Closing Date, the Indenture Trustee
will review, for the benefit of the Bondholders, the Mortgage Files and will
execute and deliver or cause to be executed and delivered to the Seller, a Final
Certification in the form annexed hereto as Exhibit D. In conducting such
review, the Indenture Trustee will ascertain whether an original of each
document described in subclauses (b)(ii)-(iv) of Section 2.1 of the Mortgage
Loan Sale and Contribution Agreement required to be recorded has been returned
from the recording office with evidence of recording thereon or a certified copy
has been obtained from the recording office. If the Indenture Trustee finds any
document constituting part of the Mortgage File has not been received, or to be
unrelated, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans identified in Exhibit B to this
Indenture or to appear defective on its face, the Indenture Trustee shall
promptly notify the Seller.
(c) Upon deposit of the Repurchase Price in the Payment Account, the
Indenture Trustee shall release to the Seller the related Mortgage File and
shall execute and deliver all instruments of transfer or assignment, without
recourse, furnished to it by the Seller as are necessary to vest in the Seller
title to and rights under the related Mortgage Loan. Such purchase shall be
deemed to have occurred on the date on which certification of the deposit of the
Repurchase Price in the Payment Account was received by the Indenture Trustee.
The Indenture
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Trustee shall amend the applicable Mortgage Loan Schedule to reflect such
repurchase and shall promptly notify the Master Servicer and the Rating Agencies
of such amendment.
Section 2.04 Acceptance of the Special Certificate Cap Contract by
Indenture Trustee. (a) The Indenture Trustee acknowledges receipt of the Special
Certificate Cap Contract and declares that it holds and will continue to hold
this document 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 Special Certificate Cap Contract in accordance with its terms.
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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 c/o DTC Transfer Services, 00
Xxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and notices and
demands may be made or served at the Corporate Trust Office, and the Issuer
hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
Section 3.03 Money for Payments To Be Held in Trust; Paying Agent. (a) As
provided in Section 3.01, all payments of amounts due and payable with respect
to any Bonds that are to be made from amounts withdrawn from the Payment Account
pursuant to Section 3.01 shall be made on behalf of the Issuer by the Indenture
Trustee or by the Paying Agent, and no amounts so withdrawn from the Payment
Account for payments of Bonds shall be paid over to the Issuer except as
provided in this Section 3.03. The Issuer hereby appoints the Indenture Trustee
as its Paying Agent.
The Issuer will cause each Paying Agent other than the Indenture Trustee
to execute and deliver to the Indenture Trustee an instrument in which such
Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent it hereby so agrees), subject to the provisions of
this Section 3.03, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Bonds in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as herein
provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer of which it has actual knowledge in the making of any payment
required to be made with respect to the Bonds;
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(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
Bonds if at any time it ceases to meet the standards required to be met by
a Paying Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Bonds of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; and
(vi) not commence a bankruptcy proceeding against the Issuer
in connection with this Indenture.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Request
direct any Paying Agent to pay to the Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Bond and remaining unclaimed for one year
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request; and the Holder of such Bond shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
an Authorized Newspaper published in the English language, notice that such
money remains unclaimed and that, after a date specified therein which shall not
be less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Issuer. The Indenture Trustee,
may also adopt and employ, at the expense and direction of the Issuer, any other
reasonable means of notification of such repayment (including, but not limited
to, mailing notice of such repayment to Holders whose Bonds have been called but
have not been surrendered for redemption or whose right to or interest in monies
due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for each
such Holder).
Section 3.04 Existence. The Issuer will keep in full effect its existence,
rights and franchises as a 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
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franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification 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.
(b) On each Payment Date, the Available Funds shall be distributed in the
following order of priority, in each case to the extent of the Available Funds
remaining for such Payment Date; provided, however, that any amounts
representing payments from the Seller Guarantee shall be used to pay interest to
the Class A-IO Bondholders pursuant to clause (b)(i) below:
(i) first, to the Holders of the Class A-IO Bonds, the related
Accrued Bond Interest for such Class for such Payment Date;
(ii) second, to the Holders of the Class A-1 Bonds, the
related Accrued Bond Interest for such Class for such Payment Date; and
(iii) third, to the Holders of the Class M Bonds, the related
Accrued Bond Interest for such Class for such Payment Date.
(c) On each Payment Date, the Holders of each Class of Bonds, other than
the Class A-IO Bonds, shall be entitled to receive payments in respect of
principal equal the Principal Distribution Amount for that Payment Date,
allocated on a pro rata basis, based on 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 shall be paid as
follows:
(i) to the Holders of the Class or Classes of Bonds then
entitled to receive distributions in respect of principal, in an amount
equal to any Extra Principal Distribution Amount, payable to such Holders
as part of the Principal Distribution Amount as described in clause (c)
above;
(ii) to the Holders of the Class A-1 Bonds and Class A-IO
Bonds, pro rata, and then the Class M Bonds, any Unpaid Interest Shortfall
for such Bonds on such Payment Date, to the extent not previously
reimbursed;
(iii) to the Holders of the Class M Bonds, in an amount equal
to the Allocated Realized Loss Amount for the Class M Bonds;
(iv) to the Holders of the Class A-1 Bonds, and then to the
Class M Bonds, any related Basis Risk Shortfall Carry-Forward Amount for
such Bonds on such Payment Date, to the extent not covered by the
Derivative Contract;
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(v) to the Indenture Trustee for amounts owing the Indenture
Trustee hereunder (other than the Indenture Trustee Fee) remaining unpaid;
and
(vi) to the Holders of the Certificates as provided in the
Agreements.
(e) On each Payment Date, any amounts received from the Derivative
Contract will be allocated to the Class A-1 Bonds, Class M Bonds and the
Certificates in the following order of priority, in each case to the extent of
amounts remaining:
(i) to the Holders of the Class A-1 Bonds, and then the Class
M Bonds, any related Basis Risk Shortfall Carry-Forward Amount for such
Payment Date; and
(ii) any remaining amounts to the Holders of the Certificates.
(f) On each Payment Date any amounts received in respect of the Special
Certificate Cap Contract and all prepayment charges received by the Indenture
Trustee shall be distributed to the Certificate Paying Agent, as designee of the
Issuer, for the benefit of the Holders of the Trust Certificates.
(g) Each distribution with respect to a Book-Entry Bond shall be paid to
the Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the Bond
Owners that it represents and to each indirect participating brokerage firm (a
"brokerage firm" or "indirect participating firm") for which it acts as agent.
Each brokerage firm shall be responsible for disbursing funds to the Bond Owners
that it represents. None of the Indenture Trustee, the Bond Registrar, the
Paying Agent, the Depositor or the Master Servicer shall have any responsibility
therefor except as otherwise provided by this Indenture or applicable law.
(h) On each Payment Date, the Certificate Paying Agent shall deposit in
the Certificate Distribution Account all amounts it received pursuant to this
Section 3.05 for the purpose of distributing such funds to the
Certificateholders.
(i) Any installment of interest or principal, if any, payable on any Bond
that is punctually paid or duly provided for by the Issuer on the applicable
Payment Date shall, if such Holder shall have so requested at least five
Business Days prior to the related Record Date, be paid to each Holder of record
on the preceding Record Date, by wire transfer to an account specified in
writing by such Holder reasonably satisfactory to the Indenture Trustee as of
the preceding Record Date or in all other cases or if no such instructions have
been delivered to the Indenture Trustee, by check to such Bondholder mailed to
such Holder's address as it appears in the Bond Register in the amount required
to be distributed to such Holder on such Payment Date pursuant to such Holder's
Bonds; provided, however, that the Indenture Trustee shall not pay to such
Holders any amount required to be withheld from a payment to such Holder by the
Code.
(j) The principal of each Bond, other than the Class A-IO Bond, shall be
due and payable in full on the Final Scheduled Payment Date for such Bond as
provided in the forms of
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Bond set forth in Exhibits A-1 and A-2 to this Indenture. All principal and
interest 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.
(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).
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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 2004, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel at the
expense of the Issuer either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain the
lien and first priority security interest in the Collateral and reciting the
details of such action or stating that in the opinion of such counsel no such
action is necessary to maintain such lien and security interest. Such Opinion of
Counsel shall also describe the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest in the Collateral until December 31
in the following calendar year.
Section 3.08 Performance of Obligations. (a) The Issuer will punctually
perform and observe all of its obligations and agreements contained in this
Indenture, the Basic Documents and in the instruments and agreements included in
the Trust Estate.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer.
(c) The Issuer will not take any action or permit any action to be taken
by others which would release any Person from any of such Person's covenants or
obligations under any of the documents relating to the Mortgage Loans or under
any instrument included in the Trust Estate, or which would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any of the documents relating to the Mortgage
Loans or any such instrument, except such actions as the Master Servicer is
expressly permitted to take in the Servicing Agreement. The Indenture Trustee,
as pledgee of the Mortgage Loans, may exercise the rights of the Issuer to
direct the actions of the Master Servicer pursuant to the Servicing Agreement.
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(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 Sale and Contribution Agreement or
in any Basic Document, if any such action would materially and adversely
affect the interests of the Bondholders.
Section 3.10 Annual Statement as to Compliance. The Issuer will deliver to
the Indenture Trustee, by March 1 of each fiscal year commencing with the
calendar year 2004 (which, for the Issuer, is the calendar year) of the Issuer,
an Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year
and of its performance under this Indenture has been made under such
Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has complied with all conditions and covenants
under this Indenture throughout such year, or, if there has been a default
in its compliance with any such condition or covenant, specifying each
such default known to such Authorized Officer and the nature and status
thereof.
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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 the Mortgage Loan Sale and
Contribution Agreement concerning the Seller to the same extent as though such
representations and warranties were made directly to the Indenture Trustee. If a
Responsible Officer of the Indenture Trustee has actual knowledge of any breach
of any representation or warranty made by the Seller in the Mortgage Loan Sale
and Contribution Agreement, 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.
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 all other amounts payable to the Indenture Trustee, the payment
to the Certificate Paying Agent of
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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 Class A Bonds or the
Class M Bonds to be reduced, suspended or withdrawn or to be considered by
either Rating Agency to be below investment grade;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered a copy thereof to the Indenture Trustee) to the
effect that such transaction will not (A) result in a "substantial
modification" of the Bonds under Treasury Regulation section 1.1001-3, or
adversely affect the status of the Bonds as indebtedness for federal
income tax purposes, or (B) if 100% of the Certificates are not owned by
IMH Assets Corp., cause the Trust to be subject to an entity level tax for
federal income tax purposes;
(v) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for or
relating to such transaction have been complied with (including any filing
required by the Exchange Act), and that such supplemental indenture is
enforceable.
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer, the conveyance or transfer of which
is hereby restricted, shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any state thereof, (B) expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual payment of the
principal of and interest on all Bonds and the performance or observance
of every agreement and covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided herein, (C) expressly
agree by means of such supplemental indenture that all right, title and
interest so conveyed or transferred shall be subject and subordinate to
the rights of the Holders of the Bonds, (D) unless otherwise provided in
such supplemental indenture, expressly agree to indemnify, defend and hold
harmless the Issuer and the Indenture Trustee against and from any loss,
liability or expense arising under or related to this Indenture and the
Bonds and (E) expressly agree by means of such supplemental
15
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 Class A Bonds or the
Class M 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.
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.
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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 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 3.22 Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and under the Trust Agreement.
Section 3.23 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 3.24 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, xxxxx://xxx.xxxxxxxxxxxxxx.xx.xxx (or
deliver at the recipient's option), to each Bondholder and Certificateholder the
most recent statement prepared by the Master Servicer pursuant to Section 4.01
of the Servicing Agreement.
Section 3.25 Certain Representations Regarding the Trust Estate.
(a) With respect to that portion of the Collateral described in clauses
(a) through (c) 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
17
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
(d) and (e) 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 "general intangibles" within
the meaning of the applicable UCC.
(iii) The Issuer owns and has good and marketable title to the
Collateral, free and clear of any lien, claim or encumbrance of any
Person.
(iv) 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
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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 3.25 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 3.26 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, other than the Class A-IO
Bonds, for the following Accrual Period and shall inform the Issuer, the Bond
Insurer, 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 3.27 [Reserved].
Section 3.28 Seller Guarantee; Payments Under the Seller Guarantee. On the
Closing Date, the Seller Guarantee shall be assigned to the Trust. The Indenture
Trustee shall enforce the Seller Guarantee in accordance with its terms. On each
Determination Date, the Indenture Trustee shall calculate the Guaranteed Amount,
if any, and shall make any claim on behalf of the Issuer under the Seller
Guarantee at least two Business Days prior to the related Payment Date, for
payment to the Indenture Trustee of the amount of any such claim no later than
the Business Day prior to the next Payment Date. Upon receipt of such Guaranteed
Amount in accordance with the terms of the Seller Guarantee, such payment shall
be deposited by the Indenture Trustee into the Payment Account for distribution
to the Class A-IO Bondholders pursuant to Section 3.05 hereof. On each Payment
Date, any payments received by the Indenture Trustee in respect of the Seller
Guarantee shall be paid to the Holders of the Class A-IO Bonds.
Section 3.29 Allocation of Realized Losses. (a) Prior to each Payment
Date, the Master Servicer shall determine the total amount of Realized Losses
that occurred during the related Prepayment Period. The amount of each Realized
Loss shall be evidenced by an Officer's Certificate delivered to the Indenture
Trustee with the related Remittance Report.
(b) On each Payment Date following the application of all amounts
distributable on such date, to the extent the aggregate Stated Principal Balance
of the Mortgage Loans is less than the aggregate Bond Principal Balances of the
Bonds due to Realized Losses on the Mortgage Loans, the Bond Principal Balance
of the Class M Bonds shall be reduced, until the Bond Principal Balance thereof
has been reduced to zero. All Realized Losses allocated to the Class M Bonds
will be allocated in proportion to the Percentage Interests evidenced thereby.
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ARTICLE IV
THE BONDS; SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.01 The Bonds. Each Class of Bonds shall be registered in the
name of a nominee designated by the Depository. Beneficial Owners will hold
interests in the Bonds through the book-entry facilities of the Depository in
minimum initial Bond Principal Balances or Notional Amounts 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 or Notional Amounts
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 or Notional Amounts evidencing the same Class and aggregate Percentage
Interests upon surrender of the Bonds to be exchanged at the Corporate Trust
Office of the Bond Registrar. Whenever any Bonds are so surrendered for
exchange, the Issuer shall execute and the Indenture Trustee shall authenticate
and deliver the Bonds which the Bondholder making the exchange is entitled to
receive. Each Bond presented or surrendered for registration of transfer or
exchange shall (if so required by the Bond Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Bond Registrar duly executed by the Holder thereof or his attorney duly
authorized in writing with such signature guaranteed by a commercial bank or
trust company located or having a correspondent located in the city of New York.
Bonds delivered upon any such transfer or exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Bonds surrendered.
No service charge shall be made for any registration of transfer or
exchange of Bonds, but the Bond Registrar shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of Bonds.
The Issuer hereby appoints the Indenture Trustee as (i) Certificate
Registrar to keep at its Corporate Trust Office a Certificate Register pursuant
to Section 3.09 of the Trust Agreement in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges thereof pursuant to
Section 3.05 of the Trust Agreement and (ii) Bond Registrar under this
Indenture. The Indenture Trustee hereby accepts such appointments.
Section 4.03 Mutilated, Destroyed, Lost or Stolen Bonds. If (i) any
mutilated Bond is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Bond, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Bond Registrar or
the Indenture Trustee that such Bond has been acquired by a bona fide purchaser,
and provided that the requirements of Section 8-405 of the UCC are met, the
Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Bond, a replacement Bond; provided, however, that if
any such destroyed, lost or stolen Bond, but not a mutilated Bond, shall have
become or within seven days shall be due and payable, instead of issuing a
replacement Bond, the Issuer may pay such destroyed, lost or stolen Bond when so
due or payable without surrender thereof. If, after the delivery of such
replacement Bond or payment of a destroyed, lost or stolen Bond pursuant to the
proviso to the preceding sentence, a bona fide purchaser of the original Bond in
lieu of which such replacement Bond was issued presents for payment such
original Bond, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
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Upon the issuance of any replacement Bond under this Section 4.03, the
Issuer may require the payment by the Holder of such Bond of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Bond issued pursuant to this Section 4.03 in replacement
of any mutilated, destroyed, lost or stolen Bond shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Bond shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Bonds duly issued hereunder.
The provisions of this Section 4.03 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Bonds.
Section 4.04 Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Bond, the Issuer, the Indenture Trustee, the
Paying Agent and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name any Bond is registered (as of the day of determination) as
the owner of such Bond for the purpose of receiving payments of principal of and
interest, if any, on such Bond and for all other purposes whatsoever, whether or
not such Bond be overdue, and neither the Issuer, the Indenture Trustee, the
Paying Agent nor any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
Section 4.05 Cancellation. All Bonds surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly cancelled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Bonds previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Bonds so delivered shall be promptly cancelled by the Indenture Trustee.
No Bonds shall be authenticated in lieu of or in exchange for any Bonds
cancelled as provided in this Section 4.05, except as expressly permitted by
this Indenture. All cancelled Bonds may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer Request that they
be destroyed or returned to it; provided, however, that such Issuer Request is
timely and the Bonds have not been previously disposed of by the Indenture
Trustee.
Section 4.06 Book-Entry Bonds. The Bonds, upon original issuance, will be
issued in the form of typewritten Bonds representing the Book-Entry Bonds, to be
delivered to The Depository Trust Company, the initial Depository, by, or on
behalf of, the Issuer. The Bonds shall initially be registered on the Bond
Register in the name of Cede & Co., the nominee of the initial Depository, and
no Beneficial Owner will receive a Definitive Bond representing such Beneficial
Owner's interest in such Bond, except as provided in Section 4.08. With respect
to such Bonds, unless and until definitive, fully registered Bonds (the
"Definitive Bonds") have been issued to Beneficial Owners pursuant to Section
4.08:
(i) the provisions of this Section 4.06 shall be in full force
and effect;
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(ii) the Bond Registrar, the Paying Agent and the Indenture
Trustee shall be entitled to deal with the Depository for all purposes of
this Indenture (including the payment of principal of and interest on the
Bonds and the giving of instructions or directions hereunder) as the sole
holder of the Bonds, and shall have no obligation to the Beneficial Owners
of the Bonds;
(iii) to the extent that the provisions of this Section 4.06
conflict with any other provisions of this Indenture, the provisions of
this Section 4.06 shall control;
(iv) the rights of Beneficial Owners shall be exercised only
through the Depository and shall be limited to those established by law
and agreements between such Owners of Bonds and the Depository and/or the
Depository Participants. Unless and until Definitive Bonds are issued
pursuant to Section 4.08, the initial Depository will make book-entry
transfers among the Depository Participants and receive and transmit
payments of principal of and interest on the Bonds to such Depository
Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Bonds evidencing
a specified percentage of the Bond Principal Balances of the Bonds (for
which purpose the Class A-IO Bonds will be deemed to have a Bond Principal
Balance equal to 5% of the aggregate Bond Principal Balance of the other
Classes of 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 (for
which purpose the Class A-IO Bonds will be deemed to have a Bond Principal
Balance equal to 5% of the aggregate Bond Principal Balance of the other Classes
of 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
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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.
Section 4.09 Tax Treatment. The Issuer has entered into this Indenture,
and the Bonds will be issued, with the intention that, for federal, state and
local income, single business and franchise tax purposes, the Bonds will qualify
as indebtedness. The Issuer and the Indenture Trustee (in accordance with
Section 6.06 hereof), by entering into this Indenture, and each Bondholder, by
its acceptance of its Bond (and each Beneficial Owner by its acceptance of an
interest in the applicable Book-Entry Bond), agree to treat the Bonds for
federal, state and local income, single business and franchise tax purposes as
indebtedness.
Section 4.10 Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect with respect to the Bonds except as to (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Bonds, (iii) rights of Bondholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.06, 3.09,
3.17, 3.19 and 3.20, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under Section
6.07 and the obligations of the Indenture Trustee under Section 4.11) and (vi)
the rights of Bondholders as beneficiaries hereof with respect to the property
so deposited with the Indenture Trustee payable to all or any of them, and the
Indenture Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Bonds and shall release and deliver the Collateral to or
upon the order of the Issuer, when
(A) either
(1) all Bonds theretofore authenticated and delivered (other
than (i) Bonds that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 4.03 hereof and
(ii) Bonds for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in
Section 3.03) have been delivered to the Indenture Trustee for
cancellation; or
(2) All Bonds not theretofore delivered to the Indenture
Trustee for cancellation
a. have become due and payable,
b. will become due and payable at the Final Scheduled
Payment Date within one year, or
c. have been called for early redemption and the
Trust has been terminated pursuant to Section 8.07
hereof,
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and the Issuer, in the case of a. or b. above, has irrevocably deposited or
caused to be irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness on
such Bonds then outstanding not theretofore delivered to the Indenture Trustee
for cancellation when due on the Final Scheduled Payment Date or other final
Payment Date and has delivered to the Indenture Trustee a verification report
from a nationally recognized accounting 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,
25
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 c/o DTC Transfer Services, 00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Bonds, the Issuer shall execute and the Indenture
Trustee shall authenticate and make available for delivery, in exchange
therefor, Definitive Bonds of authorized denominations and of like tenor, class
and aggregate principal amount. Until so exchanged, such temporary Bonds shall
in all respects be entitled to the same benefits under this Indenture as
Definitive Bonds.
Section 4.15 Representation Regarding ERISA. By acquiring a Bond or
interest therein, each Holder of such Bond or Beneficial Owner of any such
interest will be deemed to represent that either (1) it is not acquiring the
Bond with 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 as a result of the Issuer, the Seller, the
Depositor, the Underwriters, the Owner Trustee, the Indenture Trustee, the
Master Servicer, any Subservicer, any other servicer, any administrator, any
provider of credit support, any owner of the Certificates, or any of their
Affiliates being a "Party in Interest" (within the meaning of ERISA) or
Disqualified Person (within the meaning of the Code) with respect to such Holder
or Beneficial Owner that is a Plan and (B) the Bonds are rated investment grade
or better and such person believes that the Bonds are properly treated as
indebtedness without substantial equity features for purposes of the DOL
Regulations, and agrees to so treat the Bonds. Alternatively, regardless of the
rating of the 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, 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, 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, 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
and not less than a majority of the Notional Amount of the Class A-IO Bonds may
declare the Bonds to be immediately due and payable, by a notice in writing to
the Issuer (and to the Indenture Trustee if such notice is given by
Bondholders), and upon any such declaration the unpaid Bond Principal Balance of
the Bonds, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity with
respect to an Event of Default has been made and before a judgment or decree for
payment of the money due has been obtained by the Indenture Trustee as
hereinafter in this Article V provided, Holders of Bonds representing not less
than a majority of the aggregate Bond Principal Balance of the Bonds and not
less than a majority of the Notional Amount of the Class A-IO Bonds, by written
notice to the Issuer and the Indenture Trustee, may waive the related Event of
Default and rescind and annul such declaration and its consequences if
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on the Bonds and
all other amounts that would then be due hereunder or upon the Bonds
if the Event of Default giving rise to such acceleration had not
occurred; and
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel;
and
(ii) all Events of Default, other than the nonpayment of the
principal of the Bonds that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.12.
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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 and a majority of the Notional Amount of the Class A-IO
Bonds, pay to the Indenture Trustee, for the benefit of the Holders of Bonds,
the whole amount then due and payable on the Bonds for principal and interest,
with interest at the applicable Bond Interest Rate upon the overdue principal,
and in addition thereto such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and its agents and
counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, subject to the provisions of Section 10.16 hereof, may institute a
Proceeding for the collection of the sums so due and unpaid, and may prosecute
such Proceeding to judgment or final decree, and may enforce the same against
the Issuer or other obligor upon the Bonds and collect in the manner provided by
law out of the property of the Issuer or other obligor the Bonds, wherever
situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee, subject to the provisions of Section 10.16 hereof may, as more
particularly provided in Section 5.04 hereof, in its discretion, proceed to
protect and enforce its rights and the rights of the Bondholders, by such
appropriate Proceedings as the Indenture Trustee shall deem most effective or as
directed in writing by Holders of a majority of the aggregate Bond Principal
Balances of the Bonds (for which purpose the Class A-IO Bonds will be deemed to
have a Bond Principal Balance equal to 5% of the aggregate Bond Principal
Balance of the other Classes of 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 upon the written direction of the
Holders of a majority of the aggregate Bond Principal Balances of the Bonds and
a majority of the Notional Amount of the Class A-IO Bonds, irrespective of
whether the
28
principal of any Bonds shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Bonds and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith), and of the
Bondholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Bonds in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Bondholders and of the
Indenture Trustee on their behalf, and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Indenture Trustee or the Holders of Bonds allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Bondholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Bondholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Bondholder any plan of reorganization, arrangement, adjustment or
composition affecting the Bonds or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Bondholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Bonds, may be enforced by the Indenture Trustee without the
possession of any of the Bonds or the production thereof in any trial or other
Proceedings relative thereto, and any such action or proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an
29
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Holders of the Bonds, subject to Section 5.05
hereof.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Bonds, and it shall not be necessary to
make any Bondholder a party to any such Proceedings.
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, at the written direction of the Holders
of a majority of the aggregate Bond Principal Balances of the Bonds and a
majority of the Notional Amount of the Class A-IO 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 50% of the aggregate
Bond Principal Balance and 50% of the Notional Amount of the Class A-IO 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
the Bonds for principal and interest or (C) the Indenture Trustee determines
that the Mortgage Loans will not continue to provide sufficient funds for the
payment of principal of and interest on the Bonds as they would have become due
if the Bonds had not been declared due and payable, and the Indenture Trustee
obtains the consent of the Holders of a majority of the aggregate Bond Principal
Balance of the Class A-1 Bonds and Class M Bonds and a majority of the Notional
Amount of the Class A-IO 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
30
Trust Estate for such purpose. Notwithstanding the foregoing, so long as an
Event of Servicer Termination has not occurred, any Sale of the Trust Estate
shall be made subject to the continued servicing of the Mortgage Loans by the
Master Servicer as provided in the Servicing Agreement.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 6.07
hereof;
SECOND: to the Bondholders for amounts due and unpaid on the Bonds
(including Unpaid Interest Shortfalls but not including any Basis Risk Shortfall
Carry-Forward Amount) with respect to interest, first, to the Class A-IO
Bondholders, second to the Class A-1 Bondholders, and third, to the Class M
Bondholders, according to the amounts due and payable on the Bonds for interest;
THIRD: to the Bondholders for the amounts due and unpaid on the
Class A-1 and Class M Bonds with respect to principal, pro rata, without
preference or priority of any kind, until the Bond Principal Balance of each
such Class is reduced to zero;
FOURTH: to the Bondholders for amounts due and unpaid on the Bonds
with respect to any related Basis Risk Shortfall Carry-Forward Amount not
previously paid, first, to the Class A-1 Bondholders, and second, to the Class M
Bondholders, according to the amounts due and payable on the Bonds with respect
thereto, from amounts available in the Trust Estate for the Bondholders;
FIFTH: to the Bondholders for amounts due and unpaid on the Bonds
with respect to any related Unpaid Interest Shortfall not previously paid,
first, to the Class A Bondholders, and second, to the Class M Bondholders, in
accordance to the amounts due and payable on the Bonds with respect thereto,
from amounts available in the Trust Estate for the Bondholders;
SIXTH: to the payment of the remainder, if any to the Certificate
Paying Agent on behalf of the Issuer or to any other person legally entitled
thereto.
The Indenture Trustee may fix a record date and Payment Date for any
payment to Bondholders pursuant to this Section 5.04. At least 15 days before
such record date, the Indenture Trustee shall mail to each Bondholder a notice
that states the record date, the Payment Date and the amount to be paid.
Section 5.05 Optional Preservation of the Trust Estate. If the Bonds have
been declared to be due and payable under Section 5.02 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, elect to take and maintain possession of
the Trust Estate. It is the desire of the parties hereto and the Bondholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Bonds and other obligations of the Issuer, and the Indenture
Trustee shall take such desire into account when determining whether or not to
take and maintain possession of the Trust Estate. In determining whether to take
and maintain possession of the Trust Estate, the Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment
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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 (for which purpose the Class A-IO Bonds
will be deemed to have a Bond Principal Balance equal to 5% of the
aggregate Bond Principal Balance of the other Classes of 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
(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 aggregate Bond Principal Balance and a
majority of the Notional Amount of the Class A-IO 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 (for which purpose
the Class A-IO Bonds will be deemed to have a Bond Principal Balance equal to 5%
of the aggregate Bond Principal Balance of the other Classes of 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
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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.
Section 5.11 Control by Bondholders. The Holders of a majority of the
aggregate Bond Principal Balances of the Class A-1 Bonds and Class M Bonds and a
majority of the Notional Amount of the Class A-IO 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 Class A-1 Bonds and
Class M Bonds and 100% of the Notional Amount of the Class A-IO Bonds;
(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 a majority of the aggregate Bond Principal
Balances of the Class A-1 Bonds and Class M Bonds and a majority of the
Notional Amount of the Class A-IO Bonds.
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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 Class A-1 Bonds and Class M Bonds and a majority of the
Notional Amount of the Class A-IO Bonds may waive any past Event of Default and
its consequences except an Event of Default (a) with respect to payment of
principal of or interest on any of the Bonds or (b) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Bond. In the case of any such waiver, the Issuer, the Indenture
Trustee and the Holders of the Bonds shall be restored to their former positions
and rights hereunder, respectively, but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereto.
Upon any such waiver, any Event of Default arising therefrom shall be
deemed to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereto.
Section 5.13 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Bond and each Beneficial Owner of any interest therein by
such Xxxxxx's or Beneficial Owner's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Bondholder, or group of
Bondholders, in each case holding in the aggregate more than 10% of the Bond
Principal Balances of the Bonds (for which purpose the Class A-IO Bonds will be
deemed to have a Bond Principal Balance equal to 5% of the aggregate Bond
Principal Balance of the other Classes of Bonds) or (c) any suit instituted by
any Bondholder for the enforcement of the payment of principal of or interest on
any Bond on or after the respective due dates expressed in such Bond and in this
Indenture.
Section 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of 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
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shall not be exhausted by any one or more Sales as to any portion of the Trust
Estate remaining unsold, but shall continue unimpaired until the entire Trust
Estate shall have been sold or all amounts payable on the Bonds and under this
Indenture shall have been paid. The Indenture Trustee may from time to time
postpone any public Sale by public announcement made at the time and place of
such Sale. The Indenture Trustee hereby expressly waives its right to any amount
fixed by law as compensation for any Sale.
(b) The Indenture Trustee shall not in any private Sale sell the Trust
Estate, or any portion thereof, unless
(1) the Holders of all Bonds consent to or direct the Indenture
Trustee to make, such Sale, or
(2) the proceeds of such Sale would be not less than the entire
amount which would be payable to the Bondholders under the Bonds, in full
payment thereof in accordance with Section 5.02 hereof, on the Payment
Date next succeeding the date of such Sale, or
(3) the Indenture Trustee determines that the conditions for
retention of the Trust Estate set forth in Section 5.05 hereof cannot be
satisfied (in making any such determination, the Indenture Trustee may
rely upon an opinion of an Independent investment banking firm obtained
and delivered as provided in Section 5.05 hereof), and the Holders of
Bonds representing at least 100% of the Bond Principal Balances and 100%
of the Notional Amount of the Class A-IO 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 (for which purpose the Class A-IO Bonds will be deemed to
have a Bond Principal Balance equal to 5% of the aggregate Bond Principal
Balance of the other Classes of Bonds) have otherwise consented or directed the
Indenture Trustee, at any public Sale of all or any portion of the Trust Estate
at which a minimum bid equal to or greater than the amount described in
paragraph (2) of subsection (b) of this Section 5.15 has not been established by
the Indenture Trustee and no Person bids an amount equal to or greater than such
amount, the Indenture Trustee, as trustee for the benefit of the Holders of the
Bonds, shall bid an amount at least $1.00 more than the highest other bid.
(d) In connection with a Sale of all or any portion of the Trust Estate,
(1) any Holder or Holders of Bonds may bid for and purchase the
property offered for sale, and upon compliance with the terms of sale may
hold, retain and possess and dispose of such property, without further
accountability, and may, in paying the purchase 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
35
appropriately stamped to show such partial payment;
(2) the Indenture Trustee may bid for and acquire the property
offered for Sale in connection with any Sale thereof, and, subject to any
requirements of, and to the extent permitted by, applicable law in
connection therewith, may purchase all or any portion of the Trust Estate
in a private sale, and, in lieu of paying cash therefor, may make
settlement for the purchase price by crediting the gross Sale price
against the sum of (A) the amount which would be distributable to the
Holders of the Bonds and Holders of Certificates on the Payment Date next
succeeding the date of such Sale and (B) the expenses of the Sale and of
any Proceedings in connection therewith which are reimbursable to it,
without being required to produce the Bonds in order to complete any such
Sale or in order for the net Sale price to be credited against such Bonds,
and any property so acquired by the Indenture Trustee shall be held and
dealt with by it in accordance with the provisions of this Indenture;
(3) the Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance, prepared by the Issuer and satisfactory to the
Indenture Trustee, transferring its interest in any portion of the Trust
Estate in connection with a Sale thereof;
(4) the Indenture Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Issuer to transfer and convey its interest in
any portion of the Trust Estate in connection with a Sale thereof, and to
take all action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any monies.
Section 5.16 Action on Bonds. The Indenture Trustee's right to seek and
recover judgment on the Bonds or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Bondholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.04(b) hereof.
Section 5.17 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from the Indenture Trustee to do so, the Issuer in
its capacity as holder of the Mortgage Loans, shall take all such lawful action
as the Indenture Trustee may request to cause the Issuer to compel or secure the
performance and observance by the Seller and the Master Servicer, as applicable,
of each of their obligations to the Issuer under or in connection with the
Mortgage Loan Sale and Contribution Agreement 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 Sale and
Contribution Agreement and the Servicing Agreement to the extent and in the
manner directed by the Indenture Trustee as pledgee of the
36
Mortgage Loans, including the transmission of notices of default on the part of
the Seller or the Master Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Master Servicer of each of their obligations under the Mortgage
Loan Sale and Contribution Agreement 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) of the Holders of 66-2/3% of
the Bond Principal Balances of the Bonds (for which purpose the Class A-IO Bonds
will be deemed to have a Bond Principal Balance equal to 5% of the aggregate
Bond Principal Balance of the other Classes of Bonds), shall exercise all
rights, remedies, powers, privileges and claims of the Issuer against the Seller
or the Master Servicer under or in connection with the Mortgage Loan Sale and
Contribution Agreement and the Servicing Agreement, including the right or power
to take any action to compel or secure performance or observance by the Seller
or the Master Servicer, as the case may be, of each of their obligations to the
Issuer thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Mortgage Loan Sale and Contribution Agreement 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
38
believe that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
(h) The Indenture Trustee shall act in accordance with Sections 6.03 and
6.04 of the Servicing Agreement and shall act as successor to the Master
Servicer or appoint a successor Master Servicer in accordance with Section 6.02
of the Servicing Agreement.
Section 6.02 Rights of Indenture Trustee. (a) The Indenture Trustee may
rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Indenture Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
Opinion of Counsel with respect to legal matters relating to this Indenture and
the Bonds shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) For the limited purpose of effecting any action to be undertaken by
the Indenture Trustee, but not specifically as a duty of the Indenture Trustee
in the Indenture, the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder, either directly or by or through
agents, attorneys, custodians or nominees appointed with due care, and shall not
be responsible for any willful misconduct or negligence on the part of any
agent, attorney, custodian or nominee so appointed.
Section 6.03 Individual Rights of Indenture Trustee. The Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of Bonds
and may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Indenture Trustee, subject to the requirements of the
Trust Indenture Act. Any Bond Registrar, co-registrar or co-paying agent may do
the same with like rights. However, the Indenture Trustee must comply with
Sections 6.11 and 6.12 hereof.
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Section 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Bonds, it shall not be accountable for the
Issuer's use of the proceeds from the Bonds, and it shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Bonds or in the Bonds other than the Indenture
Trustee's certificate of authentication.
Section 6.05 Notice of Event of Default. Subject to Section 5.01, the
Indenture Trustee shall promptly mail to each Bondholder notice of the Event of
Default after it is known to a Responsible Officer of the Indenture Trustee,
unless such Event of Default shall have been waived or cured. Except in the case
of an Event of Default in payment of principal of or interest on any Bond, the
Indenture Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Bondholders.
Section 6.06 Reports by Indenture Trustee to Holders and Tax
Administration. The Indenture Trustee shall deliver to each Bondholder such
information as may be required to enable such holder to prepare its federal and
state income tax returns.
The Indenture Trustee shall prepare and file (or cause to be prepared and
filed), on behalf of the Owner Trustee, all tax returns (if any) and information
reports, tax elections and such annual or other reports of the Issuer as are
necessary for preparation of tax returns and information reports as provided in
Section 5.03 of the Trust Agreement, including without limitation Form 1099. All
tax returns and information reports shall be signed by the Owner Trustee as
provided in Section 5.03 of the Trust Agreement.
Section 6.07 Compensation and Indemnity. The Issuer shall pay to the
Indenture Trustee on each Payment Date reasonable compensation for its services.
The amount of the Indenture Trustee Fee shall be paid by the Master Servicer to
the Indenture Trustee on each Payment Date pursuant to Section 3.07(a)(x) of the
Servicing Agreement and all amounts owing to the Indenture Trustee hereunder
(including amounts owing from the Issuer for indemnification and otherwise) in
excess of such amount shall be paid solely as provided in Section 3.05(d)(v) and
Section 5.04(b) hereof. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to
compensation for its services. Such expenses shall include reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Issuer shall indemnify the
Indenture Trustee against any and all loss, liability or expense (including
attorneys' fees) incurred by it in connection with the administration of this
Trust and the performance of its duties hereunder. The Indenture Trustee shall
notify the Issuer promptly of any claim for which it may seek indemnity. Failure
by the Indenture Trustee to so notify the Issuer shall not relieve the Issuer of
its obligations hereunder. The Issuer shall defend any such claim, and the
Indenture Trustee may have separate counsel and the Issuer shall pay the fees
and expenses of such counsel. The Issuer is not obligated to reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
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The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section 6.07 shall survive the discharge of this Indenture and the termination
or resignation of the Indenture Trustee. When the Indenture Trustee incurs
expenses after the occurrence of an Event of Default with respect to the Issuer,
the expenses are intended to constitute expenses of administration under Title
11 of the United States Code or any other applicable federal or state
bankruptcy, insolvency or similar law.
Section 6.08 Replacement of Indenture Trustee. No resignation or removal
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee may
resign at any time by so notifying the Issuer. The Holders of a majority of Bond
Principal Balances of the Bonds (for which purpose the Class A-IO Bonds will be
deemed to have a Bond Principal Balance equal to 5% of the aggregate Bond
Principal Balance of the other Classes of 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 (for which purpose the Class A-IO Bonds will be deemed to have a Bond
Principal Balance equal to 5% of the aggregate Bond Principal Balance of the
other Classes of 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 and notice to the
Bondholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.08 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;
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(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(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;
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(ii) The Indenture Trustee has the power and authority to
execute and deliver this Indenture and to carry out its terms; and the
execution, delivery and performance of this Indenture have been duly
authorized by the Indenture Trustee by all necessary corporate action;
(iii) The consummation of the transactions contemplated by
this Indenture and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default 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 TIAss.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 4.07 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. (a) If required by TIA ss.
313(a), within 60 days after each December 27 beginning with December 27, 2003,
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).
(b) A copy of each report at the time of its mailing to Bondholders shall
be filed by the Indenture Trustee with the Commission via XXXXX and each stock
exchange, if any, on which the Bonds are listed. The Issuer shall notify the
Indenture Trustee if and when the Bonds are listed on any stock exchange.
Section 7.05 Statements to Bondholders. (a) With respect to each Payment
Date, the Indenture Trustee shall make available via the Indenture Trustee's
website xxxxx://xxx.xxxxxxxxxxxxxx.xx.xxx/xxxx or deliver at the recipient's
option to each Bondholder and each Certificateholder, the Depositor, the Owner
Trustee, the Certificate Paying Agent and each Rating Agency, a statement
setting forth the following information as to the Bonds, to the extent
applicable:
(i) the aggregate amount of collections with respect to the
Mortgage Loans;
(ii) the Available Funds and Net Monthly Excess Cash Flow
payable to each Class of Bondholders for such Payment Date, 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 A-1 Bonds and Class M Bonds applied to reduce the Bond Principal
Balance thereof, and (b) the aggregate amount included therein
representing Principal Prepayments;
(iv) [reserved];
(v) the amount of such distribution to Holders of each Class
of Bonds allocable to interest;
(vi) the amount of such distribution to the Certificates;
(vii) if the distribution to the Holders of any Class of Bonds
is less than the full amount that would be distributable to such Holders
if there were sufficient funds available therefor, the amount of the
shortfall;
(viii) the number and the aggregate Stated Principal Balance
of the Mortgage Loans as of the end of the related Due Period;
(ix) the aggregate Bond Principal Balance or Notional Amount
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
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an actual distribution of principal and the aggregate Bond Principal
Balance of all of the Class A-1 Bonds and Class M Bonds after giving
effect to the distribution of principal on such Payment Date;
(x) the number and aggregate Stated Principal Balances of
Mortgage Loans (a) as to which the Monthly Payment is delinquent for 31-60
days, 61-90 days, 91 or more days, respectively, (b) in foreclosure and
(c) that have become REO Property, in each case as of the end of the
preceding calendar month;
(xi) [reserved];
(xii) the Overcollateralization Increase Amount,
Overcollateralization Release Amount, Overcollateralization Target Amount
and Overcollateralized Amount, if any, in each case as the end of the
related Payment Date;
(xiii) the amount of any Advances and Compensating Interest
payments;
(xiv) the aggregate Realized Losses with respect to the
related Payment Date and cumulative Realized Losses since the Closing
Date;
(xv) the number and aggregate Stated Principal Balance of
Mortgage Loans repurchased pursuant to the Mortgage Loan Sale and
Contribution Agreement for the related Payment Date and cumulatively since
the Closing Date;
(xvi) the book value of any REO Property;
(xvii) the amount of any Prepayment Interest Shortfalls or
Relief Act Shortfalls for such Payment Date;
(xviii) 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; and
(xix) the amount of any prepayment charges on Principal
Prepayments paid to the Certificateholders.
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 in its preparation of its Statement to Bondholders.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
Section 8.02 Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Indenture Trustee to establish and maintain, in the name
of the Indenture Trustee, for the benefit of the Bondholders, the Payment
Account as provided in Section 3.01 hereof.
(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 the
Indenture Trustee Fee for such Payment Date 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.
(e) 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), 5.04(b), 6.07 or 8.02(c)
hereunder or (iii) out of Available Funds.
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Section 8.03 Officer's Certificate. The Indenture Trustee shall receive at
least seven Business Days' notice when requested by the Issuer to take any
action pursuant to Section 8.05(a) hereof, accompanied by copies of any
instruments to be executed, and the Indenture Trustee shall also require, as a
condition to such action, an Officer's Certificate, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with.
Section 8.04 Termination Upon Distribution to Bondholders. This Indenture
and the respective obligations and responsibilities of the Issuer and the
Indenture Trustee created hereby shall terminate upon the distribution to
Bondholders, the Certificate Paying Agent on behalf of the Certificateholders
and the Indenture Trustee of all amounts required to be distributed pursuant to
Article III; provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Section 8.05 Release of Trust Estate. (a) Subject to the payment of its
fees and expenses, the Indenture Trustee may, and when required by the
provisions of this Indenture shall, execute instruments to release property from
the lien of this Indenture, or convey the Indenture Trustee's interest in the
same, in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture, including for the purposes of any repurchase by
the Master Servicer of a Mortgage Loan pursuant to Section 3.18 of the Servicing
Agreement. No party relying upon an instrument executed by the Indenture Trustee
as provided in Article VIII hereunder shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent,
or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as (i) there are no Bonds
Outstanding and (ii) all sums due to the Indenture Trustee pursuant to this
Indenture have been paid, release any remaining portion of the Trust Estate that
secured the Bonds from the lien of this Indenture.
(c) The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.05 only upon receipt of a request from the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel stating
that all applicable requirements have been satisfied.
Section 8.06 Surrender of Bonds Upon Final Payment. By acceptance of any
Xxxx, the Holder thereof agrees to surrender such Xxxx to the Indenture Trustee
promptly, prior to such Bondholder's receipt of the final payment thereon.
Section 8.07 Optional Redemption of the Bonds. (a) On or after the Payment
Date in January 2006, the Majority Certificateholder shall have the option to
redeem the Bonds, other than the Class A-IO 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 aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date and (ii) the Payment Date
in July 2013. The aggregate redemption price for the Bonds will be equal to the
unpaid Bond Principal
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Balance of the Bonds as of the Payment Date on which the proposed redemption
will take place in accordance with the foregoing, together with accrued and
unpaid interest thereon at the applicable Bond Interest Rate through such
Payment Date (including any related Unpaid Interest Shortfall or Basis Risk
Shortfall Carry-Forward Amount), plus an amount sufficient to pay in full all
amounts owing to the Indenture Trustee under this Indenture (which amounts shall
be specified in writing upon request of the Issuer by the Indenture Trustee).
(b) In order to exercise the foregoing option, the Issuer shall provide
written notice of its exercise of such option to the Indenture Trustee, the
Owner Trustee and the Master Servicer at least 15 days prior to its exercise.
Following receipt of the notice, the Indenture Trustee shall provide notice to
the Bondholders of the final payment on the Bonds. In addition, the Issuer
shall, not less than one Business Day prior to the proposed Payment Date on
which such redemption is to be made, deposit the aggregate redemption price
specified in (a) above with the Indenture Trustee, who shall deposit the
aggregate redemption price into the Payment Account and shall, on the Payment
Date after receipt of the funds, apply such funds to make final payments of
principal and interest on the Bonds in accordance with Section 3.05(b) and (c)
hereof and payment in full to the Indenture Trustee, and this Indenture shall be
discharged subject to the provisions of Section 4.10 hereof. If for any reason
the amount deposited by the Issuer is not sufficient to make such redemption or
such redemption cannot be completed for any reason, the amount so deposited by
the Issuer with the Indenture Trustee shall be immediately returned to the
Issuer in full and shall not be used for any other purpose or be deemed to be
part of the Trust Estate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Bondholders. (a)
Without the consent of the Holders of any Bonds but with the 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 supplement and to the effect that (i) such
indenture supplement is permitted hereunder and (ii)
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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 but
with the 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 (for which purpose the Class A-IO Bonds will be deemed to have a Bond
Principal Balance equal to 5% of the aggregate Bond Principal Balance of the
other Classes 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 (or equivalent percentage for the Class A-IO Bonds), the consent
of the Holders of which is required for any such supplemental indenture,
or the consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
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(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding" or modify or alter the exception in
the definition of the term "Holder";
(iv) reduce the percentage of the Bond Principal Balances of
the Bonds (or equivalent percentage for the Class A-IO Bonds) required to
direct the Indenture Trustee to direct the Issuer to sell or liquidate the
Trust Estate pursuant to Section 5.04 hereof;
(v) modify any provision of this Section 9.02 except to
increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or the Basic Documents cannot be
modified or waived without the consent of the Holder of each Bond affected
thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Bond on any Payment Date (including the
calculation of any of the individual components of such calculation); or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at any time subject
hereto or deprive the Holder of any Bond of the security provided by the
lien of this Indenture;
and provided, further, that such action shall not, as evidenced by an Opinion of
Counsel, cause the Issuer (if 100% of the Certificates are not owned by IMH
Assets Corp.) to be subject to an entity level tax.
Any such action shall not adversely affect in any material respect the
interest of any Holder (other than a Holder who shall consent to such
supplemental indenture) as evidenced by an Opinion of Counsel (provided by the
Person requesting such supplemental indenture) delivered to the Indenture
Trustee.
It shall not be necessary for any Act of Bondholders under this Section
9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section 9.02, the Indenture Trustee
shall mail to the Holders of the Bonds to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 9.03 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be
53
entitled to receive, and subject to Sections 6.01 and 6.02 hereof, shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or 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.
54
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:
(i) 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;
(ii) 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;
(iii) 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;
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with; and
(v) 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
55
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 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.
56
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.
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
57
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 to the Issuer addressed to: Impac CMB Trust
Series 2003-9F, in care of Wilmington Trust Company, Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration, or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer. The Issuer
shall promptly transmit any notice received by it from the Bondholders to
the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, mailed first-class
postage prepaid, 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.
58
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.
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
59
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.
60
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 2003-9F, as
Issuer
Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Financial Services Officer
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Indenture Trustee
By /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Associate
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On this 30th day of July 2003, before me personally appeared Xxxxx X.
Xxxxxxx to me known, who being by me duly sworn, did depose and say, that he is
an Associate of the Indenture Trustee, one of the corporations described in and
which executed the above instrument; and that he signed his name thereto by like
order.
Notary Public
-----------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On this 30th day of July 2003, before me personally appeared Xxxxxxx Xxxxx
to me known, who being by me duly sworn, did depose and say, that he is an
Associate of the Indenture Trustee, one of the corporations described in and
which executed the above instrument; and that he signed his name thereto by like
order.
Notary Public
----------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF DELAWARE )
) ss.:
COUNTY OF NEW CASTLE )
On this 30th day of July, 2003, before me personally appeared Xxxxxxxx X.
Xxxxxxxx to me known, who being by me duly sworn, did depose and say, that she
resides at Wilmington Trust Company and is a Financial Services Officer of the
Owner 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]
EXHIBIT A-1
FORM OF CLASS [A-1][A-IO] BONDS
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE HOLDER OF THIS BOND OR BENEFICIAL OWNER OF ANY INTEREST HEREIN WILL BE
DEEMED TO REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION 4.15 OF
THE INDENTURE.
THIS BOND IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF
PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST AS PROVIDED IN THE INDENTURE
REFERRED TO BELOW. THE ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON
THIS BOND.
[PRINCIPAL OF THIS BOND IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS BOND AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.]
-A-1-1-
IMPAC CMB TRUST SERIES 2003-9F
COLLATERALIZED ASSET-BACKED BONDS
CLASS [A-1][A-IO]
AGGREGATE [BOND PRINCIPAL BOND INTEREST
BALANCE][NOTIONAL AMOUNT]: RATE: ______%
$____________________
INITIAL [BOND PRINCIPAL BOND NO. ___
BALANCE][NOTIONAL AMOUNT] OF THIS BOND: $________
PERCENTAGE INTEREST: _______% CUSIP NO. _________
Impac CMB Trust Series 2003-9F (the "Issuer"), a Delaware statutory trust,
for value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of _____________________________ ($____________) 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 August 2003 and ending on or before the Payment Date occurring in
[July 2033][January 2006] (the "Final Scheduled Payment Date") and to pay
interest on the [Bond Principal Balance][Notional Amount] 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 2003-9F (the "Bonds"), issued under an Indenture
dated as of July 30, 2003 (the "Indenture"), between the Issuer and Deutsche
Bank National Trust Company, 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 "Notional Amount" of this Bond, immediately prior to
the related Payment Date, for the August 2003 Payment Date through the July 2004
Payment Date is $4,885,000, for the August 2004 Payment Date through the January
2005 Payment Date, $4,299,000, for the February 2005 Payment Date through the
July 2005 Payment Date, $3,127,000, for the August 2005 Payment Date through the
January 2006 Payment Date, $2,345 for each Payment Date thereafter, $0.]
-A-1-2-
The [principal of, and] interest on, this Bond [are][is] due and payable
as described in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. All payments made by the Issuer with respect to this Bond shall
be equal to this Bond's pro rata share of the aggregate payments on all Class
[A-1][A-IO] Bonds as described above, and shall be applied as [between] interest
[and principal] as provided in the Indenture. [In addition, any payments
received by the Indenture Trustee in respect of the Seller Guarantee shall be
paid to the Holders of this Bond pursuant to Section 3.28 of 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.
On or after the Payment Date in January 2006, the Bonds, other than the
Class A-IO 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 20% Clean-Up Call Date and (ii) the Payment Date in July 2013.
The Issuer shall not be liable upon the indebtedness evidenced by the
Bonds except to the extent of amounts available from the Trust Estate which
constitutes security for the payment of the Bonds. The assets included in the
Trust Estate will be the sole source of payments on the Class A Bonds, and each
Holder hereof, by its acceptance of this Bond, agrees that (i) such Bond will be
limited in right of payment to amounts available from the Trust Estate as
provided in the Indenture and (ii) such Holder shall have no recourse to the
Issuer, the Owner Trustee, the Indenture Trustee, IMH Assets Corp., Impac
Mortgage Holdings, Inc., the Master Servicer or any of their respective
affiliates, or to the assets of any of the foregoing entities, except the assets
of the Issuer pledged to secure the Class A Bonds pursuant to the Indenture and
the rights conveyed to the Issuer under the Indenture.
Any payment of principal or interest payable on this Bond which is
punctually paid on the applicable Payment Date shall be paid to the Person in
whose name such Xxxx is registered at the close of business on the Record Date
for such Payment Date by check mailed to such person's address as it appears in
the Bond Register on such Record Date, except for the final installment of
principal and interest payable with respect to such Bond, which shall be payable
as provided below. Notwithstanding the foregoing, upon written request with
appropriate instructions by the Holder of this Bond delivered to the Indenture
Trustee at least five Business Days prior to the Record Date, any payment of
principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Xxxxxx. All reductions in the principal amount of a Bond (or
one or more Predecessor Bonds) effected by payments of principal made on any
Payment Date shall be binding upon all Holders of this Bond and of any bond
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, whether or not such payment is noted on such Bond. The final
payment of this Bond shall be payable upon presentation and surrender thereof on
or after the Payment Date thereof at the Corporate Trust Office or the office or
agency of the Issuer maintained by it for such purpose pursuant to Section 3.02
of the Indenture.
-A-1-3-
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][on the Notional
Amount] 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 as a result of the Issuer, the Seller, the Depositor, any
Underwriter, the Owner Trustee, the Indenture Trustee, the Master Servicer, any
Subservicer, any other servicer, any administrator, any provider of credit
support, any owner of the Certificates, or any of their Affiliates being a
"Party in Interest" (within the meaning of ERISA) or Disqualified Person (within
the meaning of the Code) with respect to such Holder or Beneficial Owner that is
a Plan and (B) the Bonds are rated investment grade or better and such person
believes that the Bonds are properly treated as indebtedness without substantial
equity features for purposes of the DOL Regulations, and agrees to so treat the
Bonds. Alternatively, regardless of the rating of the 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, 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, the Owner Trustee, the Indenture Trustee, the Master Servicer or any
successor servicer to any obligation in addition to those undertaken in 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
-A-1-4-
of any authorized denominations and of a like aggregate initial [Bond Principal
Balance][Notional Amount], 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][Notional
Amount] of Bonds of different authorized denominations, as requested by the
Holder surrendering same.
Unless the Certificate of Authentication herein 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: July 30, 2003
IMPAC CMB TRUST SERIES 2003-9F
BY: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:
-------------------------------
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1][A-IO] Bonds referred to in the within-mentioned
Indenture.
DEUTSCHE BANK NATIONAL TRUST COMPANY, 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 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.
THE HOLDER OF THIS BOND OR BENEFICIAL OWNER OF ANY INTEREST HEREIN WILL BE
DEEMED TO REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION 4.15 OF
THE INDENTURE.
THIS BOND IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF
PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE
REFERRED TO BELOW. THE ISSUER IS NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON
THIS BOND.
PRINCIPAL OF THIS BOND IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS BOND AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
A-2-1
IMPAC CMB TRUST SERIES 2003-9F
COLLATERALIZED ASSET-BACKED BONDS
CLASS M
AGGREGATE BOND PRINCIPAL BOND INTEREST
BALANCE: RATE: ______%
$______________________
INITIAL BOND PRINCIPAL BOND NO. ___
BALANCE OF THIS BOND:
$___________________
PERCENTAGE INTEREST: _______% CUSIP NO. ____________
Impac CMB Trust Series 2003-9F (the "Issuer"), a Delaware statutory trust,
for value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ______________________________ ($___________) 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 August 2003 and ending on or before the Payment Date occurring in
July 2033 (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 2003-9F (the "Bonds"), issued under an Indenture
dated as of July 30, 2003 (the "Indenture"), between the Issuer and Deutsche
Bank National Trust Company, 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 Xxxx's pro rata share of the aggregate payments on all
A-2-2
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.
On or after the Payment Date in January 2006, the Bonds, other than the
Class A-IO 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 20% Clean-Up Call Date and (ii) the Payment Date in July 2013.
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
A-2-3
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 as a result of the Issuer, the Seller, the Depositor, the
Underwriters, the Owner Trustee, the Indenture Trustee, the Master Servicer, any
Subservicer, any other servicer, any administrator, any provider of credit
support, any owner of the Certificates, or any of their Affiliates being a
"Party in Interest" (within the meaning of ERISA) or Disqualified Person (within
the meaning of the Code) with respect to such Holder or Beneficial Owner that is
a Plan and (B) the Bonds are rated investment grade or better and such person
believes that the Bonds are properly treated as indebtedness without substantial
equity features for purposes of the DOL Regulations, and agrees to so treat the
Bonds. Alternatively, regardless of the rating of the 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, 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, the Owner Trustee, the Indenture Trustee, the Master Servicer or any
successor servicer to any obligation in addition to those undertaken in 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.
A-2-4
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-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: July 30, 2003
IMPAC CMB TRUST SERIES 2003-9F
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.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee
By:
-----------------------------------------
Authorized Signatory
A-2-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the Bond, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- __________ Custodian
______________________________
(Cust) (Minor)
under Uniform Gifts to Minor Act
_____________________
(State)
Additional abbreviations may also be used though not in the above list.
A-2-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
-----------------------------------------
-----------------------------------------
-----------------------------------------
(Please print or typewrite name and address, including zip code, of assignee)
_____________________________________________________________________________
the within Bond and all rights thereunder, and hereby irrevocably constitutes
and appoints ________________________ attorney to transfer said Xxxx on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:__________________ _______________________________________
Signature Guaranteed by________________________________________________________
NOTICE: The signature(s) to this assignment must correspond with the name
as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatsoever. Signature(s) must be
guaranteed by a commercial bank or by a member firm of the New York Stock
Exchange or another national securities exchange. Notarized or witnessed
signatures are not acceptable.
A-2-8
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(provided upon request)
B-1
EXHIBIT C
FORM OF INITIAL CERTIFICATION
_____________, 200_
[Issuer]
[Master Servicer]
Attention: Impac CMB Trust Series 2003-9F
Re: Indenture dated as of July 30, 2003, between Impac CMB Trust
Series 2003-9F and Deutsche Bank National Trust Company
Ladies and Gentlemen:
In accordance with Section 2.03(a) of the above-captioned Indenture,
and Section 2.1(b)(i)-(v) of the Mortgage Loan Sale and Contribution Agreement,
dated as of July 30, 2003 between Impac Mortgage Holdings, Inc. (formerly known
as Imperial Credit Mortgage Holdings, Inc.) and Impac Funding Corporation
(formerly known as ICI Funding Corporation) (the "MLSCA"; and together with the
Indenture, the "Agreements"), the undersigned, as Indenture Trustee, hereby
certifies that as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or listed on the exception report
attached hereto) it has reviewed the Mortgage File and the Mortgage Loan
Schedule and has determined that: (i) all documents required to be included in
the Mortgage File are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; and
(iii) based on examination by it, and only as to such documents, the information
set forth in items (iii) and (v) of the definition or description of "Mortgage
Loan Schedule" is correct.
The Indenture Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the above-referenced Agreements. The Indenture Trustee makes no
representation that any documents specified in clause (v) of Section 2.1 (b) of
the MLSCA should be included in any Mortgage File. The Indenture Trustee makes
no representations as to and shall not be responsible to verify: (i) the
validity, legality, sufficiency, enforceability, due authorization,
recordability or genuineness of any of the documents contained in each Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan, or (iii) the existence of any assumption, modification, written
assurance or substitution agreement with respect to any Mortgage File if no such
documents appear in the Mortgage File delivered to the Indenture Trustee.
C-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Indenture.
DEUTSCHE BANK NATIONAL
TRUST COMPANY,
as Indenture Trustee
By:
-----------------------------------
Name:
Title:
C-1
EXHIBIT D
FORM OF FINAL CERTIFICATION
___________ , 200__
[Issuer]
[Master Servicer]
Attention: Impac CMB Trust Series 2003-9F
Re: Indenture, dated as of July 30, 2003, between Impac CMB Trust
Series 2003-9F and Deutsche Bank National Trust Company
Ladies and Gentlemen:
In accordance with Section 2.03(b) of the above-captioned Indenture,
and Section 2.1(b) of the Mortgage Loan Sale and Contribution Agreement, dated
as of July 30, 2003, between Impac Mortgage Holdings, Inc. (formerly known as
Imperial Credit Mortgage Holdings, Inc.) and Impac Funding Corporation (formerly
known as ICI Funding Corporation) (the "MLSCA"; and together with the Indenture,
the "Agreements"), the undersigned, as Indenture Trustee, hereby certifies that
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the exception report attached hereto) it
has received the documents set forth in Section 2.1(b) of the MLSCA.
The Indenture Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Agreements. The Indenture Trustee makes no representation that
any documents specified in clause (v) of Section 2.1 (b) should be included in
any Mortgage File. The Indenture Trustee makes no representations as to and
shall not be responsible to verify: (i) the validity, legality, sufficiency,
enforceability, due authorization, recordability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance or substitution agreement with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the Indenture Trustee.
D-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Indenture.
DEUTSCHE BANK NATIONAL
TRUST COMPANY,
as Indenture Trustee
By:
Name:
Title:
D-2
EXHIBIT E
SELLER GUARANTEE
E-1
EXHIBIT F
SPECIAL CERTIFICATE CAP CONTRACT
F-1
APPENDIX A
DEFINITIONS
Accrual Period: With respect to the Class A-1 Bonds and Class M
Bonds and any Payment Date, the period from the preceding Payment Date (or in
the case of the first Payment Date, from the Closing Date) through the day
preceding such Payment Date. With respect to each Class A-IO Bonds and any
Payment Date, the calendar month preceding the month of such Payment Date.
Accrued Bond Interest: With respect to any Payment Date and each
Class of Bonds, interest accrued during the related Accrual Period on the Bond
Principal Balance or Notional Amount thereof at the then-applicable Bond
Interest Rate on the related Bond Principal Balance or Notional Amount thereof
immediately prior to such Payment Date, less such Bonds' Unpaid Interest
Shortfall for such Payment Date, plus any Accrued Bond Interest remaining unpaid
from any prior Payment Date with interest thereon at the related Bond Interest
Rate. Accrued Bond Interest for each Class of Bonds shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
Advance: As to any Mortgage Loan, any advance made by the Master
Servicer pursuant to Section 4.04 of the Servicing Agreement or by a Subservicer
in respect of delinquent Monthly Payments of principal and interest pursuant to
the related Subservicing Agreement.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise and "controlling" and "controlled" shall have meanings
correlative to the foregoing.
Allocated Realized Loss Amount: With respect to the Class M Bonds
and any Payment Date, an amount equal to the sum of any Realized Loss allocated
to the Class M Bonds on that Payment Date and any Allocated Realized Loss Amount
for that Class remaining unpaid from the previous Payment Date.
Appraised Value: The appraised value of a Mortgaged Property based
upon the lesser of (i) the appraisal made at the time of the origination of the
related Mortgage Loan, or (ii) the sales price of such Mortgaged Property at
such time of origination. With respect to a Mortgage Loan the proceeds of which
were used to refinance an existing mortgage loan, the appraised value of the
Mortgaged Property based upon the appraisal obtained at the time of refinancing.
Assignment of Mortgage: An assignment of Mortgage, notice of
transfer or equivalent instrument, in recordable form, which is sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to reflect of record the sale of the Mortgage, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering Mortgages secured by Mortgaged Properties located in the
same county, if permitted by law.
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Authorized Newspaper: A newspaper of general circulation in the
Borough of Manhattan, The City of New York, printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays.
Authorized Officer: With respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter).
Available Funds: With respect to any Payment Date, the sum of the
following, in each case with respect to the Mortgage Loans:
(i) each previously undistributed Monthly Payment due after
the respective Cut-Off Dates received on or prior to the related
Determination Date or advanced prior to such Payment Date (other
than Monthly Payments due after the related Due Period, which shall
be treated as if received during the Due Period they were due and
other than Monthly Payments with respect to which the Master
Servicer has made an unreimbursed Advance) on each outstanding
Mortgage Loan (less the related Master Servicing Fees, any
Subservicing Fees under any Subservicing Agreement and any fees or
penalties retained by the Master Servicer or any Subservicer, the
fees of the Owner Trustee and the Indenture Trustee and any amounts
in respect of the premium payable to Radian under the Radian
Lender-Paid PMI Policies);
(ii) all proceeds of any Mortgage Loan repurchased during the
related Prepayment Period (or deemed to have been so repurchased in
accordance with the Servicing Agreement) pursuant to the Servicing
Agreement and the amount of any shortfall deposited in the
Collection Account in connection with the substitution of a Deleted
Mortgage Loan pursuant to the Mortgage Loan Sale and Contribution
Agreement during the related Prepayment Period;
(iii) all other unscheduled collections (including, without
limitation, Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related Prepayment
Period to the extent applied by the Master Servicer as recoveries of
principal or interest of the related Mortgage Loan pursuant to the
Servicing Agreement;
(iv) any amounts received from the Seller in respect of the
Seller Guarantee; and
(v) any (i) Compensating Interest payments and (ii)
Foreclosure Profits, to the extent not payable to the Subservicers;
minus
(vi) expenses incurred by and reimbursable to the Master
Servicer or the Depositor pursuant to the Servicing Agreement or
otherwise, or in connection
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with enforcing any repurchase, substitution or indemnification
obligation of the Seller (other than an Affiliate of the Depositor)
in respect of a Mortgage Loan;
(vii) amounts expended by the Master Servicer (a) pursuant to
the Servicing Agreement in good faith in connection with the
restoration of property related to a Mortgage Loan damaged by an
Uninsured Cause, and (b) in connection with the liquidation of a
Mortgage Loan or disposition of an REO Property related to a
Mortgage Loan to the extent not otherwise reimbursed to the Master
Servicer pursuant to the Servicing Agreement;
(viii) if the Bonds have been declared due and payable
following an Event of Default on such Payment Date, any amounts owed
to the Indenture Trustee by the Issuer pursuant to Section 6.07 of
the Indenture; and
(ix) any other amounts withdrawn from the Collection Account
by the Master Servicer pursuant to Section 3.07(a)(ii) through (xv)
of the Servicing Agreement, not described above in clauses (vi) and
(vii) above.
Available Funds Rate: On any Payment Date, the per annum rate equal
to the product of:
(i) (A) the product of:
(1) the weighted average of the Net Mortgage Rates on
the Mortgage Loans included in the trust as of the end
of the prior Due Period, weighted on the basis of the
Stated Principal Balances thereof as of the end of the
prior Due Period; and
(2) a fraction equal to
(x) the aggregate Stated Principal Balance of the
Mortgage Loans as of the end of the prior Due
Period divided by
(y) the aggregate Bond Principal Balance of the
Bonds immediately prior to such Payment Date,
minus
(B) the product of:
(1) the Bond Interest Rate of the Class A-IO Bonds; and
(2) a fraction equal to
(x) the applicable Notional Amount divided by
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(y) the aggregate Bond Principal Balance of the
Bonds immediately prior to such Payment Date; and
(ii) a fraction equal to (x) 30 divided by (y) the number of
days in the related Accrual Period.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Basic Documents: The Trust Agreement, the Certificate of Trust, the
Indenture, the Servicing Agreement, the Mortgage Loan Sale and Contribution
Agreement, the Seller Guarantee, the Special Certificate Cap Contract and the
other documents and certificates delivered in connection with any of the above.
Basic Principal Distribution Amount: With respect to any Payment
Date, the lesser of (a) the excess of (i) the Available Funds for such Payment
Date over (ii) the aggregate amount of Accrued Bond Interest for the Bonds for
such Payment Date and (b) the excess of (i) the Principal Remittance Amount for
such Payment Date over (ii) the Overcollateralization Release Amount, if any,
for such Payment Date.
Basis Risk Shortfall: With respect to the Class A-1 Bonds and Class
M Bonds, on each Payment Date where clause (iii) of the definition of "Bond
Interest Rate" is less than clauses (i) or (ii) of the definition of "Bond
Interest Rate", the excess, if any, of (x) the aggregate Accrued Bond Interest
thereon for such Payment Date calculated pursuant to the lesser of clause (i) or
(ii) of the definition of Bond Interest Rate over (y) interest accrued on the
related Mortgage Loans at the related Available Funds Rate.
Basis Risk Shortfall Carry-Forward Amount: With respect to the Class
A-1 Bonds and Class M Bonds and any Payment Date, as determined separately for
each Class of Bonds, an amount equal to the aggregate amount of Basis Risk
Shortfall for such Bonds on such Payment Date, plus any unpaid Basis Risk
Shortfall for such Class of Bonds from prior Payment Dates, plus interest
thereon at the Bond Interest Rate for such Payment Date, to the extent
previously unreimbursed by the Derivative Contract or by Net Monthly Excess Cash
Flow.
Beneficial Owner: With respect to any Bond, the Person who is the
beneficial owner of such Xxxx as reflected on the books of the Depository or on
the books of a Person maintaining an account with such Depository (directly as a
Depository Participant or indirectly through a Depository Participant, in
accordance with the rules of such Depository).
Bond Interest Rate: With respect to each Payment Date and the Class
A-IO Bonds, (i) for the August 2003 through January 2006 Payment Dates, 6.00%
per annum, and (ii) for each Payment Date after the January 2006 Payment Date,
0.000% per annum. With respect to each Payment Date and the Class A-1 Bonds and
Class M Bonds, a floating rate equal to the least of (i) One-Month LIBOR plus
the related Bond Margin, (ii) the Maximum Bond Interest Rate and (iii) the
related Available Funds Rate with respect to such Payment Date.
Bond Margin: With respect to the Class A-1 Bonds and any Payment
Date, 0.40% per annum multiplied by the Rate Factor. With respect to the Class M
Bonds and any Payment Date, 0.75% per annum multiplied by the Rate Factor.
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Bond Owner: The Beneficial Owner of a Bond.
Bond Principal Balance: With respect to any Bond, other than the
Class A-IO Bonds, as of any date of determination, the initial Bond Principal
Balance as stated on the face thereof, minus all amounts distributed in respect
of principal with respect to such Bond and, in the case of any Class M Bond, the
aggregate amount of any reductions in the Bond Principal Balance thereof deemed
to have occurred in connection with allocations of Realized Losses on all prior
Payment Dates. With respect to any Class of Bonds, the Bond Principal Balance
thereof shall be equal to the sum of the Bond Principal Balances of all
Outstanding Bonds of such Class.
Bond Register: The register maintained by the Bond Registrar in
which the Bond Registrar shall provide for the registration of Bonds and of
transfers and exchanges of Bonds.
Bond Registrar: The Indenture Trustee, in its capacity as Bond
Registrar, or any successor to the Indenture Trustee in such capacity.
Bondholder or Holder: The Person in whose name a Bond is registered
in the Bond Register, except that, any Bond registered in the name of the
Depositor, the Issuer, the Indenture Trustee, the Seller or the Master Servicer
or any Affiliate of any of them shall be deemed not to be a holder or holders,
nor shall any so owned be considered outstanding, for purposes of giving any
request, demand, authorization, direction, notice, consent or waiver under the
Indenture or the Trust Agreement; provided that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Bonds that a
Responsible Officer of the Indenture Trustee or the Owner Trustee actually knows
to be so owned shall be so disregarded. Owners of Bonds that have been pledged
in good faith may be regarded as Holders if the pledgee establishes to the
satisfaction of the Indenture Trustee or the Owner Trustee the pledgee's right
so to act with respect to such Bonds and that the pledgee is not the Issuer, any
other obligor upon the Bonds or any Affiliate of any of the foregoing Persons.
Bonds: The Class A Bonds and Class M Bonds issued and outstanding at
any time pursuant to the Indenture.
Book-Entry Bonds: Beneficial interests in the Bonds, ownership and
transfers of which shall be made through book entries by the Depository as
described in Section 4.06 of the Indenture.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the City of New York, Delaware or
California or in the city in which the corporate trust office of the Indenture
Trustee is located, is required or authorized by law to be closed.
Cash Liquidation: As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Master Servicer evidenced in a certificate of a Servicing Officer that it has
received all Insurance Proceeds, Liquidation Proceeds and other payments or cash
recoveries which the Master Servicer
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reasonably and in good faith expects to be finally recoverable with respect to
such Mortgage Loan.
Certificate Distribution Account: The account or accounts created
and maintained pursuant to Section 3.10(c) of the Trust Agreement. The
Certificate Distribution Account shall be an Eligible Account.
Certificate Paying Agent: The meaning specified in Section 3.10 of
the Trust Agreement.
Certificate Percentage Interest: With respect to each Certificate,
the Certificate Percentage Interest stated on the face thereof.
Certificate Register: The register maintained by the Certificate
Registrar in which the Certificate Registrar shall provide for the registration
of Certificates and of transfers and exchanges of Certificates.
Certificate Registrar: Initially, the Indenture Trustee, in its
capacity as Certificate Registrar, or any successor to the Indenture Trustee in
such capacity.
Certificate of Trust: The Certificate of Trust filed for the Trust
pursuant to Section 3810(a) of the Statutory Trust Statute.
Certificates or Trust Certificates: The Impac CMB Trust Series
2003-9F Trust Certificates, Series 2003-9F, evidencing the beneficial ownership
interest in the Issuer and executed by the Owner Trustee in substantially the
form set forth in Exhibit A to the Trust Agreement.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register. Owners of Certificates that have been
pledged in good faith may be regarded as Holders if the pledgee establishes to
the satisfaction of the Indenture Trustee or the Owner Trustee, as the case may
be, the pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Issuer, any other obligor upon the Certificates or any
Affiliate of any of the foregoing Persons.
Class: Any of the Class A-1 Bonds, Class A-IO Bonds or Class M
Bonds.
Class A Bonds: The Class A-1 Bonds and Class A-IO Bonds in the form
attached as Exhibit A-1 to the Indenture.
Class M Bonds: The Class M Bonds in the form attached as Exhibit A-2
to the Indenture.
Closing Date: July 30, 2003.
Code: The Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated thereunder.
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Collateral: The meaning specified in the Granting Clause of the
Indenture.
Collection Account: The account or accounts created and maintained
pursuant to Section 3.06(d) of the Servicing Agreement. The Collection Account
shall be an Eligible Account.
Collection Period: With respect to each Payment Date, the calendar
month immediately preceding the month in which such Payment Date occurs.
Commission: The Securities and Exchange Commission.
Compensating Interest: With respect to any Payment Date, the amount
of any Prepayment Interest Shortfalls resulting from prepayments in full during
the preceding calendar month, but only to the extent such Prepayment Interest
Shortfalls do not exceed an amount equal to the lesser of (i) one-twelfth of
0.125% of the aggregate Stated Principal Balance of the Mortgage Loans
immediately preceding such Payment Date and (ii) the sum of the Master Servicing
Fee and Subservicing Fee for such Payment Date.
Corporate Trust Office: With respect to the Indenture Trustee,
Certificate Registrar, Certificate Paying Agent and Paying Agent, the principal
corporate trust office of the Indenture Trustee and Bond Registrar at which at
any particular time its corporate trust business shall be administered, which
office at the date of the execution of this instrument is located at 0000 Xxxx
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attention: IM0309. With respect
to the Owner Trustee, the principal corporate trust office of the Owner Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Trust Agreement
is located at Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Impac CMB Trust Series 2003-9F
(IM0309).
Cut-Off Date: July 1, 2003.
Cut-Off Date Balance: The aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
Cut-Off Date Principal Balance: With respect to any Mortgage Loan,
the unpaid principal balance thereof as of the Cut-Off Date after applying the
principal portion of Monthly Payments due on or before such date, whether or not
received, and without regard to any payments due after such date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction constituting a Deficient Valuation or any reduction that results in a
permanent forgiveness of principal.
Default: Any occurrence which is or with notice or the lapse of time
or both would become an Event of Default.
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Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
Definitive Bonds: The meaning specified in Section 4.06 of the
Indenture.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced
with an Eligible Substitute Mortgage Loan.
Delinquency Percentage: As of the last day of any Due Period and
with respect to the Mortgage Loans, the percentage equivalent of a fraction, the
numerator of which equals the aggregate Principal Balance of the Mortgage Loans
that are 90 or more days delinquent, in foreclosure or converted to REO
Properties as of such last day of such Due Period, and the denominator of which
is the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of such Due Period.
Depositor: IMH Assets Corp., a California corporation, or its
successor in interest.
Depository or Depository Agency: The Depository Trust Company or a
successor appointed by the Indenture Trustee. Any successor to the Depository
shall be an organization registered as a "clearing agency" pursuant to Section
17A of the Exchange Act and the regulations of the Securities and Exchange
Commission thereunder.
Depository Participant: A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
Derivative Contract: The derivative contract between the Seller and
the Derivative Counterparty for the benefit of the Class A-1 Bonds, Class M
Bonds and the Certificates.
Derivative Counterparty: Bear Xxxxxxx Financial Products Inc., an
affiliate of Bear, Xxxxxxx & Co. Inc.
Determination Date: With respect to any Payment Date, the 15th day
of the related month, or if the 15th day of such month is not a Business Day,
the immediately preceding Business Day.
Due Date: With respect to each Mortgage Loan, the day of the month
on which each scheduled Monthly Payment is due.
Due Period: With respect to any Payment Date and the Mortgage Loans,
the period commencing on the second day of the month preceding the month of such
Payment Date (or, with respect to the first Due Period, the day following the
Cut-Off Date) and ending on the first day of the month of such Payment Date.
Eligible Account: An account that is any of the following: (i) a
segregated account maintained with a federal or state chartered depository
institution (A) the short-term
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obligations of which are rated A-1+ or better by Standard & Poor's and P-1 by
Xxxxx'x at the time of any deposit therein or (B) fully insured to the limits
established by the FDIC, provided that any deposits not so insured shall, to the
extent acceptable to each Rating Agency, as evidenced in writing, be maintained
such that (as evidenced by an Opinion of Counsel delivered to the Indenture
Trustee and each Rating Agency) the Indenture Trustee has a claim with respect
to the funds in such account or a perfected first security interest against any
collateral (which shall be limited to Eligible Investments) securing such funds
that is superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained, (ii) a segregated
trust account or accounts maintained with a federal or state chartered
depository institution or trust company subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), which, in either case, has corporate trust powers,
acting in its fiduciary capacity, or (iii) in the case of the Collection Account
or Servicing Account, either (A) a trust account or accounts maintained at the
corporate trust department of the Indenture Trustee or (B) an account or
accounts maintained at the corporate trust department of the Indenture Trustee
or the Subservicer (or an affiliate thereof), as long as their short term debt
obligations are rated P-1 by Xxxxx'x and A-1+ by Standard & Poor's or better and
their long term debt obligations are rated A2 by Xxxxx'x and AA- by Standard &
Poor's or better, (iv) in the case of the Collection Account and the Payment
Account, a trust account or accounts maintained in the corporate trust division
of the Indenture Trustee, or (v) an account or accounts of a depository
institution acceptable to each Rating Agency as evidenced in writing by each
Rating Agency that use of any such account as the Collection Account or the
Payment Account will not reduce the rating assigned to any of the Securities by
such Rating Agency below investment grade.
Eligible Investments: One or more of the following:
(i) direct obligations of, and obligations fully guaranteed
by, the United States of America, the Federal Home Mortgage
Corporation, the Federal National Mortgage Association, the Federal
Home Loan Banks or any agency or instrumentality of the United
States of America the obligations of which are backed by the full
faith and credit of the United States of America;
(ii) (A) demand and time deposits in, certificates of deposit
of, banker's acceptances issued by or federal funds sold by any
depository institution or trust company (including the Indenture
Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of
America or any State thereof and subject to supervision and
examination by federal and/or state authorities, so long as at the
time of such investment or contractual commitment providing for such
investment, such depository institution or trust company has a short
term unsecured debt rating in the highest available rating category
of each of the Rating Agencies and provided that each such
investment has an original maturity of no more than 365 days, and
(B) any other demand or time deposit or deposit which is fully
insured by the FDIC;
(iii) repurchase obligations with a term not to exceed 30 days
with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting
as a principal) rated "A-1+" or
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higher by Standard & Poor's and A2 or higher by Xxxxx'x; provided,
however, that collateral transferred pursuant to such repurchase
obligation must (A) be valued weekly at current market price plus
accrued interest, (B) pursuant to such valuation, equal, at all
times, 105% of the cash transferred by the Indenture Trustee in
exchange for such collateral and (C) be delivered to the Indenture
Trustee or, if the Indenture Trustee is supplying the collateral, an
agent for the Indenture Trustee, in such a manner as to accomplish
perfection of a security interest in the collateral by possession of
certificated securities;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States
of America or any State thereof which has a long term unsecured debt
rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
(v) commercial paper having an original maturity of less than
365 days and issued by an institution having a short term unsecured
debt rating in the highest available rating of each of the Rating
Agencies at the time of such investment;
(vi) a guaranteed investment contract approved by each of the
Rating Agencies and issued by an insurance company or other
corporation having a long term unsecured debt rating in the highest
available rating category of each of the Rating Agencies at the time
of such investment;
(vii) money market funds having ratings in the highest
available long term rating category of each of the Rating Agencies
at the time of such investment; any such money market funds which
provide for demand withdrawals being conclusively deemed to satisfy
any maturity requirement for Eligible Investments set forth in the
Indenture, including money market funds of the Indenture Trustee or
any such funds that are managed or advised by the Indenture Trustee
or any Affiliate thereof; and
(viii) any investment approved in writing by each of the
Rating Agencies.
The Indenture Trustee may purchase from or sell to itself or an affiliate, as
principal or agent, the Eligible Investments listed above.
provided, however, that each such instrument shall be acquired in an arm's
length transaction and no such instrument shall be an Eligible Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations; provided further, however, that each such instrument acquired shall
not be acquired at a price in excess of par.
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Eligible Substitute Mortgage Loan: A Mortgage Loan substituted by
the Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in an Officer's Certificate delivered to the
Indenture Trustee, (i) have an outstanding principal balance, after deduction of
the principal portion of the monthly payment due in the month of substitution
(or in the case of a substitution of more than one Mortgage Loan for a Deleted
Mortgage Loan, an aggregate outstanding principal balance, after such
deduction), not in excess of the outstanding principal balance of the Deleted
Mortgage Loan (the amount of any shortfall to be deposited by the Seller in the
Collection Account in the month of substitution); (ii) comply with each
non-statistical representation and warranty set forth in Section 3.1(b) of the
Mortgage Loan Sale and Contribution Agreement as of the date of substitution;
(iii) have a Mortgage Rate no lower than and not more than 1% per annum higher
than the Mortgage Rate of the Deleted Mortgage Loan as of the date of
substitution; (iv) have a Loan-to-Value Ratio at the time of substitution no
higher than that of the Deleted Mortgage Loan at the time of substitution; (v)
have a remaining term to stated maturity not greater than (and not more than one
year less than) that of the Deleted Mortgage Loan; and (vi) not be 30 days or
more delinquent.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
Event of Default: With respect to the Indenture, any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) a failure by the Issuer to pay (a) Accrued Bond Interest
on any Class of Bonds or the Principal Distribution Amount with
respect to a Payment Date on such Payment Date or (b) the Unpaid
Interest Shortfall with respect to any Class of Bonds, but only,
with respect to clause (b), to the extent funds are available to
make such payment as provided in the Indenture; or
(ii) the failure by the Issuer on the Final Scheduled Payment
Date to reduce the Bond Principal Balance of the Class A-1 Bonds or
Class M Bonds to zero; or
(iii) there occurs a default in the observance or performance
of any covenant or agreement of the Issuer made in the Indenture, or
any representation or warranty of the Issuer made in the Indenture
or in any certificate or other writing delivered pursuant hereto or
in connection herewith proving to have been incorrect in any
material respect as of the time when the same shall have been made,
and such default shall continue or not be cured, or the circumstance
or condition in respect of which such representation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days after there shall have been given, by registered
or certified mail, to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Holders of at least 25% of
the aggregate Bond Principal Balance of the Outstanding Bonds, a
written notice specifying such default or incorrect representation
or warranty and requiring it to be remedied and stating that such
notice is a notice of default hereunder; or
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(iv) there occurs the filing of a decree or order for relief
by a court having jurisdiction in the premises in respect of the
Issuer or any substantial part of the Trust Estate in an involuntary
case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the
Trust Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(v) there occurs the commencement by the Issuer of a voluntary
case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by the
Issuer to the entry of an order for relief in an involuntary case
under any such law, or the consent by the Issuer to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Issuer or for any
substantial part of the assets of the Trust Estate, or the making by
the Issuer of any general assignment for the benefit of creditors,
or the failure by the Issuer generally to pay its debts as such
debts become due, or the taking of any action by the Issuer in
furtherance of any of the foregoing.
Event of Servicer Termination: With respect to the Servicing
Agreement, a Servicing Default as defined in Section 6.01 of the Servicing
Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
Expense Fee Rate: With respect to each Mortgage Loan, the sum of the
Master Servicing Fee Rate, the Subservicing Fee Rate, the Indenture Trustee Fee
Rate, the Owner Trustee Fee Rate, and the Radian PMI Rate, if such Mortgage Loan
is a Radian PMI Insured Loan.
Expenses: The meaning specified in Section 7.02 of the Trust
Agreement.
Extra Principal Distribution Amount: With respect to any Payment
Date the lesser of (x) the Net Monthly Excess Cashflow for such Payment Date and
(y) the Overcollateralization Increase Amount for such Payment Date.
Xxxxxx Xxx: Xxxxxx Xxx (formerly, the Federal National Mortgage
Association), or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
Final Certification: The final certification delivered by the
Indenture Trustee pursuant to Section 2.03(b) of the Indenture in the form
attached thereto as Exhibit D.
Final Scheduled Payment Date: With respect to each Class of Bonds,
other than the Class A-IO Bonds, the Payment Date in July 2033. With respect to
the Class A-IO Bonds, the Payment Date in January 2006.
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Foreclosure Profit: With respect to a Liquidated Mortgage Loan, the
amount, if any, by which (i) the aggregate of its Net Liquidation Proceeds
exceeds (ii) the related Stated Principal Balance (plus accrued and unpaid
interest thereon at the applicable Mortgage Rate from the date interest was last
paid through the date of receipt of the final Liquidation Proceeds) of such
Liquidated Mortgage Loan immediately prior to the final recovery of its
Liquidation Proceeds.
Freddie Mac: Freddie Mac (formerly, the Federal Home Loan Mortgage
Corporation), or any successor thereto.
Xxxxx: Pledge, bargain, sell, warrant, alienate, remise, release,
convey, assign, transfer, create, and xxxxx x xxxx upon and a security interest
in and right of set-off against, deposit, set over and confirm pursuant to the
Indenture. A Grant of the Collateral or of any other agreement or instrument
shall include all rights, powers and options (but none of the obligations) of
the granting party thereunder, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of such collateral or other agreement or instrument and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring proceedings in the name of the granting party or otherwise, and generally
to do and receive anything that the granting party is or may be entitled to do
or receive thereunder or with respect thereto.
Guaranteed Amount: With respect to the Class A-IO Bonds and each
Payment Date, the full payment of Accrued Bond Interest on the Class A-IO Bonds
on each Payment Date to the extent not covered by Available Funds on any Payment
Date. Such amount shall be unconditionally and irrevocably guaranteed to the
Issuer pursuant to the Guaranty Agreement.
Guaranty Agreement: The guaranty agreement dated as of July 30,
2003, among Impac Holdings, as guarantor, the Issuer and the Indenture Trustee.
Impac Holdings: Impac Mortgage Holdings, Inc., a Maryland
corporation, and its successors and assigns.
Indemnified Party: The meaning specified in Section 7.02 of the
Trust Agreement.
Indenture: The indenture dated as of July 30, 2003, between the
Issuer and the Indenture Trustee, as Indenture Trustee, relating to the Impac
CMB Trust Series 2003-9F Bonds.
Indenture Trustee: Deutsche Bank National Trust Company, and its
successors and assigns or any successor indenture trustee appointed pursuant to
the terms of the Indenture.
Indenture Trustee Fee: With respect to any Payment Date, one month's
interest accrued at the Indenture Trustee's Fee Rate on the Stated Principal
Balance of each Mortgage Loan.
Indenture Trustee Fee Rate: On each Mortgage Loan, a rate equal to
0.0165% per annum.
-13-
Independent: When used with respect to any specified Person, the
Person (i) is in fact independent of the Issuer, any other obligor on the Bonds,
the Seller, the Master Servicer, the Depositor and any Affiliate of any of the
foregoing Persons, (ii) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor, the
Seller, the Master Servicer, the Depositor or any Affiliate of any of the
foregoing Persons and (iii) is not connected with the Issuer, any such other
obligor, the Seller, the Master Servicer, the Depositor or any Affiliate of any
of the foregoing Persons as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Independent Certificate: A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 10.01 of the Indenture,
made by an independent appraiser or other expert appointed by an Issuer Request
and approved by the Indenture Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the definition
of "Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
Interest Determination Date: With respect to the first Accrual
Period, the second LIBOR Business Day preceding the Closing Date, and with
respect to each Accrual Period thereafter, the second LIBOR Business Day
preceding the related Payment Date on which such Accrual Period commences.
Initial Bond Principal Balance: With respect to the Class A-1 Bonds,
$146,945,000 and with respect to the Class M Bonds, $8,598,000.
Initial Certification: The initial certification delivered by the
Indenture Trustee pursuant to Section 2.03(a) of the Indenture in the form
attached thereto as Exhibit C.
Initial Subservicers: With respect to all of the Mortgage Loans,
Wendover Funding, Inc. and HomeComings Financial Network, Inc. or their
respective successors in interest.
Insurance Proceeds: Proceeds paid by any insurer pursuant to any
insurance policy covering a Mortgage Loan which are required to be remitted to
the Master Servicer, net of any component thereof (i) covering any expenses
incurred by or on behalf of the Master Servicer in connection with obtaining
such proceeds, (ii) that is applied to the restoration or repair of the related
Mortgaged Property or (iii) released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures.
Investment Company Act: The Investment Company Act of 1940, as
amended, and any amendments thereto.
Issuer: Impac CMB Trust Series 2003-9F, a Delaware statutory trust,
or its successor in interest.
Issuer Request: A written order or request signed in the name of the
Issuer by any one of its Authorized Officers and delivered to the Indenture
Trustee.
-14-
Lien: Any mortgage, deed of trust, pledge, conveyance,
hypothecation, assignment, participation, deposit arrangement, encumbrance, lien
(statutory or other), preference, priority right or interest or other security
agreement or preferential arrangement of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing and the filing of any financing statement under the UCC
(other than any such financing statement filed for informational purposes only)
or comparable law of any jurisdiction to evidence any of the foregoing;
provided, however, that any assignment pursuant to Section 6.02 of the Servicing
Agreement shall not be deemed to constitute a Lien.
Liquidated Mortgage Loan: With respect to any Payment Date, any
Mortgage Loan in respect of which the Master Servicer has determined, in
accordance with the servicing procedures specified in the Servicing Agreement,
as of the end of the related Due Period that substantially all Liquidation
Proceeds which it reasonably expects to recover with respect to the disposition
of the related Mortgaged Property or REO Property have been recovered.
Liquidation Expenses: Out-of-pocket expenses (exclusive of overhead)
which are incurred by or on behalf of the Master Servicer in connection with the
liquidation of any Mortgage Loan and not recovered under any insurance policy,
such expenses including, without limitation, legal fees and expenses, any
unreimbursed amount expended (including, without limitation, amounts advanced to
correct defaults on any mortgage loan which is senior to such Mortgage Loan and
amounts advanced to keep current or pay off a mortgage loan that is senior to
such Mortgage Loan) respecting the related Mortgage Loan and any related and
unreimbursed expenditures for real estate property taxes or for property
restoration, preservation or insurance against casualty loss or damage.
Liquidation Proceeds: Proceeds (including Insurance Proceeds)
received in connection with the liquidation of any Mortgage Loan or related REO
Property, whether through trustee's sale, foreclosure sale or otherwise.
Loan-to-Value Ratio: With respect to any Mortgage Loan, as of any
date of determination, a fraction expressed as a percentage, the numerator of
which is the then current principal amount of the Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
Lost Note Affidavit: With respect to any Mortgage Loan as to which
the original Mortgage Note has been lost or destroyed and has not been replaced,
an affidavit from the Seller certifying that the original Mortgage Note has been
lost, misplaced or destroyed (together with a copy of the related Mortgage
Note).
Majority Certificateholder: A Holder of a 50.01% or greater
Certificate Percentage Interest of the Certificates.
Master Servicer: Impac Funding Corporation, a California
corporation, and its successors and assigns.
-15-
Master Servicing Fee: With respect to each Mortgage Loan and any
Payment Date, the fee payable monthly to the Master Servicer in respect of
master servicing compensation that accrues at an annual rate equal to the Master
Servicing Fee Rate multiplied by the Stated Principal Balance of such Mortgage
Loan as of the related Due Date in the related Due Period.
Master Servicing Fee Rate: With respect to any Mortgage Loan, 0.030%
per annum.
Maximum Bond Interest Rate: With respect to the Class A-1 Bonds and
Class M Bonds, 11.00% per annum.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS(R) System.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Payment: With respect to any Mortgage Loan (including any
REO Property) and any Due Date, the payment of principal and interest due
thereon in accordance with the amortization schedule at the time applicable
thereto (after adjustment, if any, for partial Principal Prepayments and for
Deficient Valuations occurring prior to such Due Date but before any adjustment
to such amortization schedule by reason of any bankruptcy, other than a
Deficient Valuation, or similar proceeding or any moratorium or similar waiver
or grace period).
Moody's: Xxxxx'x Investors Service, Inc. or its successor in
interest.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple interest in real property securing a
Mortgage Loan.
Mortgage File: The file containing the Related Documents pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to the Mortgage Loan Sale and Contribution
Agreement or the Servicing Agreement.
Mortgage Loans: The Mortgage Loans that will be transferred and
assigned to the Trust pursuant to Section 2.03(a) and Section 2.05 of the
Indenture, each Mortgage Loan so held being identified in the Mortgage Loan
Schedule. The aggregate principal balance of the Mortgage Loans as of the
Cut-Off Date is equal to $156,324,117.11.
-16-
Mortgage Loan Sale and Contribution Agreement: The Mortgage Loan
Sale and Contribution Agreement, dated as of the Closing Date, between the
Seller, as seller, and the Purchaser, as purchaser, relating to the sale,
transfer and assignment of the Mortgage Loans.
Mortgage Loan Schedule: With respect to any date, the schedule of
Mortgage Loans held by the Issuer on such date. The initial schedule of Mortgage
Loans as of the respective Cut-Off Dates is the schedule set forth in Exhibit B
of the Indenture, which schedule sets forth as to each Mortgage Loan:
(i) the loan number and name of the Mortgagor;
(ii) the street address, city, state and zip code of the
Mortgaged Property;
(iii) the original Mortgage Rate;
(iv) the maturity date;
(v) the original principal balance;
(vi) the first Payment Date;
(vii) the type of Mortgaged Property;
(viii) the Monthly Payment in effect as of the related Cut-Off
Dates;
(ix) the Cut-off Date Principal Balance;
(x) the Payment Date frequency, if applicable;
(xi) the occupancy status;
(xii) the purpose of the Mortgage Loan;
(xiii) the Appraised Value of the Mortgaged Property;
(xiv) the original term to maturity;
(xv) the paid-through date of the Mortgage Loan;
(xvi) the Loan-to-Value Ratio;
(xvii) whether such Mortgage Loan is a Radian PMI Insured
Loan, and if so, the related Radian PMI Rate; and
(xviii) whether or not the Mortgage Loan was underwritten
pursuant to a limited documentation program.
-17-
The Mortgage Loan Schedule shall also set forth the total of the
amounts described under (ix) above for all of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Rate: With respect to any Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan.
Mortgaged Property: The underlying property, including real property
and improvements thereon, securing a Mortgage Loan.
Mortgagor: The obligor or obligors under a Mortgage Note.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, Liquidation Proceeds net of Liquidation Expenses.
Net Monthly Excess Cash Flow: For any Payment Date, the sum of (a)
any Overcollateralization Release Amount and (b) the excess of (x) the Available
Funds for such Payment Date over (y) the sum for such Payment Date of (A) the
aggregate amount of Accrued Bond Interest for the Bonds and (B) the Principal
Remittance Amount.
Net Mortgage Rate: With respect to any Mortgage Loan and any day,
the related Mortgage Rate less the Expense Fee Rate.
Nonrecoverable Advance: Any advance (i) which was previously made or
is proposed to be made by the Master Servicer; and (ii) which, in the good faith
judgment of the Master Servicer, will not or, in the case of a proposed advance,
would not, be ultimately recoverable by the Master Servicer from Liquidation
Proceeds, Insurance Proceeds or future payments on any Mortgage Loan. The
Indenture Trustee may conclusively rely on any determination of
nonrecoverability made by the Master Servicer.
Notional Amount: With respect to the Class A-IO Bonds, immediately
prior to the related Payment Date, for the August 2003 Payment Date through the
July 2004 Payment Date, the Notional Amount of the Class A-IO Bonds will be
$4,885,000, for the August 2004 Payment Date through the January 2005 Payment
Date, $4,299,000, for the February 2005 Payment Date through the July 2005
Payment Date, $3,127,000, for the August 2005 Payment Date through the January
2006 Payment Date, $2,345,000, and for each Payment Date thereafter, $0.
Officer's Certificate: With respect to the Master Servicer, a
certificate signed by the President, Managing Director, a Director, a Vice
President or an Assistant Vice President, of the Master Servicer and delivered
to the Indenture Trustee. With respect to the Issuer, a certificate signed by
any Authorized Officer of the Issuer, under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 10.01 of the
Indenture, and delivered to the Indenture Trustee. Unless otherwise specified,
any reference in the Indenture to an Officer's Certificate shall be to an
Officer's Certificate of any Authorized Officer of the Issuer.
-18-
One-Month LIBOR: With respect to any Accrual Period, the rate
determined by the Indenture Trustee on the related Interest Determination Date
on the basis of the London interbank offered rate for one-month United States
dollar deposits, as such rates appear on the Telerate Screen Page 3750, as of
11:00 a.m. (London time) on such Interest Determination Date.
In the event that on any Interest Determination Date, Telerate
Screen 3750 fails to indicate the London interbank offered rate for one-month
United States dollar deposits, then One-Month LIBOR for the related Interest
Accrual Period will be established by the Indenture Trustee as follows:
(i) If on such Interest Determination Date two or more Reference
Banks provide such offered quotations, One-Month LIBOR for the related Accrual
Period shall be the arithmetic mean of such offered quotations (rounded upwards
if necessary to the nearest whole multiple of 1/16%).
(ii) If on such Interest Determination Date fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the related Accrual
Period shall be the higher of (i) One-Month LIBOR as determined on the previous
Interest Determination Date and (ii) the Reserve Interest Rate.
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 for the related Accrual Period shall (in the absence
of manifest error) be final and binding.
Opinion of Counsel: A written opinion of counsel acceptable to the
Indenture Trustee in its reasonable discretion which counsel may be in-house
counsel for the Master Servicer if acceptable to the Indenture Trustee and the
Rating Agencies or counsel for the Depositor, as the case may be.
Optional Redemption Date: The first Payment Date on which the trust
may be terminated at the option of the Certificateholders as described under
Section 8.07.
Original Value: Except in the case of a refinanced Mortgage Loan,
the lesser of the Appraised Value or sales price of Mortgaged Property at the
time a Mortgage Loan is closed, and for a refinanced Mortgage Loan, the Original
Value is the value of such property set forth in an appraisal acceptable to the
Master Servicer.
Outstanding: With respect to the Bonds, as of the date of
determination, all Bonds theretofore executed, authenticated and delivered under
this Indenture except:
(i) Bonds theretofore canceled by the Bond Registrar or
delivered to the Indenture Trustee for cancellation; and
(ii) Bonds in exchange for or in lieu of which other Bonds
have been executed, authenticated and delivered pursuant to the
Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Bonds are held by a holder in due course.
-19-
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal Prepayment
in Full, Cash Liquidation or REO Disposition and which was not purchased,
deleted or substituted for prior to such Due Date pursuant to the Servicing
Agreement.
Overcollateralization Increase Amount: As of any Payment Date, the
excess, if any, of (a) the Overcollateralization Target Amount over (B) the
Overcollateralized Amount on such Payment Date (after taking into account
payments to the Bonds of the Basic Principal Distribution Amount on such Payment
Date).
Overcollateralization Release Amount: With respect to any Payment
Date, the lesser of (x) the Principal Remittance Amount for such Payment Date
and (y) the excess, if any, of (i) the Overcollateralized Amount for such
Payment Date (assuming that 100% of the Principal Remittance Amount is applied
as a principal payment on such Payment Date) over (ii) the Overcollateralization
Target Amount for such Payment Date.
Overcollateralization Target Amount: With respect to any Payment
Date, 0.50% of the Cut-off Date Balance.
Overcollateralized Amount: As of any Payment Date, the amount, if
any, by which (i) the aggregate principal balances of the Mortgage Loans (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or Advanced, and unscheduled collections of
principal received during the related Prepayment Period and after reduction for
Realized Losses incurred during the related Prepayment Period) exceeds (ii) the
aggregate Bond Principal Balance of the Bonds (other than the Class A-IO Bonds)
as of such Payment Date (after giving effect to distributions to be made on such
Payment Date).
Owner Trust Estate: The corpus of the Issuer created by the Trust
Agreement which consists of items referred to in Section 3.01 of the Trust
Agreement.
Owner Trustee: Wilmington Trust Company and its successors and
assigns or any successor owner trustee appointed pursuant to the terms of the
Trust Agreement.
Owner Trustee Fee: With respect to any Payment Date the product of
(i) the Owner Trustee Fee Rate divided by 12 and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the first day of the related Due
Period.
Owner Trustee Fee Rate: A rate equal to 0.0017% per annum.
Paying Agent: Any paying agent or co-paying agent appointed pursuant
to Section 3.03 of the Indenture, which initially shall be the Indenture
Trustee.
Payment Account: The account established by the Indenture Trustee
pursuant to Section 3.01 of the Indenture. The Payment Account shall be an
Eligible Account.
Payment Date: The 25th day of each month, or if such day is not a
Business Day, then the next Business Day.
-20-
Percentage Interest: With respect to any Bond, the percentage
obtained by dividing the Bond Principal Balance or Notional Amount of such Bond
by the aggregate Bond Principal Balance or Notional Amount of all Bonds of that
Class. With respect to any Certificate, the percentage as stated on the face
thereof.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Plan: Any employee benefit plan or certain other retirement plans
and arrangements, including individual retirement accounts and annuities, Xxxxx
plans and bank collective investment funds and insurance company general or
separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA or Section 4975 of the Code.
Plan Assets: Assets of a Plan within the meaning of Department of
Labor regulation 29 C.F.R. ss.2510.3-101.
Pool Balance: With respect to any date of determination, the
aggregate of the Stated Principal Balances of all Mortgage Loans as of such
date.
Prepayment Interest Shortfall: As to any Payment Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the related Prepayment
Period, an amount equal to the excess of interest accrued during the related
Prepayment Period at the Net Mortgage Rate on the Stated Principal Balance of
such Mortgage Loan over the sum of the amount of interest (less interest at the
related Expense Fee Rate) paid by the Mortgagor for such Prepayment Period to
the date of such Principal Prepayment in Full and any Advances made by the
Master Servicer pursuant to Section 4.04 of the Servicing Agreement or (b) a
partial Principal Prepayment during the related Prepayment Period, an amount
equal to the interest at the Mortgage Rate (less the Subservicing Fee Rate)
during the related Prepayment Period on the amount of such partial Principal
Prepayment.
Prepayment Period: With respect to each Mortgage Loan and any
Payment Date, the calendar month immediately preceding the month in which such
Payment Date occurs.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance issued by a Qualified Insurer or any replacement policy therefor,
including the Radian Lender-Paid PMI Policies.
Principal Distribution Amount: With respect to any Payment Date, the
Basic Principal Distribution Amount plus the Extra Principal Distribution
Amount.
Principal Prepayment: Any payment of principal or other recovery on
a Mortgage Loan, including a recovery that takes the form of Liquidation
Proceeds or Insurance Proceeds, which is received in advance of its scheduled
Due Date and is not accompanied by an amount as to interest representing
scheduled interest on such payment due on any date or dates in any month or
months subsequent to the month of prepayment.
-21-
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Payment Date, the
sum of the following:
(i) the principal portion of each previously undistributed
Monthly Payment due after the Cut-Off Date received on or prior to
the related Determination Date or advanced prior to such Payment
Date (other than Monthly Payments due after the related Due Period,
which shall be treated as if received during the Due Period they
were due) on each Outstanding Mortgage Loan;
(ii) the principal portion of all proceeds of any Mortgage
Loan repurchased during the related Prepayment Period (or deemed to
have been so repurchased in accordance with the Servicing Agreement)
pursuant to the Servicing Agreement and the amount of any shortfall
deposited in the Collection Account in connection with the
substitution of a Deleted Mortgage Loan pursuant to the Mortgage
Loan Sale and Contribution Agreement during the related Collection
Period; and
(iii) the principal portion of all other unscheduled
collections received during the related Prepayment Period
(including, without limitation, Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds and REO Proceeds) to the extent
applied by the Master Servicer as recoveries of principal of the
related Mortgage Loan pursuant to the Servicing Agreement.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Prospectus: The Prospectus Supplement, dated July 28, 2003, together
with the attached Prospectus, dated March 28, 2003.
Purchase Price: The meaning specified in Section 2.2(a) of the
Mortgage Loan Sale and Contribution Agreement.
Purchaser: IMH Assets Corp., a California corporation, and its
successors and assigns.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of business
and each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and to
write the insurance provided by the insurance policy issued by it, approved as
an insurer by the Master Servicer and as a Xxxxxx Xxx-approved mortgage insurer.
Radian: Radian Guaranty, Inc., or its successors or assigns.
-22-
Xxxxxx Xxxxxx-Paid PMI Policy: A lender-paid primary mortgage
insurance policy issued by Xxxxxx, in accordance with a March 29, 2002 letter
between the Seller and Xxxxxx.
Radian PMI Insured Loans: The Mortgage Loans included in the Trust
Fund covered by a Radian Lender-Paid PMI Policy, as indicated on the Mortgage
Loan Schedule.
Radian PMI Policy Fee: With respect to each Radian PMI Insured Loan
and any Payment Date, the product of (i) the Radian PMI Rate divided by 12 and
(ii) the Stated Principal Balance of such Mortgage Loan as of the first day of
the related Due Period.
Radian PMI Rate: With respect to any Mortgage Loan covered by the
Radian Lender-Paid PMI Policy, the rate per annum at which the premium with
respect to such policy accrues as indicated in the Mortgage Loan Schedule.
Rate Factor: If the holders of the Certificates do not exercise
their purchase option as described under Section 8.07 with respect to the Bonds,
either (A)(i) on the first through third Payment Dates after the 20% Clean-Up
Call Date but not on or prior to January 2006, 2.0 with respect to the Class A-1
Bonds, and 1.5 with respect to the Class M Bonds; and (ii) on the fourth Payment
Date after the 20% Clean-Up Call Date but not on or prior to April 2006 and each
Payment Date thereafter, 2.5 with respect to the Class A-1 Bonds, and 2.0 with
respect to the Class M Bonds; or (B) on the Payment Date after July 2013, 2.5
with respect to the Class A-1 Bonds, and 2.0 with respect to the Class M Bonds.
With respect to the Class A-1 Bonds and Class M Bonds and any other Payment
Date, the Rate Factor shall equal 1.0.
Rating Agency: Any nationally recognized statistical rating
organization, or its successor, that rated the Bonds at the request of the
Depositor at the time of the initial issuance of the Bonds. Initially, Standard
& Poor's and Xxxxx'x. References herein to the highest short term unsecured
rating category of a Rating Agency shall mean A-1 or better in the case of
Standard & Poor's, and P-1 or better in the case of Xxxxx'x and in the case of
any other Rating Agency shall mean such equivalent ratings. References herein to
the highest long-term rating category of a Rating Agency shall mean "AAA" in the
case of Standard & Poor's, and "Aaa" in the case of Xxxxx'x and in the case of
any other Rating Agency, such equivalent rating.
Realized Loss: With respect to each Mortgage Loan (or REO Property)
as to which a Cash Liquidation or REO Disposition has occurred, an amount (not
less than zero) equal to (i) the Stated Principal Balance of the Mortgage Loan
(or REO Property) as of the date of Cash Liquidation or REO Disposition, plus
(ii) interest (and REO Imputed Interest, if any) at the Net Mortgage Rate from
the Due Date as to which interest was last paid or advanced to Bondholders up to
the last day of the month in which the Cash Liquidation (or REO Disposition)
occurred on the Stated Principal Balance of such Mortgage Loan (or REO Property)
outstanding during each Due Period that such interest was not paid or advanced,
minus (iii) the proceeds, if any, received during the month in which such Cash
Liquidation (or REO Disposition) occurred, to the extent applied as recoveries
of interest at the Net Mortgage Rate and to principal of the Mortgage Loan, net
of the portion thereof reimbursable to the Master Servicer or any Subservicer
with respect to related Advances or expenses as to which the Master Servicer or
any Subservicer is entitled to reimbursement thereunder but which have not been
previously
-23-
reimbursed. With respect to each Mortgage Loan which has become the subject of a
Deficient Valuation, the difference between the principal balance of the
Mortgage Loan outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient Valuation.
With respect to each Mortgage Loan which has become the object of a Debt Service
Reduction, the amount of such Debt Service Reduction.
Record Date: With respect to any Book-Entry Bonds and any Payment
Date, the close of business on the Business Day immediately preceding such
Payment Date. With respect to any Bonds that are not Book-Entry Bonds, the close
of business on the last Business Day of the calendar month preceding such
Payment Date.
Reference Banks: Any leading banks engaged in transactions in
Eurodollar deposits in the international Eurocurrency market (i) with an
established place of business in London, (ii) whose quotations appear on the
Telerate Screen Page 3750 on the Interest Determination Date in question, (iii)
which have been designated as such by the Indenture Trustee after consultation
with the Master Servicer, and (iv) which are not Affiliates of the Depositor or
the Seller.
Registered Holder: The Person in whose name a Bond is registered in
the Bond Register on the applicable Record Date.
Related Documents: With respect to each Mortgage Loan, the documents
specified in Section 2.1(b) of the Mortgage Loan Sale and Contribution Agreement
and any documents required to be added to such documents pursuant to the
Mortgage Loan Sale and Contribution Agreement, the Trust Agreement, Indenture or
the Servicing Agreement.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Shortfall: As to any Payment Date and any Mortgage Loan
(other than a Mortgage Loan relating to an REO Property), any shortfalls
relating to the Relief Act or similar legislation or regulations.
Remittance Report: The report prepared by the Master Servicer
pursuant to Section 4.01 of the Servicing Agreement.
REO Acquisition: The acquisition by the Master Servicer on behalf of
the Indenture Trustee for the benefit of the Bondholders of any REO Property
pursuant to Section 3.13 of the Servicing Agreement.
REO Disposition: As to any REO Property, a determination by the
Master Servicer that it has received substantially all Insurance Proceeds,
Liquidation Proceeds, REO Proceeds and other payments and recoveries (including
proceeds of a final sale) which the Master Servicer expects to be finally
recoverable from the sale or other disposition of the REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Net Mortgage Rate that would have been
applicable to the related
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Mortgage Loan had it been Outstanding) on the unpaid principal balance of the
Mortgage Loan as of the date of acquisition thereof for such period as such
balance is reduced pursuant to Section 3.13 of the Servicing Agreement by any
income from the REO Property treated as a recovery of principal.
REO Proceeds: Proceeds, net of expenses, received in respect of any
REO Property (including, without limitation, proceeds from the rental of the
related Mortgaged Property) which proceeds are required to be deposited into the
Collection Account only upon the related REO Disposition.
REO Property: A Mortgaged Property that is acquired by the Issuer by
foreclosure or by deed in lieu of foreclosure.
Repurchase Event: With respect to any Mortgage Loan, either (i) a
discovery that, as of the Closing Date the related Mortgage was not a valid
first lien on the related Mortgaged Property, subject to no other liens except
(A) the lien of real property taxes and assessments not yet due and payable, (B)
covenants, conditions, and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage and such
other permissible title exceptions as are permitted and (C) other matters to
which like properties are commonly subject which do not materially adversely
affect the value, use, enjoyment or marketability of the related Mortgaged
Property or (ii) with respect to any Mortgage Loan as to which the Seller
delivers an affidavit certifying that the original Mortgage Note has been lost
or destroyed, a subsequent default on such Mortgage Loan if the enforcement
thereof or of the related Mortgage is materially and adversely affected by the
absence of such original Mortgage Note.
Repurchase Price: With respect to any Mortgage Loan required to be
repurchased on any date pursuant to the Mortgage Loan Sale and Contribution
Agreement or purchased by the Master Servicer pursuant to the Servicing
Agreement, an amount equal to the sum, without duplication, of (i) 100% of the
Stated Principal Balance thereof (without reduction for any amounts charged off)
and (ii) unpaid accrued interest at the Mortgage Rate on the outstanding
principal balance thereof from the Due Date to which interest was last paid by
the Mortgagor to the first day of the month following the month of purchase plus
(iii) the amount of unreimbursed Advances or unreimbursed Servicing Advances
made with respect to such Mortgage Loan plus (iv) any other amounts owed to the
Master Servicer or any Subservicer pursuant to Section 3.07 of the Servicing
Agreement and not included in clause (iii) of this definition plus (v) any costs
and damages incurred by the trust in connection with any violation by such loan
of any predatory-lending law.
Reserve Interest Rate: With respect to any Interest Determination
Date, the rate per annum that the Indenture Trustee determines to be either (i)
the arithmetic mean (rounded upwards if necessary to the nearest whole multiple
of 0.0625%) of the one-month United States dollar lending rates which New York
City banks selected by the Indenture Trustee are quoting on the relevant
Interest Determination Date to the principal London offices of leading banks in
the London interbank market or (ii) in the event that the Indenture Trustee can
determine no such arithmetic mean, the lowest one-month United States dollar
lending rate which New York City
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banks selected by the Indenture Trustee are quoting on such Interest
Determination Date to leading European banks.
Responsible Officer: With respect to the Indenture Trustee, any
officer of the Indenture Trustee with direct responsibility for the
administration of the Indenture and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
Securities Intermediary: Deutsche Bank National Trust Company, or
its successors and assigns.
Security: Any of the Certificates or Bonds.
Securityholder or Holder: Any Bondholder or a Certificateholder.
Security Instrument: A written instrument creating a valid first
lien or second lien on a Mortgaged Property securing a Mortgage Note, which may
be any applicable form of mortgage, deed of trust, deed to secure debt or
security deed, including any riders or addenda thereto.
Seller: Impac Mortgage Holdings, Inc., a Maryland corporation, and
its successors and assigns.
Seller Guarantee: The Guaranty Agreement of Impac Mortgage Holdings,
Inc. of payments to the Issuer, attached as Exhibit E to the Indenture.
Servicing Account: The separate trust account created and maintained
by the Master Servicer or each Subservicer with respect to the Mortgage Loans or
REO Property, which shall be an Eligible Account, for collection of taxes,
assessments, insurance premiums and comparable items as described in Section
3.08 of the Servicing Agreement.
Servicing Advances: All customary, reasonable and necessary "out of
pocket"costs and expenses incurred in connection with a default, delinquency or
other unanticipated event in the performance by the Master Servicer or any
Subservicer of its servicing obligations, including, without duplication, but
not limited to, the cost of (i) the preservation, restoration and protection of
a Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures and any expenses incurred in relation to any such proceedings that
result from the Mortgage Loan being registered on the MERS(R) System, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Sections 3.10, 3.11, 3.13 of the Servicing Agreement.
Servicing Agreement: The Servicing Agreement dated as of July 30,
2003, among the Master Servicer, the Issuer and the Indenture Trustee.
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Servicing Certificate: A certificate completed and executed by a
Servicing Officer on behalf of the Master Servicer in accordance with Section
4.01 of the Servicing Agreement.
Servicing Default: The meaning assigned in Section 6.01 of the
Servicing Agreement.
Servicing Fee: The sum of the Master Servicing Fee and the
Subservicing Fee.
Servicing Fee Rate: The sum of the Master Servicing Fee Rate and the
related Subservicing Fee Rate.
Servicing Officer: Any officer of the Master Servicer involved in,
or responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Indenture Trustee by the Master Servicer, as such list may be amended from
time to time.
Special Certificate Cap Contract: The confirmation together with the
associated ISDA Master Agreement, delivered to the Indenture Trustee on the
Closing Date and attached to the Indenture as Exhibit F.
Standard & Poor's: Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor in interest.
Stated Principal Balance: With respect to any Mortgage Loan or
related REO Property as of any date of determination, (i) the principal balance
of the Mortgage Loan outstanding as of the Cut-Off Date after application of all
scheduled Monthly Payments due on or before such date, whether or not received,
minus (ii) the sum of (a) the principal portion of the Monthly Payments due with
respect to such Mortgage Loan or REO Property during each Due Period ending
prior to the most recent Payment Date which were received or with respect to
which an Advance was made, (b) all Principal Prepayments with respect to such
Mortgage Loan or REO Property, and all Insurance Proceeds, Liquidation Proceeds
and REO Proceeds to the extent applied by the Master Servicer as recoveries of
principal in accordance with Section 3.13 of the Servicing Agreement with
respect to such Mortgage Loan or REO Property, which were distributed pursuant
to Section 3.05 of the Indenture on any previous Payment Date, and (c) the
principal portion of any Realized Loss with respect thereto allocated pursuant
to Section 3.30 of the Indenture for any previous Payment Date.
Statement to Bondholders: The statement created by the Indenture
Trustee pursuant to Section 7.05 of the Indenture.
Statutory Trust Statute: Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. ss.3801 et seq., as the same may be amended from time to
time.
Subservicer: Any Person with whom the Master Servicer has entered
into a Subservicing Agreement as a Subservicer, including the Initial
Subservicers.
Subservicing Account: An Eligible Account established or maintained
by a Subservicer as provided for in Section 3.06(e) of the Servicing Agreement.
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Subservicing Agreement: The written contract between the Master
Servicer and any Subservicer relating to servicing and administration of certain
Mortgage Loans as provided in Section 3.02 of the Servicing Agreement.
Subservicing Fee: With respect to each Mortgage Loan and any Payment
Date, the fee payable monthly to the subservicer in respect of servicing
compensation that accrues at an annual rate equal to the Subservicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the
related Due Date in the related Due Period.
Subservicing Fee Rate: With respect to each Mortgage Loan, a rate
equal to 0.25% per annum.
Substitution Adjustment Amount: With respect to any Eligible
Substitute Mortgage Loan, the amount as defined in Section 2.03 of the Servicing
Agreement.
Telerate Screen Page 3750: The display designated as page 3750 on
the Telerate Service (or any other page as may replace page 3750 on that service
for the purpose of displaying London interbank offered rates of major banks).
Treasury Regulations: Regulations, including proposed or temporary
Regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Trust: The Impac CMB Trust Series 2003-9F to be created pursuant to
the Trust Agreement.
Trust Agreement: The Amended and Restated Trust Agreement dated as
of July 30, 2003, among the Owner Trustee, the Depositor and Deutsche Bank
National Trust Company, as certificate registrar and certificate paying agent,
relating to the Trust.
Trust Estate: The meaning specified in the Granting Clause of the
Indenture.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939, as
amended from time to time, as in effect on any relevant date.
20% Clean-Up Call Date: The first Payment Date in or after January
2006 upon which the aggregate Stated Principal Balance of the Mortgage Loans as
of the end of the related Due Period is less than or equal to 20% of the Cut-off
Date Balance.
UCC: The Uniform Commercial Code, as amended from time to time, as
in effect in any specified jurisdiction.
Underwriter: Bear, Xxxxxxx & Co. Inc.
Uninsured Cause: Any cause of damage to property subject to a
Mortgage that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies.
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Unpaid Interest Shortfall: For each class of Bonds and any Payment
Date, such Bonds' pro rata share, based on the amount of Accrued Bond Interest
otherwise payable on such Bond on such Payment Date of (a) any Prepayment
Interest Shortfalls, to the extent not covered by Compensating Interest, and (b)
any Relief Act Shortfalls, plus interest on the amount of previously allocated
Unpaid Interest Shortfall on such class of Bonds which remains unreimbursed, at
the Bond Interest Rate for such Class for the related Accrual Period.
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