EXHIBIT 4.1
IMPAC CMB TRUST SERIES 2005-5
Issuer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Indenture Trustee
-------------------------------------------
INDENTURE
Dated as of June 30, 2005
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COLLATERALIZED ASSET-BACKED BONDS
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I
Definitions.....................................................................................................
Section 1.01 Definitions.......................................................................
Section 1.02 Incorporation by Reference of Trust Indenture Act.................................
Section 1.03 Rules of Construction.............................................................
ARTICLE II
Original Issuance of Bonds......................................................................................
Section 2.01 Form..............................................................................
Section 2.02 Execution, Authentication and Delivery............................................
Section 2.03 Acceptance of Mortgage Loans by Indenture Trustee.................................
Section 2.04 Acceptance of Derivative Contracts and Special Certificate Cap Contract by
Indenture Trustee.................................................................
Section 2.05 [Reserved]........................................................................
Section 2.06 [Reserved]........................................................................
ARTICLE III
Covenants.......................................................................................................
Section 3.01 Collection of Payments with respect to the Mortgage Loans.........................
Section 3.02 Maintenance of Office or Agency...................................................
Section 3.03 Money for Payments To Be Held in Trust; Paying Agent..............................
Section 3.04 Existence.........................................................................
Section 3.05 Payment of Principal and Interest.................................................
Section 3.06 Protection of Trust Estate........................................................
Section 3.07 Opinions as to Trust Estate.......................................................
Section 3.08 Performance of Obligations........................................................
Section 3.09 Negative Covenants................................................................
Section 3.10 Annual Statement as to Compliance.................................................
Section 3.11 [Reserved]........................................................................
Section 3.12 Representations and Warranties Concerning the Mortgage Loans......................
Section 3.13 Amendments to Servicing Agreement.................................................
Section 3.14 Master Servicer as Agent and Bailee of the Indenture Trustee......................
Section 3.15 Investment Company Act............................................................
Section 3.16 Issuer May Consolidate, etc.......................................................
Section 3.17 Successor or Transferee...........................................................
Section 3.18 No Other Business.................................................................
Section 3.19 No Borrowing......................................................................
Section 3.20 Guarantees, Loans, Advances and Other Liabilities.................................
Section 3.21 Capital Expenditures..............................................................
Section 3.22 Determination of Bond Interest Rate...............................................
Section 3.23 Restricted Payments...............................................................
Section 3.24 Notice of Events of Default.......................................................
Section 3.25 Further Instruments and Acts......................................................
Section 3.26 Statements to Bondholders.........................................................
Section 3.27 [Reserved]........................................................................
Section 3.28 [Reserved]........................................................................
Section 3.29 Certain Representations Regarding the Trust Estate................................
Section 3.30 Guaranty Agreement; Payments Under the Guaranty Agreement.........................
Section 3.31 [Reserved]........................................................................
Section 3.32 Replacement Derivative Contracts..................................................
Section 3.33 [Reserved]........................................................................
Section 3.34 Allocation of Realized Losses.....................................................
Section 3.35 [Reserved]........................................................................
Section 3.36 [Reserved]........................................................................
ARTICLE IV
The Bonds; Satisfaction and Discharge of Indenture..............................................................
Section 4.01 The Bonds.........................................................................
Section 4.02 Registration of and Limitations on Transfer and Exchange of Bonds; Appointment of
Bond Registrar and Certificate Registrar..........................................
Section 4.03 Mutilated, Destroyed, Lost or Stolen Bonds........................................
Section 4.04 Persons Deemed Owners.............................................................
Section 4.05 Cancellation......................................................................
Section 4.06 Book-Entry Bonds..................................................................
Section 4.07 Notices to Depository.............................................................
Section 4.08 Definitive Bonds..................................................................
Section 4.09 Tax Treatment.....................................................................
Section 4.10 Satisfaction and Discharge of Indenture...........................................
Section 4.11 Application of Trust Money........................................................
Section 4.12 Repayment of Monies Held by Paying Agent..........................................
Section 4.13 Temporary Bonds...................................................................
Section 4.14 [Reserved]........................................................................
Section 4.15 Representation Regarding ERISA....................................................
ARTICLE V
Default and Remedies............................................................................................
Section 5.01 Events of Default.................................................................
Section 5.02 Acceleration of Maturity; Rescission and Annulment................................
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.........
Section 5.04 Remedies; Priorities..............................................................
Section 5.05 Optional Preservation of the Trust Estate.........................................
Section 5.06 Limitation of Suits...............................................................
Section 5.07 Unconditional Rights of Bondholders To Receive Principal and
Interest..........................................................................
Section 5.08 Restoration of Rights and Remedies................................................
Section 5.09 Rights and Remedies Cumulative....................................................
Section 5.10 Delay or Omission Not a Waiver....................................................
Section 5.11 Control By Bondholders............................................................
Section 5.12 Waiver of Past Defaults...........................................................
Section 5.13 Undertaking for Costs.............................................................
Section 5.14 Waiver of Stay or Extension Laws..................................................
Section 5.15 Sale of Trust Estate..............................................................
Section 5.16 Action on Bonds...................................................................
Section 5.17 Performance and Enforcement of Certain Obligations................................
ARTICLE VI
The Indenture Trustee...........................................................................................
Section 6.01 Duties of Indenture Trustee.......................................................
Section 6.02 Rights of Indenture Trustee.......................................................
Section 6.03 Individual Rights of Indenture Trustee............................................
Section 6.04 Indenture Trustee's Disclaimer....................................................
Section 6.05 Notice of Event of Default........................................................
Section 6.06 Reports by Indenture Trustee to Bondholders and Tax Administration................
Section 6.07 Compensation and Indemnity........................................................
Section 6.08 Replacement of Indenture Trustee..................................................
Section 6.09 Successor Indenture Trustee by Merger.............................................
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee...........................................................................
Section 6.11 Eligibility; Disqualification.....................................................
Section 6.12 Preferential Collection of Claims Against Issuer..................................
Section 6.13 Representations and Warranties....................................................
Section 6.14 Directions to Indenture Trustee...................................................
Section 6.15 The Agents........................................................................
Section 6.16 Execution of Derivative Contracts.................................................
ARTICLE VII
Bondholders' Lists and Reports..................................................................................
Section 7.01 Issuer To Furnish Indenture Trustee Names and Addresses of Bondholders............
Section 7.02 Preservation of Information; Communications to Bondholders........................
Section 7.03 Reports of Issuer.................................................................
Section 7.04 Reports by Indenture Trustee......................................................
Section 7.05 Statements to Bondholders.........................................................
ARTICLE VIII
Accounts, Disbursements and Releases............................................................................
Section 8.01 Collection of Money...............................................................
Section 8.02 Trust Accounts....................................................................
Section 8.03 Officer's Certificate.............................................................
Section 8.04 Termination Upon Distribution to Bondholders......................................
Section 8.05 Release of Trust Estate...........................................................
Section 8.06 Surrender of Bonds Upon Final Payment.............................................
Section 8.07 Optional Redemption of the Bonds..................................................
ARTICLE IX
Supplemental Indentures.........................................................................................
Section 9.01 Supplemental Indentures Without Consent of Bondholders............................
Section 9.02 Supplemental Indentures With Consent of Bondholders...............................
Section 9.03 Execution of Supplemental Indentures..............................................
Section 9.04 Effect of Supplemental Indenture..................................................
Section 9.05 Conformity with Trust Indenture Act...............................................
Section 9.06 Reference in Bonds to Supplemental Indentures.....................................
ARTICLE X
Miscellaneous...................................................................................................
Section 10.01 Compliance Certificates and Opinions, etc.........................................
Section 10.02 Form of Documents Delivered to Indenture Trustee..................................
Section 10.03 Acts of Bondholders...............................................................
Section 10.04 Notices etc., to Indenture Trustee, Issuer, Seller and Rating
Agencies..........................................................................
Section 10.05 Notices to Bondholders; Waiver....................................................
Section 10.06 Conflict with Trust Indenture Act.................................................
Section 10.07 Effect of Headings................................................................
Section 10.08 Successors and Assigns............................................................
Section 10.09 Separability......................................................................
Section 10.10 Legal Holidays....................................................................
Section 10.11 GOVERNING LAW.....................................................................
Section 10.12 Counterparts......................................................................
Section 10.13 Recording of Indenture............................................................
Section 10.14 Issuer Obligation.................................................................
Section 10.15 No Petition.......................................................................
Section 10.16 Inspection........................................................................
ARTICLE XI
Certain Matters Regarding the Bond Insurer
Section 11.01 Rights of the Bond Insurer to Exercise the Rights of the Class A-3W Bonds.........
Section 11.02 Claims Upon the Bond Insurance Policy; Insurance Account..........................
Section 11.03 Effect of Payments by the Bond Insurer; Subrogation...............................
Section 11.04 Notices and Information to the Bond Insurer.......................................
Section 11.05 Trustee to Hold Bond Insurance Policy.............................................
EXHIBITS
Exhibit A-1.......-- Form of Class A-[_] Bonds
Exhibit A-2.......-- Form of Class M-[_] Bonds
Exhibit A-3.......-- Form of Class B-[_] Bonds
Exhibit B -- Mortgage Loan Schedule
Exhibit C -- Form of Initial Certification
Exhibit D -- Form of Final Certification
Exhibit E -- Derivative Contracts
Exhibit F -- Special Certificate Cap Contract
Exhibit G -- [Reserved]
Exhibit H -- [Reserved]
Exhibit I-1 -- [Reserved]
Exhibit I-2 -- [Reserved]
Exhibit J -- [Reserved]
Appendix A -- Definitions
This Indenture, dated as of June 30, 2005, is entered into between
Impac CMB Trust Series 2005-5, 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 2005-5 (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 Purchase Agreement as assigned to the Issuer, with
respect to the Mortgage Loans, (ii) the Servicing Agreement and any Subservicing
Agreements, (iii) any title, hazard and primary insurance policies with respect
to the Mortgaged Properties and (iv) the rights with respect to the Derivative
Contracts, the Special Certificate Cap Contract and the Guaranty Agreement as
assigned to the Issuer; and (e) all present and future claims, demands, causes
and choses in action in respect of any or all of the foregoing and all payments
on or under, and all proceeds of every kind and nature whatsoever in respect of,
any or all of the foregoing and all payments on or under, and all proceeds of
every kind and nature whatsoever in the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, checks, deposit accounts,
rights to payment of any and every kind, and other forms of obligations and
receivables, instruments and other property which at any time constitute all or
part of or are included in the proceeds of any of the foregoing (collectively,
the "Trust Estate" or the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Bonds, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, as trustee on behalf of the Holders of the
Bonds, acknowledges such Grant, accepts the trust under this Indenture in
accordance with the provisions hereof and agrees to perform its duties as
Indenture Trustee as required herein. The Indenture Trustee agrees that it will
hold the Bond Insurance Policy in trust and that it will hold any proceeds of
any claim made upon the Bond Insurance Policy solely for the use and benefit of
the Holders of the Class A-3W Bonds in accordance with the terms hereof and the
terms of the Bond Insurance Policy.
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
(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.
ARTICLE II
Original Issuance of Bonds
Section 2.01 FORM. The Class A, Class M and Class B Bonds, together with
the Indenture Trustee's certificate of authentication, shall be in substantially
the form set forth in Exhibits A-1, A-2 and A-3 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, A-2 and A-3 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, Class A-2, Class A-3W, Class A-4, Class A-IO, Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6 and Class B Bonds for original
issue in an aggregate initial principal amount of $1,647,348,000. The Class A-1
Bonds shall be issued in an aggregate initial principal amount of $926,091,000,
the Class A-2 Bonds shall be issued in an aggregate initial principal amount of
$110,000,000, the Class A-3W Bonds shall be issued in an aggregate initial
principal amount of $150,000,000, the Class A-4 Bonds shall be issued in an
aggregate initial principal amount of $131,788,000, the Class M-1 Bonds shall be
issued in an aggregate initial principal amount of $114,491,000, the Class M-2
Bonds shall be issued in an aggregate initial principal amount of $75,778,000,
the Class M-3 Bonds shall be issued in an aggregate initial principal amount of
$51,891,000, the Class M-4 Bonds shall be issued in an aggregate initial
principal amount of $20,592,000, the Class M-5 Bonds shall be issued in an
aggregate initial principal amount of $21,416,000, the Class M-6 Bonds shall be
issued in an aggregate initial principal amount of $18,945,000 and the Class B
Bonds shall be issued in an aggregate initial principal amount of $26,356,000.
The Class A-IO Bonds will not have a Bond Principal Balance and will not be
entitled to payments of principal. The Class A-IO Bonds will accrue interest on
the related Notional Amount. With respect to the Class A-IO Bonds immediately
prior to the related Payment Date, the Notional Amount for the Class A-IO Bonds
will be $1,647,348,802 for the July 2005 Payment Date, $1,540,098,246 for the
August 2005 Payment Date, $1,441,601,602 for the September 2005 Payment Date,
$1,320,364,047 for the October 2005 Payment Date, $1,209,320,224 for the
November 2005 Payment Date and $1,107,642,332 for the December 2005.
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 the related
Custodian notes pursuant to the procedures described below, the documents (or
certified copies thereof) referred to in Section 2.1(b) of the Mortgage Loan
Purchase Agreement with respect to the Mortgage Loans, and the Custodians hold
and will continue to hold those documents and any amendments, replacements or
supplements thereto and all other assets of the Trust Estate as Indenture
Trustee (or on behalf of the Indenture Trustee, as applicable) in trust for the
use and benefit of all present and future Holders of the Bonds. No later than 45
days after the Closing Date with respect to the Mortgage Loans, (or, with
respect to any Eligible Substitute Mortgage Loan, within 5 days after the
receipt by the related Custodian thereof and, with respect to any documents
received beyond 45 days after the Closing Date, promptly thereafter), the
related Custodian 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 G. In conducting such
review, the related Custodian will ascertain whether all required documents
described in Section 2.1(b) of the Mortgage Loan Purchase Agreement, with
respect to the Mortgage Loans, have been executed and received and whether those
documents relate, determined on the basis of the Mortgagor name, original
principal balance and loan number, to the Mortgage Loans it has received, as
identified in Exhibit B to this Indenture, as supplemented (PROVIDED, HOWEVER,
that with respect to those documents described 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 related Custodian may conclusively rely on the purported due execution and
genuineness of any such document and on the purported genuineness of any
signature thereon. If a Custodian 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 related Custodian 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 that a Custodian has not
received a Mortgage File with respect to any of the Mortgage Loans 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, (with respect to the
Mortgage Loans), the related Custodian 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 H. In conducting such review, the related Custodian will
ascertain whether an original of each document described in subclauses
(b)(ii)-(iv) of Section 2.1 of the Mortgage Loan Purchase Agreement with respect
to the Mortgage Loans, required to be recorded has been returned from the
recording office with evidence of recording thereon or a certified copy has been
obtained from the recording office. If the related Custodian 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 related Custodian shall
promptly notify the Seller.
(c) Upon deposit of the Repurchase Price in the Payment Account, the
related Custodian shall release to the Seller the related Mortgage File and the
Indenture Trustee 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 related Custodian shall amend the applicable Mortgage
Loan Schedule to reflect such repurchase and shall promptly notify the Master
Servicer and the Rating Agencies of such amendment.
Section 2.04 ACCEPTANCE OF DERIVATIVE CONTRACTS AND SPECIAL CERTIFICATE CAP
CONTRACT BY INDENTURE TRUSTEE. The Indenture Trustee acknowledges receipt of the
Derivative Contracts and the Special Certificate Cap Contract and declares that
it holds and will continue to hold these documents and any amendments,
replacements or supplements thereto and all other assets of the Trust Estate as
Indenture Trustee in trust for the use and benefit of all present and future
Holders of the Bonds. The Indenture Trustee shall enforce the Derivative
Contracts and the Special Certificate Cap Contract in accordance with their
terms. The Issuer hereby directs the Indenture Trustee to execute, not in its
individual capacity, but solely as Indenture Trustee on behalf of the Trust, and
deliver the Derivative Contracts and the Special Certificate Cap Contract.
Section 2.05 [RESERVED].
Section 2.06 [RESERVED].
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 and the Bond Insurer notice of any
default by the Issuer of which it has actual knowledge in the making of any
payment required to be made with respect to the Bonds;
(iii) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Bonds if
at any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Bonds of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith; and
(vi) not commence a bankruptcy proceeding against the Issuer in
connection with this Indenture.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Request
direct any Paying Agent to pay to the Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money held
by the Indenture Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Bond (other than amounts paid under the Bond
Insurance Policy) and remaining unclaimed for one year after such amount has
become due and payable shall be discharged from such trust and be paid to the
Issuer on Issuer Request; and the Holder of such Bond shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof (but
only to the extent of the amounts so paid to the Issuer), and all liability of
the Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; PROVIDED, HOWEVER, that the Indenture Trustee or such
Paying Agent, before being required to make any such repayment, shall at the
expense and direction of the Issuer cause to be published once, in an Authorized
Newspaper published in the English language, notice that such money remains
unclaimed and that, after a date specified therein which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer. The Indenture Trustee may also
adopt and employ, at the expense and direction of the Issuer, any other
reasonable means of notification of such repayment (including, but not limited
to, mailing notice of such repayment to Holders whose Bonds have been called but
have not been surrendered for redemption or whose right to or interest in monies
due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for each
such Bondholder).
Section 3.04 EXISTENCE. The Issuer will keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification 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, the Class A-2 Derivative Payment
and the Guaranteed Amount and the Class A-3W Insured Amount for such Payment
Date; PROVIDED, HOWEVER, that any amounts representing payments from the Bond
Insurer shall only be used to pay interest and principal to the Class A-3W
Bondholders pursuant to subsections (b) and (c) below.
(d) On each Payment Date, the Available Funds, the Class A-2 Derivative
Payment and the Guaranteed Amount, if any, for such Payment Date shall be
distributed in the following order of priority, (with any Class A-2 Derivative
Payment used solely to make payments of Accrued Bond Interest on the Class A-2
Bonds for such Payment Date) in each case to the extent of the Available Funds,
the Class A-2 Derivative Payment and the Guaranteed Amount remaining for such
Payment Date:
first, concurrently, to the Holders of the Class A-1, Class A-2, Class
A-3W, Class A-4 and Class A-IO Bonds, the related Accrued Bond Interest for
such Classes for such Payment Date; and
second, sequentially, in each case to the extent of the Available
Funds remaining for such Payment Date, to the Holders of the Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and Class B Bonds,
any Accrued Bond Interest for such Classes for such Payment Date.
(e) On each Payment Date, the Holders of the Bonds (other than the Class
A-IO Bonds) shall be entitled to receive payments in respect of principal equal
the related Principal Distribution Amount for that Payment Date, allocated on a
pro rata basis, based on the Bond Principal Balances thereof, in reduction of
the Bond Principal Balances thereof, until the Bond Principal Balances thereof
have been reduced to zero.
(f) On each Payment Date, any Net Monthly Excess Cashflow in respect of the
Mortgage Loans shall be paid as follows:
(i) to the Bond Insurer, the aggregate of all payments, if any, made
by the Bond Insurer under the Bond Insurance Policy with respect to the
Class A-3W Bonds, including interest thereon, to the extent not previously
paid or reimbursed;
(ii) to the Holders of the Bonds (other than the Class A-IO Bonds),
pro rata, in an amount equal to any related Overcollateralization Increase
Amount, payable to such Bondholders as part of the Principal Distribution
Amount as described under Section 3.05(c) above;
(iii) first, concurrently, on a pro rata basis, to the Holders of the
Class A-1 Bonds, Class A-2 Bonds Class A-3W and Class A-4 Bonds, provided
that any amounts payable to the Class A-4 Bonds will first be used to
reduce unpaid Allocated Realized Loss Amounts related to the Class A-1,
Class A-2 and Class A-3W Bonds, and second, sequentially, to the Holders of
the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and
Class B Bonds in an amount equal to the Allocated Realized Loss Amount for
such Bonds;
(iv) first, concurrently, to the Holders of the Class A-1, Class A-2,
Class A-3W and Class A-4 Bonds and second, sequentially, to the Holders of
the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and
Class B Bonds, in that order, any Unpaid Interest Shortfall for such Bonds
on such Payment Date, to the extent not previously reimbursed;
(v) first, concurrently, to the Holders of the Class A-1, Class A-2,
Class A-3W, Class A-4 and Class A-IO Bonds and second, sequentially, to the
Holders of the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6 and Class B Bonds, in that order, any related Basis Risk Shortfall
Carry Forward Amount for such Bonds on such Payment Date, to the extent not
covered by the Derivative Contracts; provided, however, that any Basis Risk
Shortfall Carry-Forward Amount on the Class A-2 Bonds shall be directed to
the related Derivative Contract Counterparty unless a Class A-2 Derivative
Contract Counterparty Termination Event is in effect; provided, however,
that in such event the Holder of the Class A-2 Bonds will be entitled to
receive any Basis Risk Shortfall Carry-Forward Amounts that arise on and
after the Payment Date when the Class A-2 Derivative Contract Counterparty
Termination Event occurs;
(vi) to the Indenture Trustee for amounts owed the Indenture Trustee
hereunder remaining unpaid; and
(vii) any remaining amounts to the Certificate Paying Agent, as
designee of the Issuer, for the benefit of the Holders of the Trust
Certificates.
(g) On each Payment Date any amounts received in respect of the Special
Certificate Cap Contract shall be distributed to the Certificate Paying Agent,
as designee of the Issuer, for the benefit of the Holders of the Trust
Certificates.
(h) With respect to the Derivative Contracts and on each Payment Date, the
Net Derivative Contract Payment Amount with respect to such Payment Date shall
be allocated to the Bonds (other than the Class A-IO Bonds) in the following
order of priority, in each case to the extent of amounts available:
(i) to the Holders of the Class A-1, Class A-2, Class A-3W and Class
A-4 Bonds, pro rata, based on entitlement, any related Basis Risk Shortfall
Carry-Forward Amount for such Payment Date; provided, however, that any
Basis Risk Shortfall Carry-Forward Amount on the Class A-2 Bonds shall be
directed to the related Derivative Contract Counterparty unless a Class A-2
Derivative Contract Counterparty Termination Event is in effect, provided,
however, that in such event the holder of the Class A-2 Bonds will be
entitled to receive any Basis Risk Shortfall Carry-Forward Amounts that
arise on and after the Payment Date when the Class A-2 Derivative Contract
Counterparty Termination Event occurs;
(ii) sequentially, to the Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6 and Class B Bonds any related Basis Risk Shortfall
Carry-Forward Amount for such Payment Date;
(iii) any remaining amounts shall be included in the Net Monthly
Excess Cashflow for the Mortgage Loans, and shall be used as described
under Section 3.05(d) above; and
(iv) provided the Derivative Contracts have not been subject to early
termination, any remaining amounts to the Holders of the Certificates.
(i) With respect to the Class A-2 Derivative Contract, on each Payment
Date, the Class A-2 Derivative Contract Payment Amount with respect to such
Payment Date will be allocated to the Class A-2 Bonds.
(j) 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.
(k) 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.
(l) 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 Bondholder of
record on the preceding Record Date, by wire transfer to an account specified in
writing by such Bondholder 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 Bondholder's address as it appears in the Bond Register in the amount
required to be distributed to such Bondholder on such Payment Date pursuant to
such Bondholder's Bonds; PROVIDED, HOWEVER, that the Indenture Trustee shall not
pay to such Bondholders any amount required to be withheld from a payment to
such Bondholder by the Code.
(m) The principal of each Bond (other than the Class A-IO Bonds) shall be
due and payable in full on the Final Scheduled Payment Date for such Bond as
provided in the forms of Bond set forth in Exhibits A-1, A-2 and A-3 to this
Indenture. All principal payments on the Bonds shall be made to the Bondholders
entitled thereto in accordance with the Percentage Interests represented by such
Bonds. Upon notice to the Indenture Trustee by the Issuer, the Indenture Trustee
shall notify the Person in whose name a Bond is registered at the close of
business on the Record Date preceding the Final Scheduled Payment Date or other
final Payment Date (including any final Payment Date resulting from any
redemption pursuant to Section 8.07 hereof). Such notice shall to the extent
practicable be mailed no later than five Business Days prior to such Final
Scheduled Payment Date or other final Payment Date and shall specify that
payment of the principal amount and any interest due with respect to such Bond
at the Final Scheduled Payment Date or other final Payment Date will be payable
only upon presentation and surrender of such Bond and shall specify the place
where such Bond may be presented and surrendered for such final payment. No
interest shall accrue on the Bonds on or after the Final Scheduled Payment Date
or any such other final Payment Date.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to sign any financing statement, continuation statement or
other instrument required to be signed pursuant to this Section 3.05 upon the
Issuer's preparation thereof and delivery to the Indenture Trustee.
Section 3.06 PROTECTION OF TRUST ESTATE. (a) The Issuer will from time to
time prepare, execute and deliver all such supplements and amendments hereto and
all such financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) cause the Issuer or Master Servicer to enforce any of the rights
to the Mortgage Loans; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Bondholders in such Trust Estate against the
claims of all Persons and parties.
(b) Except as otherwise provided in this Indenture, the Indenture Trustee
shall not remove any portion of the Trust Estate that consists of money or is
evidenced by an instrument, certificate or other writing from the jurisdiction
in which it was held at the date of the most recent Opinion of Counsel delivered
pursuant to Section 3.07 hereof (or from the jurisdiction in which it was held
as described in the Opinion of Counsel delivered on the Closing Date pursuant to
Section 3.07(a) hereof, or if no Opinion of Counsel has yet been delivered
pursuant to Section 3.07(b) hereof, unless the Indenture Trustee shall have
first received an Opinion of Counsel to the effect that the lien and security
interest created by this Indenture with respect to such property will continue
to be maintained after giving effect to such action or actions).
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to sign any financing statement, continuation statement or
other instrument required to be signed pursuant to this Section 3.06 upon the
Issuer's preparation thereof and delivery to the Indenture Trustee.
Section 3.07 OPINIONS AS TO TRUST ESTATE. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee and the Owner Trustee an Opinion
of Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto, and any other requisite documents, and with
respect to the execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the lien and first
priority security interest in the Collateral and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action is
necessary to make such lien and first priority security interest effective.
(b) On or before April 15 in each calendar year, beginning in 2006, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel at the
expense of the Issuer either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain the
lien and first priority security interest in the Collateral and reciting the
details of such action or stating that in the opinion of such counsel no such
action is necessary to maintain such lien and security interest. Such Opinion of
Counsel shall also describe the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest in the Collateral until December 31
in the following calendar year.
Section 3.08 PERFORMANCE OF OBLIGATIONS. (a) The Issuer will punctually
perform and observe all of its obligations and agreements contained in this
Indenture, the Basic Documents and in the instruments and agreements included in
the Trust Estate.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer.
(c) The Issuer will not take any action or permit any action to be taken by
others which would release any Person from any of such Person's covenants or
obligations under any of the documents relating to the Mortgage Loans or under
any instrument included in the Trust Estate, or which would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any of the documents relating to the Mortgage
Loans or any such instrument, except such actions as the Master Servicer is
expressly permitted to take in the Servicing Agreement. The Indenture Trustee,
as pledgee of the Mortgage Loans, shall be able to exercise the rights of the
Issuer to direct the actions of the Master Servicer pursuant to the Servicing
Agreement.
(d) The Issuer may retain an administrator and may enter into contracts
with other Persons for the performance of the Issuer's obligations hereunder,
and performance of such obligations by such Persons shall be deemed to be
performance of such obligations by the Issuer.
Section 3.09 NEGATIVE COVENANTS. So long as any Bonds are Outstanding, the
Issuer shall not:
(i) except as expressly permitted by this Indenture, sell, transfer,
exchange or otherwise dispose of the Trust Estate, unless directed to do so
by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Bonds (other than amounts properly
withheld from such payments under the Code) or assert any claim against any
present or former Bondholder by reason of the payment of the taxes levied
or assessed upon any part of the Trust Estate;
(iii) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Bonds under this
Indenture except as may be expressly permitted hereby, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof or (C) permit the lien of this
Indenture not to constitute a valid first priority security interest in the
Trust Estate; or
(iv) waive or impair, or fail to assert rights under, the Mortgage
Loans, or impair or cause to be impaired the Issuer's interest in the
Mortgage Loans, the Mortgage Loan Purchase Agreement or in any Basic
Document, if any such action would materially and adversely affect the
interests of the Bondholders.
Section 3.10 ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will deliver to
the Indenture Trustee, by March 1 of each year commencing with the calendar year
2006, an Officer's Certificate stating, as to the Authorized Officer signing
such Officer's Certificate, that:
(i) a review of the activities of the Issuer during the previous
calendar year and of its performance under this Indenture has been made
under such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has complied with all conditions and covenants under
this Indenture throughout such year, or, if there has been a default in its
compliance with any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and status thereof.
Section 3.11 [RESERVED].
Section 3.12 REPRESENTATIONS AND WARRANTIES CONCERNING THE MORTGAGE LOANS.
The Indenture Trustee, as pledgee of the Mortgage Loans, has the benefit of the
representations and warranties made by the Seller in the Mortgage Loan Purchase
Agreement concerning the Seller and the Mortgage Loans to the same extent as
though such representations and warranties were made directly to the Indenture
Trustee. If a Responsible Officer of the Indenture Trustee has actual knowledge
of any breach of any representation or warranty made by the Seller in the
Mortgage Loan Purchase Agreement, the Indenture Trustee shall promptly notify
the Seller of such finding and the Seller's obligation to cure such defect or
repurchase or substitute for the related Mortgage Loan.
Section 3.13 AMENDMENTS TO SERVICING AGREEMENT. The Issuer covenants with
the Indenture Trustee that it will not enter into any amendment or supplement to
the Servicing Agreement without the prior written consent of the Indenture
Trustee.
Section 3.14 MASTER SERVICER AS AGENT AND BAILEE OF THE INDENTURE TRUSTEE.
Solely for purposes of perfection under Section 9-305 of the Uniform Commercial
Code or other similar applicable law, rule or regulation of the state in which
such property is held by the Master Servicer, the Issuer and the Indenture
Trustee hereby acknowledge that the Master Servicer is acting as 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 3.15 INVESTMENT COMPANY ACT. The Issuer shall not become an
"investment company" or be under the "control" of an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (or any
successor or amendatory statute), and the rules and regulations thereunder
(taking into account not only the general definition of the term "investment
company" but also any available exceptions to such general definition);
PROVIDED, HOWEVER, that the Issuer shall be in compliance with this Section 3.15
if it shall have obtained an order exempting it from regulation as an
"investment company" so long as it is in compliance with the conditions imposed
in such order.
Section 3.16 ISSUER MAY CONSOLIDATE, ETC. (a) The Issuer shall not
consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any state or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form reasonably
satisfactory to the Indenture Trustee, the due and punctual payment of the
principal of and interest on all Bonds, and the payment of the Bond
Insurance Premium and all other amounts payable to the Bond Insurer, the
Indenture Trustee and the Derivative Contract Counterparties, the payment
to the Certificate Paying Agent of all amounts due to the
Certificateholders, and the performance or observance of every agreement
and covenant of this Indenture on the part of the Issuer to be performed or
observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Event of
Default shall have occurred and be continuing;
(iii) the Rating Agencies shall have notified the Issuer that such
transaction shall not cause the rating of the Bonds to be reduced,
suspended or withdrawn or to be considered by either Rating Agency to be
below investment grade;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered a copy thereof to the Indenture Trustee) to the effect that
such transaction will not (A) result in a "substantial modification" of the
Bonds under Treasury Regulation section 1.1001-3, or adversely affect the
status of the Bonds as indebtedness for federal income tax purposes, or (B)
if 100% of the Certificates are not owned by IMH Assets Corp., cause the
Trust to be subject to an entity level tax for federal income tax purposes;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for or
relating to such transaction have been complied with (including any filing
required by the Exchange Act), and that such supplemental indenture is
enforceable.
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the properties
and assets of the Issuer, the conveyance or transfer of which is hereby
restricted, shall (A) be a United States citizen or a Person organized and
existing under the laws of the United States of America or any state
thereof, (B) expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form satisfactory to
the Indenture Trustee, the due and punctual payment of the principal of and
interest on all Bonds and the payment of the Bond Insurance Premium and all
other amounts payable to the Bond Insurer and the Derivative Contract
Counterparties 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 and the Bond Insurer against and from any loss, liability
or expense arising under or related to this Indenture and the Bonds and (E)
expressly agree by means of such supplemental indenture that such Person
(or if a group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person) required by
the Exchange Act in connection with the Bonds;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agencies shall have notified the Issuer that such
transaction shall not cause the rating of the Bonds to be reduced,
suspended or withdrawn;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered a copy thereof to the Indenture Trustee) to the effect that
such transaction will not (A) result in a "substantial modification" of the
Bonds under Treasury Regulation section 1.1001-3, or adversely affect the
status of the Bonds as indebtedness for federal income tax purposes, or (B)
if 100% of the Certificates are not owned by IMH Assets Corp., cause the
Trust to be subject to an entity level tax for federal income tax purposes;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
Section 3.17 SUCCESSOR OR TRANSFEREE. (a) Upon any consolidation or merger
of the Issuer in accordance with Section 3.16(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.16(b), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Bonds immediately upon the delivery of written
notice to the Indenture Trustee of such conveyance.
Section 3.18 NO OTHER BUSINESS. The Issuer shall not engage in any business
other than financing, purchasing, owning and selling and managing the Mortgage
Loans and the issuance of the Bonds and Certificates in the manner contemplated
by this Indenture and the Basic Documents and all activities incidental thereto.
Section 3.19 NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Bonds.
Section 3.20 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by this Indenture or the Basic Documents, the Issuer shall not make
any loan or advance or credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment or performance on any
obligation or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any other Person.
Section 3.21 CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.22 DETERMINATION OF BOND INTEREST RATE. On each Interest
Determination Date the Indenture Trustee shall determine One-Month LIBOR and the
related Bond Interest Rate for each Class of Bonds (other than the Class A-IO
Bonds) for the following Accrual Period and shall inform the Issuer, the Master
Servicer, and the Depositor at their respective facsimile numbers given to the
Indenture Trustee in writing thereof. The establishment of One-Month LIBOR on
each Interest Determination Date by the Indenture Trustee and the Indenture
Trustee's calculation of the rate of interest applicable to each Class of Bonds
(other than the Class A-IO Bonds) for the related Accrual Period shall (in the
absence of manifest error) be final and binding.
Section 3.23 RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; PROVIDED, HOWEVER, that
the Issuer may make, or cause to be made, (x) distributions and payments to the
Owner Trustee, the Indenture Trustee, Bondholders and the Certificateholders as
contemplated by, and to the extent funds are available for such purpose under
this Indenture and the Trust Agreement and (y) payments to the Master Servicer
and the Subservicers pursuant to the terms of the Servicing Agreement. The
Issuer will not, directly or indirectly, make payments to or distributions from
the Collection Account except in accordance with this Indenture and the Basic
Documents.
Section 3.24 NOTICE OF EVENTS OF DEFAULT. The Issuer shall give the
Indenture Trustee, the Bond Insurer and the Rating Agencies prompt written
notice of each Event of Default hereunder and under the Trust Agreement.
Section 3.25 FURTHER INSTRUMENTS AND ACTS. Upon request of the Indenture
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 3.26 STATEMENTS TO BONDHOLDERS. On each Payment Date, the Indenture
Trustee and the Certificate Registrar shall make available on the Indenture
Trustee's website, XXXXX://XXX.XXX.XX.XXX/XXXX, to the Bond Insurer and to each
Bondholder and Certificateholder the most recent statement prepared by the
Master Servicer pursuant to Section 4.01 of the Servicing Agreement.
Section 3.27 [RESERVED].
Section 3.28 [Reserved].
Section 3.29 CERTAIN REPRESENTATIONS REGARDING THE TRUST ESTATE.
(a) With respect to that portion of the Collateral described in clauses (a)
through (f) 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, as trustee for the Bondholders, which security interest
is prior to all other liens, and is enforceable as such as against
creditors of and purchasers from the Issuer.
(ii) The Collateral constitutes "deposit accounts" or "instruments,"
as applicable, within the meaning of the applicable UCC.
(iii) The Issuer owns and has good and marketable title to the
Collateral, free and clear of any lien, claim or encumbrance of any Person.
(iv) The Issuer has taken all steps necessary to cause the Indenture
Trustee to become the account holder of the Collateral.
(v) Other than the security interest granted to the Indenture Trustee
pursuant to this Indenture, the Issuer has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Collateral.
(vi) The Collateral is not in the name of any Person other than the
Issuer or the Indenture Trustee. The Issuer has not consented to the bank
maintaining the Collateral to comply with instructions of any Person other
than the Indenture Trustee.
(b) With respect to that portion of the Collateral described in clause (g),
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, as trustee for the Bondholders, 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 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 3.29 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 3.30 GUARANTY AGREEMENT; PAYMENTS UNDER THE GUARANTY AGREEMENT. On
the Closing Date, the Guaranty Agreement shall be assigned to the Indenture
Trustee on behalf of the Trust. The Indenture Trustee shall enforce the Guaranty
Agreement 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 Guaranty Agreement 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 Guaranty Agreement, such payment shall be deposited by the
Indenture Trustee into the Payment Account for distribution to the Class A-2
Bondholders pursuant to Section 3.05 hereof. On each Payment Date, any payments
received by the Indenture Trustee in respect of the Guaranty Agreement shall be
paid to the Holders of the Class A-2 Bonds.
Section 3.31 [Reserved].
Section 3.32 REPLACEMENT DERIVATIVE CONTRACTS. In the event of a default by
a related Derivative Contract Counterparty with respect to the related
Derivative Contracts (a "Derivative Contract Default"), the Issuer, at its
expense, may, but shall not be required to, substitute a new derivative contract
for the existing Derivative Contracts or any other form of similar coverage for
basis risk shortfalls; PROVIDED, HOWEVER, that the timing and mechanism for
receiving payments under such new derivative contracts shall be reasonably
acceptable to the Indenture Trustee. It shall be a condition to substitution of
any new derivative contracts that there be delivered to the Indenture Trustee an
Opinion of Counsel to the effect that such substitution would not (a) result in
a "substantial modification" of the Bonds under Treasury Regulation section
1.1001-3, or adversely affect the status of the Bonds as indebtedness for
federal income tax purposes, or (b) if 100% of the Certificates are not owned by
IMH Assets Corp., cause the Trust to be subject to an entity level tax for
federal income tax purposes.
Section 3.33 [RESERVED].
Section 3.34 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 Balances
of the of the Class B, Class M-6, Class M-5, Class M-4, Class M-3, Class M-2,
Class M-1 Bonds, in that order, and then to the Class A-1, Class A-2, Class A-3W
and Class A-4 Bonds, pro rata, based on the Bond Principal Balances thereof,
until reduced to zero (provided however that any such Realized Loss allocated to
the Class A-1, Class A-2 and Class A-3W Bonds will instead be applied first to
the Class A-4 Bonds). All Realized Losses allocated to a Class of Bonds will be
allocated in proportion to the Percentage Interests evidenced thereby.
Section 3.35 [RESERVED].
Section 3.36 [RESERVED].
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 evidencing the same Class and
aggregate Percentage Interests.
Subject to the foregoing, at the option of the Bondholders, Bonds may be
exchanged for other Bonds of like tenor and in authorized initial Bond Principal
Balances evidencing the same Class and aggregate Percentage Interests upon
surrender of the Bonds to be exchanged at the Corporate Trust Office of the Bond
Registrar. Whenever any Bonds are so surrendered for exchange, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver the Bonds which
the Bondholder making the exchange is entitled to receive. Each Bond presented
or surrendered for registration of transfer or exchange shall (if so required by
the Bond Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form reasonably satisfactory to the Bond Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing
with such signature guaranteed by a commercial bank or trust company located or
having a correspondent located in the city of New York. Bonds delivered upon any
such transfer or exchange will evidence the same obligations, and will be
entitled to the same rights and privileges, as the Bonds surrendered.
No service charge shall be made for any registration of transfer or
exchange of Bonds, but the Bond Registrar shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of Bonds.
The Issuer hereby appoints the Indenture Trustee as (i) Certificate
Registrar to keep at its Corporate Trust Office a Certificate Register pursuant
to Section 3.09 of the Trust Agreement in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges thereof pursuant to
Section 3.05 of the Trust Agreement and (ii) Bond Registrar under this
Indenture. The Indenture Trustee hereby accepts such appointments.
Section 4.03 MUTILATED, DESTROYED, LOST OR STOLEN BONDS. If (i) any
mutilated Bond is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Bond, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Bond Registrar or
the Indenture Trustee that such Bond has been acquired by a bona fide purchaser,
and provided that the requirements of Section 8-405 of the UCC are met, the
Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Bond, a replacement Bond; PROVIDED, HOWEVER, that if
any such destroyed, lost or stolen Bond, but not a mutilated Bond, shall have
become or within seven days shall be due and payable, instead of issuing a
replacement Bond, the Issuer may pay such destroyed, lost or stolen Bond when so
due or payable without surrender thereof. If, after the delivery of such
replacement Bond or payment of a destroyed, lost or stolen Bond pursuant to the
proviso to the preceding sentence, a bona fide purchaser of the original Bond in
lieu of which such replacement Bond was issued presents for payment such
original Bond, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Bond (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Bond from such Person to whom such
replacement Bond was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
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;
(ii) the Bond Registrar, the Paying Agent and the Indenture Trustee
shall be entitled to deal with the Depository for all purposes of this
Indenture (including the payment of principal of and interest on the Bonds
and the giving of instructions or directions hereunder) as the sole Holder
of the Bonds, and shall have no obligation to the Beneficial Owners of the
Bonds;
(iii) to the extent that the provisions of this Section 4.06 conflict
with any other provisions of this Indenture, the provisions of this Section
4.06 shall control;
(iv) the rights of Beneficial Owners shall be exercised only through
the Depository and shall be limited to those established by law and
agreements between such Owners of Bonds and the Depository and/or the
Depository Participants. Unless and until Definitive Bonds are issued
pursuant to Section 4.08, the initial Depository will make book-entry
transfers among the Depository Participants and receive and transmit
payments of principal of and interest on the Bonds to such Depository
Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Bonds evidencing a
specified percentage of the Bond Principal Balances of the Bonds, the
Depository shall be deemed to represent such percentage with respect to the
Bonds only to the extent that it has received instructions to such effect
from Beneficial Owners and/or Depository Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the Bonds and has delivered such instructions to the Indenture
Trustee.
Section 4.07 NOTICES TO DEPOSITORY. Whenever a notice or other
communication to the Bondholders is required under this Indenture, unless and
until Definitive Bonds shall have been issued to Beneficial Owners pursuant to
Section 4.08, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Bonds to the
Depository, and shall have no obligation to the Beneficial Owners.
Section 4.08 DEFINITIVE BONDS. If (i) the Indenture Trustee determines that
the Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Bonds and the Indenture Trustee is unable
to locate a qualified successor, (ii) the Indenture Trustee elects to terminate
the book-entry system through the Depository or (iii) after the occurrence of an
Event of Default, Beneficial Owners of Bonds representing beneficial interests
aggregating at least a majority of the Bond Principal Balances of the Bonds
advise the Depository in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Beneficial
Owners, then the Depository shall notify all Beneficial Owners and the Indenture
Trustee of the occurrence of any such event and of the availability of
Definitive Bonds to Beneficial Owners requesting the same. Upon surrender to the
Indenture Trustee of the typewritten Bonds representing the Book-Entry Bonds by
the Depository, accompanied by registration instructions, the Issuer shall
execute and the Indenture Trustee shall authenticate the Definitive Bonds in
accordance with the instructions of the Depository. None of the Issuer, the Bond
Registrar or the Indenture Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Bonds, the
Indenture Trustee shall recognize the Holders of the Definitive Bonds as
Bondholders.
Section 4.09 TAX TREATMENT. The Issuer has entered into this Indenture, and
the Bonds will be issued with the intention that, for federal, state and local
income, single business and franchise tax purposes, the Bonds will qualify as
indebtedness. The Issuer and the Indenture Trustee (in accordance with Section
6.06 hereof), by entering into this Indenture, and each Bondholder, by its
acceptance of its Bond (and each Beneficial Owner by its acceptance of an
interest in the applicable Book-Entry Bond), agree to treat the Bonds for
federal, state and local income, single business and franchise tax purposes as
indebtedness.
Section 4.10 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
cease to be of further effect with respect to the Bonds except as to (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Bonds, (iii) rights of Bondholders (and the Bond
Insurer, as subrogee of the Class A-3W 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 and immunities of the Indenture Trustee
hereunder including under Section 6.07 and the obligations of the Indenture
Trustee under Section 4.11, (vi) the right of the related Derivative Contract
Counterparty to receive the related Net Derivative Fee and (vii) the rights of
Bondholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Bonds and shall release and deliver the Collateral to or upon the
order of the Issuer, when
(A) either
(1) all Bonds theretofore authenticated and delivered (other than (i)
Bonds that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 4.03 hereof and (ii) Bonds for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 3.03) have been delivered to the
Indenture Trustee for cancellation; or
(2) all Bonds not theretofore delivered to the Indenture Trustee for
cancellation
a. have become due and payable,
b. will become due and payable at the Final Scheduled Payment
Date within one year, or
c. have been called for early redemption and the Trust has been
terminated pursuant to Section 8.07 hereof,
and the Issuer, in the case of a. or b. above, has irrevocably deposited or
caused to be irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness on
such Bonds then outstanding not theretofore delivered to the Indenture Trustee
for cancellation when due on the Final Scheduled Payment Date or other final
Payment Date and has delivered to the Indenture 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 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 4.13 TEMPORARY BONDS. Pending the preparation of any Definitive
Bonds, the Issuer may execute and upon its written direction, the Indenture
Trustee may authenticate and make available for delivery, temporary Bonds that
are printed, lithographed, typewritten, photocopied or otherwise produced, in
any denomination, substantially of the tenor of the Definitive Bonds in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Bonds may
determine, as evidenced by their execution of such Bonds.
If temporary Bonds are issued, the Issuer will cause Definitive Bonds to be
prepared without unreasonable delay. After the preparation of the Definitive
Bonds, the temporary Bonds shall be exchangeable for Definitive Bonds upon
surrender of the temporary Bonds at the office of the Indenture Trustee's agent
located at DTC Transfer Services, located at 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 4.14 [Reserved]
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 non-exempt 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, including the Derivative Contract Counterparties, any owner
of the Certificates, or any of their Affiliates being a "Party in Interest"
(within the meaning of ERISA) or Disqualified Person (within the meaning of the
Code) with respect to such holder or Beneficial Owner that is a Plan 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 Department of Labor regulation 29 C.F.R. ss. 2510.3-101, 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, any Underwriter, the Owner Trustee, the Indenture
Trustee, the Master Servicer or any successor servicer which opines that the
acquisition, holding and transfer of such Bond or interest therein is
permissible under applicable law, will not constitute or result in a non-exempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Issuer, the Seller, the Depositor, any Underwriter, the Owner
Trustee, the Indenture Trustee, the Master Servicer or any successor servicer to
any obligation in addition to those undertaken in the Indenture.
ARTICLE V
Default and Remedies
Section 5.01 EVENTS OF DEFAULT. The Issuer shall deliver to the Indenture
Trustee and the Bond Issurer, within five days after learning of the occurrence
of an Event of Default, written notice in the form of an Officer's Certificate
of any event which with the giving of notice and the lapse of time would become
an Event of Default under clause (iii) or (iv) of the definition of "Event of
Default", its status and what action the Issuer is taking or proposes to take
with respect thereto. The Indenture Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer has actual
knowledge thereof or unless written notice of such Event of Default is received
by a Responsible Officer and such notice references the Bonds, the Trust Estate
or this Indenture.
Section 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee at the written direction of the Holders of Bonds representing
not less than a majority of the aggregate Bond Principal Balance of the Bonds
may declare the Bonds to be immediately due and payable, by a notice in writing
to the Issuer (and to the Indenture Trustee if such notice is given by the
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, the Holders of the Bonds representing not less than a
majority of the aggregate Bond Principal Balance of the Bonds (other than the
Class A-IO Bonds) and not less than a majority of the aggregate 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;
(B) all sums paid or advanced by the Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and
counsel; and
(C) all amounts owed to the Derivative Contract Counterparties;
(ii) all Events of Default, other than the nonpayment of the principal
of the Bonds that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) The Issuer covenants that if (i) default is made in the payment of any
interest on any Bond when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment of
the principal of or any installment of the principal of any Bond when the same
becomes due and payable, the Issuer shall, upon demand of the Indenture Trustee,
at the direction of the Holders of a majority of the aggregate Bond Principal
Balances of the Bonds, pay to the Indenture Trustee, for the benefit of the
Holders of Bonds, the whole amount then due and payable on the Bonds for
principal and interest, with interest at the applicable Bond Interest Rate upon
the overdue principal, and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, subject to the provisions of Section 10.16 hereof may institute a
Proceeding for the collection of the sums so due and unpaid, and may prosecute
such Proceeding to judgment or final decree, and may enforce the same against
the Issuer or other obligor upon the Bonds and collect in the manner provided by
law out of the property of the Issuer or other obligor the Bonds, wherever
situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture Trustee,
subject to the provisions of Section 10.16 hereof may, as more particularly
provided in Section 5.04 hereof, in its discretion, proceed to protect and
enforce its rights and the rights of the Bondholders, by such appropriate
Proceedings, as directed in writing by the Holders of a majority of the
aggregate Bond Principal Balances of the Bonds, to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Bonds or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Bonds, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, as directed in writing by the
Holders of a majority of the aggregate Bond Principal Balances of the Bonds,
irrespective of whether the principal of any Bonds shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Bonds and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith) and of the
Bondholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Bonds in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Bondholders and of the Indenture Trustee on
their behalf, and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Bonds allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Bondholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Bondholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee and all amounts due to the Bond Insurer.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Bondholder any plan of reorganization, arrangement, adjustment or
composition affecting the Bonds or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Bondholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Bonds, may be enforced by the Indenture Trustee without the
possession of any of the Bonds or the production thereof in any trial or other
Proceedings relative thereto, and any such action or proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Bonds, subject to Section 5.05 hereof.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Bonds, and it shall not be necessary to
make any Bondholder a party to any such Proceedings.
Section 5.04 REMEDIES; PRIORITIES. (a) If an Event of Default shall have
occurred and be continuing and if an acceleration has been declared and not
rescinded pursuant to Section 5.02 hereof, the Indenture Trustee subject to the
provisions of Section 10.16 hereof may, and shall, at the written direction of
the Holders of a majority of the aggregate Bond Principal Balances of the Bonds,
do one or more of the following (subject to Section 5.05 hereof):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then payable on the Bonds or under
this Indenture with respect thereto, whether by declaration or otherwise
enforce any judgment obtained, and collect from the Issuer and any other
obligor upon such Xxxxx monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies
of the Indenture Trustee and the Holders of the Bonds; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
PROVIDED, HOWEVER, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, unless (A) the
Indenture Trustee obtains the consent of the Holders of 100% of the aggregate
Bond Principal Balance of the Bonds and 50% of the aggregate 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 such Bonds for principal and interest and to reimburse the
Bond Insurer for any amounts drawn under the Bond Insurance Policy and any other
amounts due to the Bond Insurer under the Bond Insurance Policy or (C) the
Indenture Trustee determines that the Mortgage Loans will not continue to
provide sufficient funds for the payment of principal of and interest on the
applicable Bonds as they would have become due if the Bonds had not been
declared due and payable, and the Indenture Trustee obtains the consent of the
Holders of a majority of the aggregate Bond Principal Balance of the Bonds and a
majority of the aggregate 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 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 with respect to
the Mortgage Loans pursuant to this Article V, it shall pay out the money or
property in the following order; provided, however, that any amounts
representing payments from the Bond Insurer shall only be used to pay interest
and principal to the Class A-3W Bondholders pursuant to clauses FOURTH and FIFTH
below:
FIRST: to the Indenture Trustee for amounts due under Section 6.07
hereof;
SECOND: to the related Derivative Contract Counterparty, any amounts
owed under the Derivative Contracts, other than any Additional Derivative
Contract Counterparty Payment;
THIRD: to the Bond Insurer, provided no Bond Insurer Default exists,
with respect to any Bond Insurance Premium then due to the extent unpaid
pursuant to the Servicing Agreement;
FOURTH: to the Bondholders for amounts due and unpaid on the Bonds
(including Unpaid Interest Shortfalls but not including any Basis Risk
Shortfall Carry-Forward Amounts) with respect to interest, first,
concurrently, to the Class A-1, Class A-2, Class A-3W, Class A-4 and Class
A-IO Bonds and second, sequentially, to the Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6 and Class B Bonds according to the
amounts due and payable on the Bonds for interest;
FIFTH: to Bondholders for amounts due and unpaid on the Bonds (other
than the Class A-IO Bonds) with respect to principal, and to each
Bondholder, pro rata, without preference or priority of any kind, according
to the amounts due and payable on such Bonds for principal, until the Bond
Principal Balance of each such Class is reduced to zero;
SIXTH: to the payment of all amounts due and owing to the Bond Insurer
under the Bond Insurance Policy (including any Premium Amount not paid
pursuant to clause THIRD above);
SEVENTH: to the Bondholders (other than the Holders of the Class A-IO
Bonds), first, concurrently, to the Class A-1 Bonds and Class A-2 Bonds and
second, sequentially, to the Class A-3W, Class A-4, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6 and Class B Bonds the amount of
any related Allocated Realized Loss Amount not previously paid;
EIGHTH: to the Bondholders for amounts due and unpaid on the Bonds
with respect to any related Unpaid Interest Shortfalls, first,
concurrently, to the Class A-1, Class A-2, Class A-3W and Class A-4 Bonds
and second, sequentially, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6 and Class B Bonds, according to the amounts due and payable
on the Bonds with respect thereto, from amounts available in the Trust
Estate for the Bondholders;
NINTH: to the Bondholders for amounts due and unpaid on the Bonds with
respect to any related Basis Risk Shortfall Carry-Forward Amounts, first,
concurrently, to the Class A-1, Class A-2, Class A-3W and Class A-4 Bonds
and second, sequentially, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6 and Class B Bonds, in that order, according to the amounts
due and payable on the Bonds with respect thereto, from amounts available
in the Trust Estate for the Bondholders to the extent not covered by the
Derivative Contracts; provided, however, that any Basis Risk Shortfall
Carry-Forward Amount on the Class A-2 Bonds shall be directed to the
related Derivative Contract Counterparty unless a Class A-2 Derivative
Contract Counterparty Termination Event is in effect; provided, however,
that in such event the Holder of the Class A-2 Bonds will be entitled to
receive any Basis Risk Shortfall Carry-Forward Amounts that arise on and
after the Payment Date when the Class A-2 Derivative Contract Counterparty
Termination Event occurs;
TENTH: to the related Derivative Contract Counterparty, any Additional
Derivative Contract Counterparty Payment; and
ELEVENTH: to the payment of the remainder, if any to the Certificate
Paying Agent on behalf of the Issuer or to any other person legally
entitled thereto.
The Indenture Trustee may fix a record date and Payment Date for any
payment to Bondholders pursuant to this Section 5.04. At least 15 days before
such record date, the Indenture Trustee shall mail to each Bondholder a notice
that states the record date, the Payment Date and the amount to be paid.
Section 5.05 OPTIONAL PRESERVATION OF THE TRUST ESTATE. If the Bonds have
been declared to be due and payable under Section 5.02 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may elect to take and maintain possession of the
Trust Estate. It is the desire of the parties hereto and the Bondholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Bonds and other obligations of the Issuer, including payment to
the Bond Insurer, and the Indenture Trustee, unless directed otherwise by the
Bond Insurer, shall take such desire into account when determining whether or
not to take and maintain possession of the Trust Estate. In determining whether
to take and maintain possession of the Trust Estate, the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust Estate for such purpose.
Section 5.06 LIMITATION OF SUITS. No Bondholder 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 an aggregate 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 Bond Principal Balances of the Bonds and a majority of the
aggregate 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 or Notional Amounts of the Bonds,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
Section 5.07 UNCONDITIONAL RIGHTS OF BONDHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST. Notwithstanding any other provisions in this Indenture, the Holder of
any Bond shall have the right, which is absolute and unconditional, to receive
payment of the interest and, with respect to all of the Bonds other than the
Class A-IO Bonds, principal, if any, on such Bond on or after the respective due
dates thereof expressed in such Bond or in this Indenture and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Bondholder.
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 Bonds (other than the Class A-IO Bonds)
and a majority of the aggregate 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 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);
and
(iii) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction of the Holders of Bonds representing a majority of the Bond
Principal Balances or Notional Amounts of the Bonds.
Notwithstanding the rights of Bondholders set forth in this Section 5.11 the
Indenture Trustee need not take any action that it determines might involve it
in liability.
Section 5.12 WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Bonds as provided in Section 5.02 hereof,
the Holders of Bonds representing not less than a majority of the aggregate Bond
Principal Balance or Notional Amounts of the Bonds may waive any past Event of
Default and its consequences except an Event of Default (a) with respect to
payment of principal of or interest on any of the Bonds, (b) in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Bond or (c) the waiver of which would materially
and adversely affect the interests of the Bond Insurer or modify its obligations
under the Bond Insurance Policy. In the case of any such waiver, the Issuer, the
Indenture Trustee and the Holders of the Bonds shall be restored to their former
positions and rights hereunder, respectively, but no such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereto.
Upon any such waiver, any Event of Default arising therefrom shall be
deemed to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereto.
Section 5.13 UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Bond and each Beneficial Owner of any interest therein by
such Xxxxxx's or Beneficial Owner's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Bondholder, or group of
Bondholders, in each case holding in the aggregate more than 10% of the Bond
Principal Balances of the Bonds (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 shall not be
exhausted by any one or more Sales as to any portion of the Trust Estate
remaining unsold, but shall continue unimpaired until the entire Trust Estate
shall have been sold or all amounts payable on the Bonds and under this
Indenture and under the Bond Insurance Policy shall have been paid. The
Indenture Trustee may from time to time postpone any public Sale by public
announcement made at the time and place of such Sale. The Indenture Trustee
hereby expressly waives its right to any amount fixed by law as compensation for
any Sale.
(b) The Indenture Trustee shall not in any private Sale sell the Trust
Estate, or any portion thereof, unless
(1) the proceeds of such Sale would be not less than the entire amount
which would be payable to the Bondholders under the Bonds and the Bond
Insurer in respect of amounts drawn under the Bond Insurance Policy, in
full payment thereof in accordance with Section 5.02 hereof, on the Payment
Date next succeeding the date of such Sale, or
(2) the proceeds of such Sale would be not less than the entire amount
which would be payable to the Bondholders under the Bonds and the Bond
Insurer in respect of amounts drawn under the Bond Insurance Policy, in
full payment thereof in accordance with Section 5.02 hereof, on the Payment
Date next succeeding the date of such Sale, or
(3) the Indenture Trustee determines that the conditions for retention
of the Trust Estate set forth in Section 5.05 hereof cannot be satisfied
(in making any such determination, the Indenture Trustee may rely upon an
opinion of an Independent investment banking firm obtained and delivered as
provided in Section 5.05 hereof) the Holders of Bonds representing at least
100% of the Bond Principal Balances of the Bonds (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)
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 appropriately stamped to show such partial payment;
(2) the Indenture Trustee may bid for and acquire the property offered
for Sale in connection with any Sale thereof, and, subject to any
requirements of, and to the extent permitted by, applicable law in
connection therewith, may purchase all or any portion of the Trust Estate
in a private sale, and, in lieu of paying cash therefor, may make
settlement for the purchase price by crediting the gross Sale price against
the sum of (A) the amount which would be distributable to the Holders of
the Bonds and Holders of Certificates and amounts distributable to the Bond
Insurer as a result of such Sale in accordance with Section 5.04(b) hereof
on the Payment Date next succeeding the date of such Sale and (B) the
expenses of the Sale and of any Proceedings in connection therewith which
are reimbursable to it, without being required to produce the Bonds in
order to complete any such Sale or in order for the net Sale price to be
credited against such Bonds, and any property so acquired by the Indenture
Trustee shall be held and dealt with by it in accordance with the
provisions of this Indenture;
(3) the Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance, prepared by the Issuer and satisfactory to the
Indenture Trustee, transferring its interest in any portion of the Trust
Estate in connection with a Sale thereof;
(4) the Indenture Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Issuer to transfer and convey its interest in
any portion of the Trust Estate in connection with a Sale thereof, and to
take all action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any monies.
Section 5.16 ACTION ON BONDS. The Indenture Trustee's right to seek and
recover judgment on the Bonds or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Bondholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.04(b) hereof.
Section 5.17 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS. (a)
Promptly following a request from the Indenture Trustee to do so, the Issuer in
its capacity as Holder of the Mortgage Loans, shall take all such lawful action
as the Indenture Trustee may request to cause the Issuer to compel or secure the
performance and observance by the Seller and the Master Servicer, as applicable,
of each of their obligations to the Issuer under or in connection with the
Mortgage Loan Purchase Agreement and the Servicing Agreement, and to exercise
any and all rights, remedies, powers and privileges lawfully available to the
Issuer under or in connection with the Mortgage Loan Purchase Agreement and the
Servicing Agreement to the extent and in the manner directed by the Indenture
Trustee as pledgee of the Mortgage Loans, including the transmission of notices
of default on the part of the Seller or the Master Servicer thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by the Seller or the Master Servicer of each of their
obligations under the Mortgage Loan Purchase Agreement and the Servicing
Agreement.
(b) The Indenture Trustee, as pledgee of the Mortgage Loans may, and at the
direction (which direction shall be in writing or by telephone (confirmed in
writing promptly thereafter), of the Holders of 66-2/3% of the Bond Principal
Balances of the Bonds (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 Purchase Agreement and
the Servicing Agreement, including the right or power to take any action to
compel or secure performance or observance by the Seller or the Master Servicer,
as the case may be, of each of their obligations to the Issuer thereunder and to
give any consent, request, notice, direction, approval, extension or waiver
under the Mortgage Loan Purchase Agreement and the Servicing Agreement, as the
case may be, and any right of the Issuer to take such action shall not be
suspended.
ARTICLE VI
The Indenture Trustee
Section 6.01 DUTIES OF INDENTURE TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Indenture Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 6.01;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it from Bondholders or from the Issuer, which they
are entitled to give under the Basic Documents.
(d) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other trust funds except to the extent required by law or the terms of this
Indenture or the Trust Agreement.
(f) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
(h) The Indenture Trustee shall act in accordance with Sections 6.03 and
6.04 of the Servicing Agreement and shall act as successor to the Master
Servicer or appoint a successor Master Servicer in accordance with Section 6.02
of the Servicing Agreement.
Section 6.02 RIGHTS OF INDENTURE TRUSTEE. (a) The Indenture Trustee may
rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Indenture Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; PROVIDED, HOWEVER, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
Opinion of Counsel with respect to legal matters relating to this Indenture and
the Bonds shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) For the limited purpose of effecting any action to be undertaken by the
Indenture Trustee, but not specifically as a duty of the Indenture Trustee in
the Indenture, the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder, either directly or by or through
agents, attorneys, custodians or nominees appointed with due care, and shall not
be responsible for any willful misconduct or negligence on the part of any
agent, attorney, custodian or nominee so appointed.
(g) The Indenture Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Indenture Trustee's
economic self-interest for (i) serving as investment adviser, administrator,
shareholder servicing agent, custodian or sub-custodian with respect to certain
of the Eligible Investments, (ii) using Affiliates to effect transactions in
certain Eligible Investments and (iii) effecting transactions in certain
Xxxxxxxx Investments. Such compensation shall not be considered an amount that
is reimbursable or payable to the Indenture Trustee pursuant to Sections
3.05(d), 3.05(g), 5.04(b), 6.07 or 8.02(c) hereunder or (iii) out of Available
Funds.
(h) In order to comply with its duties under the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 ("U.S.A. Patriot Act"), the Indenture Trustee shall obtain
and verify certain information and documentation from the other party to this
Indenture, including, but not limited to, such party's name, address, and other
identifying information.
(i) The Indenture Trustee shall have no obligations other than as
specifically stated in this Indenture or as stated in the relevant sections of
the TIA or other applicable law.
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.
Section 6.04 INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Bonds, it shall not be accountable for the
Issuer's use of the proceeds from the Bonds, and it shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Bonds or in the Bonds other than the Indenture
Trustee's certificate of authentication.
Section 6.05 NOTICE OF EVENT OF DEFAULT. Subject to Section 5.01, the
Indenture Trustee shall promptly mail to each Bondholder and the Bond Insurer
notice of the Event of Default after it is known to a Responsible Officer of the
Indenture Trustee, unless such Event of Default shall have been waived or cured.
Except in the case of an Event of Default in payment of principal of or interest
on any Bond, the Indenture Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Bondholders.
Section 6.06 REPORTS BY INDENTURE TRUSTEE TO BONDHOLDERS AND TAX
ADMINISTRATION. The Indenture Trustee shall deliver to each Bondholder such
information as may be required to enable such Holder to prepare its federal and
state income tax returns.
The Indenture Trustee shall prepare and file (or cause to be prepared and
filed), on behalf of the Owner Trustee, all tax returns (if any) and information
reports, tax elections and such annual or other reports of the Issuer as are
necessary for preparation of tax returns and information reports as provided in
Section 5.03 of the Trust Agreement, including without limitation Form 1099. All
tax returns and information reports shall be signed by the Owner Trustee as
provided in Section 5.03 of the Trust Agreement.
Section 6.07 COMPENSATION AND INDEMNITY. The Issuer shall pay to the
Indenture Trustee on each Payment Date reasonable compensation for its services.
On each Payment Date, the Indenture Trustee shall pay itself from amounts
available therefore on deposit in the Payment Account for such Payment Date all
amounts owing to the Indenture Trustee hereunder (including amounts owing from
the Issuer for indemnification and otherwise) as provided in Section
3.05(d)(vi), Section 5.04(b) and Section 8.02(c) hereof and Appendix A hereto.
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.
The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section 6.07 shall survive the discharge of this Indenture and the termination
or resignation of the Indenture Trustee. When the Indenture Trustee incurs
expenses after the occurrence of an Event of Default with respect to the Issuer,
the expenses are intended to constitute expenses of administration under Title
11 of the United States Code or any other applicable federal or state
bankruptcy, insolvency or similar law.
Section 6.08 REPLACEMENT OF INDENTURE TRUSTEE. No resignation or removal of
the Indenture Trustee and no appointment of a successor Indenture Trustee shall
become effective until the acceptance of appointment by the successor Indenture
Trustee pursuant to this Section 6.08. The Indenture Trustee may resign at any
time by so notifying the Issuer. The Holders of a majority of Bond Principal
Balances of the Bonds may remove the Indenture Trustee by so notifying the
Indenture Trustee and may appoint a successor Indenture Trustee. The Issuer
shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11 hereof;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of the Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Bondholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Holders of a majority of Bond Principal Balances of
the Bonds may petition any court of competent jurisdiction for the appointment
of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
Section 6.09 SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
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 no 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;
(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;
(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, A-2 and A-3 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.
Section 6.16 EXECUTION OF DERIVATIVE CONTRACTS. The Issuer hereby directs
the Indenture Trustee to enter into and execute the Derivative Contracts and the
Special Certificate Cap Contract and make all representations and warranties
contained therein on behalf of the Trust. The Indenture Trustee hereby
acknowledges receipt by it of the Derivative Contracts and the Special
Certificate Cap Contract. Upon receipt thereof from the counterparty under the
Derivative Contracts and the Special Certificate Cap Contract, the Indenture
Trustee shall deposit into the Payment Account an amount equal to all amounts
actually received under the Derivative Contracts and the Special Certificate Cap
Contract and not previously deposited into the Payment Account.
ARTICLE VII
Bondholders' Lists and Reports
Section 7.01 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
BONDHOLDERS. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (a) not more than five days after each Record Date, a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses of
the Holders of Bonds as of such Record Date, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; PROVIDED, HOWEVER,
that so long as the Indenture Trustee is the Bond Registrar, no such list shall
be required to be furnished to the Indenture Trustee.
Section 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO BONDHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Bonds contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.01
hereof and the names and addresses of Holders of Bonds received by the Indenture
Trustee in its capacity as Bond Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in such Section 7.01 upon receipt of a new list
so furnished.
(b) Bondholders may communicate pursuant to TIA ss. 312(b) with other
Bondholders with respect to their rights under this Indenture or under the
Bonds.
(c) The Issuer, the Indenture Trustee and the Bond Registrar shall have the
protection of TIA ss. 312(c).
Section 7.03 REPORTS OF ISSUER. (a) Subject to Section 4.06 of the
Servicing Agreement (i) The Indenture Trustee shall file with the Commission on
behalf of the Issuer, with a copy to the Issuer within 15 days before the Issuer
is required to file the same with the Commission, the annual reports and the
information, documents and other reports (or such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) that the Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) The Indenture Trustee shall file with the Commission, on behalf
of the Issuer, in accordance with rules and regulations prescribed from
time to time by the Commission such additional information, documents and
reports with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(iii) The Indenture Trustee shall supply (and the Indenture Trustee
shall transmit by mail to all Bondholders described in TIA ss. 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section 7.03(a) and by
rules and regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
Section 7.04 REPORTS BY INDENTURE TRUSTEE. If required by TIA ss. 313(a),
within 60 days after each January 30 beginning with March 31, 2006, the
Indenture Trustee shall mail to each Bondholder as required by TIA ss. 313(c) a
brief report dated as of such date that complies with TIA ss. 313(a). The
Indenture Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Bondholders shall be
filed by the Indenture Trustee with the Commission via XXXXX and each stock
exchange, if any, on which the Bonds are listed. The Issuer shall notify the
Indenture Trustee if and when the Bonds are listed on any stock exchange.
Section 7.05 STATEMENTS TO BONDHOLDERS. (a) With respect to each Payment
Date, the Indenture Trustee shall make available via the Indenture Trustee's
website xxxxx://xxx.xxx.xx.xxx/xxxx or deliver at the recipient's option to each
Bondholder and each Certificateholder, the Derivative Contract Counterparties,
the Depositor, the Owner Trustee, the Certificate Paying Agent, the Bond Insurer
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, with
respect to the Mortgage Loans, payable to each Class of Bondholders for
such Payment Date, the Basis Risk Shortfall Carry-Forward Amount on each
Class of Bonds for such Payment Date and the aggregate Unpaid Interest
Shortfall on each Class of Bonds for such Payment Date;
(iii) (a) the amount of such distribution to each Class A-1, Class
A-2, Class A-3W, Class A-4, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6 and Class B Bonds applied to reduce the Bond Principal
Balance thereof, and (b) the aggregate amount included therein representing
Principal Prepayments;
(iv) the amount of such distribution to Holders of each Class of Bonds
allocable to interest;
(v) the amount of such distribution to the Certificates;
(vi) if the distribution to the Holders of any Class of Bonds is less
than the full amount that would be distributable to such Holders if there
were sufficient funds available therefor, the amount of the shortfall;
(vii) the number and the aggregate Stated Principal Balance of the
Mortgage Loans as of the end of the related Due Period;
(viii) the aggregate Bond Principal Balance of each Class of Bonds
(other than the Class A-IO Bonds), after giving effect to the amounts
distributed on such Payment Date, separately identifying any reduction
thereof due to Realized Losses other than pursuant to an actual
distribution of principal and the aggregate Bond Principal Balance of all
of the Class A-1, Class A-2, Class A-3W, Class A-4, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6 and Class B Bonds after giving
effect to the distribution of principal on such Payment Date;
(ix) the number and aggregate Stated Principal Balances of Mortgage
Loans (a) as to which the Monthly Payment is delinquent for 31-60 days,
61-90 days, 91 or more days, respectively, (b) in foreclosure and (c) that
have become REO Property, in each case as of the end of the preceding
calendar month;
(x) the Net Derivative Contract Payment Amount;
(xi) the Overcollateralization Increase Amount with respect to each
Loan Group, Overcollateralization Release Amount, Overcollateralization
Target Amount and Overcollateralized Amount, if any, in each case as the
end of the related Payment Date, in each case as determined separately for
each Loan Group;
(xii) the amount of any Advances and Compensating Interest payments;
(xiii) the aggregate Realized Losses with respect to the related
Payment Date and cumulative Realized Losses since the Closing Date;
(xiv) the number and aggregate Stated Principal Balance of Mortgage
Loans repurchased pursuant to the Mortgage Loan Purchase Agreement for the
related Payment Date and cumulatively since the Closing Date;
(xv) the book value of any REO Property;
(xvi) the amount of any Prepayment Interest Shortfalls or Relief Act
Shortfalls for such Payment Date; and
(xvii) the aggregate Stated Principal Balance of Mortgage Loans
purchased pursuant to Section 3.18 of the Servicing Agreement for the
related Payment Date and cumulatively since the Closing Date.
Items (iii) and (iv) 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) and (iv) with respect to the Bonds for such calendar year.
The Indenture Trustee may conclusively rely upon the Remittance Report
provided by the Master Servicer pursuant to Section 4.01 of the Servicing
Agreement and on the amount of the Net Derivative Contract Payment Amount
furnished to the Indenture Trustee pursuant to the Derivative Contracts in its
preparation of its Statement to Bondholders.
ARTICLE VIII
Accounts, Disbursements and Releases
Section 8.01 COLLECTION OF MONEY. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
Section 8.02 TRUST ACCOUNTS. (a) On or prior to the Closing Date, the
Issuer shall cause the Indenture Trustee to establish and maintain, in the name
of the Indenture Trustee, for the benefit of the Bondholders and the Derivative
Contract Counterparties, 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 (i) pay the Bond
Insurance Premium to the Bond Insurer, (ii) pay the related Derivative Contract
Counterparty the Net Derivative Fee and Class A-2 Net Derivative Fee, in each
case excluding any Additional Derivative Contract Counterparty Payment, and
(iii) pay the Owner Trustee the Owner Trustee's Fee, and then the Indenture
Trustee shall distribute all remaining amounts on deposit in the Payment Account
to the Bondholders in respect of the Bonds and to such other persons in the
order of priority set forth in Section 3.05 hereof (except as otherwise provided
in Section 5.04(b) hereof).
(d) The Indenture Trustee shall invest any funds in the Payment Account,
but only in Eligible Investments, as directed by the Master Servicer, maturing
no later than the Business Day preceding each Payment Date and such Eligible
Investments shall not be sold or disposed of prior to their maturity. From the
Business Day prior to the Payment Date until distributed, such funds shall be
held uninvested and any income, gain or other benefit with respect thereto shall
be for the benefit of the Indenture Trustee.
Section 8.03 OFFICER'S CERTIFICATE. The Indenture Trustee shall receive at
least seven Business Days' notice when requested by the Issuer to take any
action pursuant to Section 8.05(a) hereof, accompanied by copies of any
instruments to be executed, and the Indenture Trustee shall also require, as a
condition to such action, an Officer's Certificate, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with.
Section 8.04 TERMINATION UPON DISTRIBUTION TO BONDHOLDERS. This Indenture
and the respective obligations and responsibilities of the Issuer and the
Indenture Trustee created hereby shall terminate upon the distribution to
Bondholders, the Bond Insurer, the Certificate Paying Agent on behalf of the
Certificateholders and the Indenture Trustee of all amounts required to be
distributed pursuant to Article III; PROVIDED, HOWEVER, that in no event shall
the trust created hereby continue beyond the expiration of 21 years from the
death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Section 8.05 RELEASE OF TRUST ESTATE. (a) Subject to the payment of its
fees and expenses, the Indenture Trustee may, and when required by the
provisions of this Indenture shall, execute instruments to release property from
the lien of this Indenture, or convey the Indenture Trustee's interest in the
same, in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture, including for the purposes of any repurchase by
the Master Servicer of a Mortgage Loan pursuant to Section 3.18 of the Servicing
Agreement. No party relying upon an instrument executed by the Indenture Trustee
as provided in Article VIII hereunder shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent,
or see to the application of any monies.
Section 8.06 The Indenture Trustee shall, at such time as (i) there are no
Bonds outstanding, (ii) all sums due to the Indenture Trustee pursuant to this
Indenture have been paid and (iii) all sums due to the Bond Insurer have been
paid, release any remaining portion of the Trust Estate that secured the Bonds
from the lien of this Indenture.
(a) 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, except as otherwise
provided in clause (a).
Section 8.07 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 8.08 OPTIONAL REDEMPTION OF THE BONDS. (a) The Majority
Certificateholder shall have the option to redeem the Bonds in whole, but not in
part, on any Payment Date on or after the earlier of (i) the Payment Date on
which the aggregate Stated Principal Balance of the Mortgage Loans as of the end
of the prior Due Period is less than or equal to 20% of the aggregate Cut-off
Date Balance and (ii) the Payment Date occurring in June 2015. The aggregate
redemption price for the Bonds will be equal to the unpaid Bond Principal
Balance of such 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 and Basis Risk
Shortfall Carry-Forward Amount), plus an amount sufficient to pay in full all
amounts owing to the Bond Insurer and the Indenture Trustee under this Indenture
and the Bond Insurance Policy (which amounts shall be specified in writing upon
request of the Issuer by the Indenture Trustee and the Bond Insurer) and plus an
amount 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 and the Bond Insurer) and plus an amount
equal to any amounts owing to the Derivative Contract Counterparties under the
Derivative Contracts.
(b) In order to exercise the foregoing option, the Issuer shall provide
written notice of its exercise of such option to the Indenture Trustee, the
Owner Trustee and the Master Servicer at least 15 days prior to its exercise.
Following receipt of the notice, the Indenture Trustee shall provide notice to
the Bondholders of the final payment on the Bonds. In addition, the Issuer
shall, not less than one Business Day prior to the proposed Payment Date on
which such redemption is to be made, deposit the aggregate redemption price
specified in (a) above with the Indenture Trustee, who shall deposit the
aggregate redemption price into the Payment Account and shall, on the Payment
Date after receipt of the funds, apply such funds to make final payments of
principal and interest on the Bonds in accordance with Sections 3.05(b), (c) and
(d) hereof and payment in full to the Bond Insurer for all amounts owing under
the Bond Insurance Policy and payment in full to the Indenture Trustee for all
amounts payable to it under this Indenture and this Indenture shall be
discharged subject to the provisions of Section 4.10 hereof. If for any reason
the amount deposited by the Issuer is not sufficient to make such redemption or
such redemption cannot be completed for any reason, the amount so deposited by
the Issuer with the Indenture Trustee shall be immediately returned to the
Issuer in full and shall not be used for any other purpose or be deemed to be
part of the Trust Estate.
ARTICLE IX
Supplemental Indentures
Section 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF BONDHOLDERS. (a)
Without the consent of the Holders of any Bonds and 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) 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 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 or Notional
Amounts of each Class of Bonds affected thereby, by Act (as defined in Section
10.03 hereof) of such Holders delivered to the Issuer and the Indenture Trustee,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Bonds under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each Bond
affected thereby:
(i) change the date of payment of any installment of principal of or
interest on any Bond, or reduce the principal amount thereof or the
interest rate thereon, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the
Trust Estate to payment of principal of or interest on the Bonds, or change
any place of payment where, or the coin or currency in which, any Bond or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the Bonds on or after the respective due
dates thereof;
(ii) reduce the percentage of the Bond Principal Balances of the
Bonds, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of the term "Outstanding" or modify or alter the exception in the
definition of the term "Bondholder";
(iv) reduce the percentage of the Bond Principal Balances of the Bonds
required to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Trust Estate pursuant to Section 5.04 hereof;
(v) modify any provision of this Section 9.02 except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Bond affected thereby;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Bond on any Payment Date (including the calculation of
any of the individual components of such calculation); or
(vii) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust
Estate or, except as otherwise permitted or contemplated herein, terminate
the lien of this Indenture on any property at any time subject hereto or
deprive the Holder of any Bond of the security provided by the lien of this
Indenture;
and PROVIDED, FURTHER, that such action shall not, as evidenced by an Opinion of
Counsel, cause the Issuer (if 100% of the Certificates are not owned by IMH
Assets Corp.) to be subject to an entity level tax.
Any such action shall not adversely affect in any material respect the
interest of any Bondholder (other than a Bondholder who shall consent to such
supplemental indenture) as evidenced by an Opinion of Counsel (provided by the
Person requesting such supplemental indenture) delivered to the Indenture
Trustee.
No supplemental indenture adverse to the interests of the Derivative
Contract Counterparties shall be entered into without the related Derivative
Contract Counterparty's written consent.
It shall not be necessary for any Act of Bondholders under this Section
9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of any
supplemental indenture pursuant to this Section 9.02, the Indenture Trustee
shall mail to the Holders of the Bonds to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02 hereof, shall be fully protected in relying
upon, an 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.
ARTICLE X
Miscellaneous
Section 10.01 COMPLIANCE CERTIFICATES AND OPINIONS, ETC. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with;
(4) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with; and
(5) if the signatory of such certificate or opinion is required to be
Independent, the statement required by the definition of the term
"Independent Certificate".
(6) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 10.01 (a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days prior
to such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited and a report from a nationally recognized
accounting firm verifying such value.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent Certificate from
a nationally recognized accounting firm as to the same matters, if the fair
value of the securities to be so deposited and of all other such securities
made the 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 or Notional Amounts 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 or Notional Amounts 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 or Notional
Amounts 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 or Notional Amounts of
the Bonds.
Section 10.02 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Seller or the
Issuer, stating that the information with respect to such factual matters is in
the possession of the Seller or the Issuer, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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, SELLER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Bondholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or act of Bondholders is to be made upon, given or
furnished to or filed with:
(i) the Indenture Trustee by any Bondholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Indenture Trustee at the Corporate Trust Office.
The Indenture Trustee shall promptly transmit any notice received by it
from the Bondholders to the Issuer; or
(ii) the Issuer by the Indenture Trustee or by any Bondholder shall be
sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid to the Issuer addressed to: Impac CMB Trust
Series 2005-5, in care of Wilmington Trust Company, Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration, or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer. The Issuer
shall promptly transmit any notice received by it from the Bondholders to
the Indenture Trustee; or
(iii) the Seller by the Indenture Trustee shall be sufficient for
every purpose hereunder if in writing and mailed, first-class postage
pre-paid, or personally delivered or telecopied to: Impac Mortgage
Holdings, Inc., 0000 Xxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000,
Attention: General Counsel.
(iv) the Bond Insurer by the Issuer, the Indenture Trustee or by any
Bondholders shall be sufficient for every purpose hereunder if in writing
and mailed, first-class postage pre-paid, or personally delivered or
telecopied to: Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Consumer Asset-Backed Securities Group,
Telephone: (000) 000-0000, Telecopier: (000) 000-0000. The Bond Insurer
shall promptly transmit any notice received by it from the Issuer, the
Indenture Trustee or the Bondholders to the Issuer or Indenture Trustee, as
the case may be.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, mailed first-class
postage pre-paid, to (i) in the case of Moody's, at the following address:
Xxxxx'x Investors Service, Inc., Residential Mortgage Monitoring Department, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) in the case of Standard &
Poor's, at the following address: Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Surveillance
Department; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
Section 10.05 NOTICES TO BONDHOLDERS; WAIVER. Where this Indenture provides
for notice to Bondholders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class, postage prepaid to each Bondholder affected by such event, at such
Person's address as it appears on the Bond Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Bondholders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Bondholder shall affect the sufficiency of such notice with respect
to other Bondholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given regardless of
whether such notice is in fact actually received.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Bondholders shall be filed with the Indenture Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Bondholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to
give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute an Event of Default.
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 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 10.11 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 10.12 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 10.13 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 10.14 ISSUER OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Bonds or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI, VII and VIII of the Trust Agreement.
Section 10.15 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 10.16 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.
ARTICLE XI
Certain Matters Regarding the Bond Insurer
Section 11.01 RIGHTS OF THE BOND INSURER TO EXERCISE THE RIGHTS OF THE
CLASS A-3W BONDS. By accepting its Bond, each Class A-3W Bondholder agrees that
unless an Bond Insurer Default exists, the Bond Insurer shall have the right to
exercise all consent, voting, direction and other control rights of the Class
A-3W Bondholders under this Indenture without any further consent of the Class
A-3W Bondholders.
Section 11.02 CLAIMS UPON THE BOND INSURANCE POLICY; INSURANCE ACCOUNT. (a)
If, on the Business Day next succeeding the Determination Date, the Master
Servicer determines that (i) the funds that will be on deposit in the Payment
Account on the third Business Day prior to the related Payment Date, to the
extent payable to the Class A-3W Bondholders pursuant to Section 3.05, are
insufficient to pay the Accrued Bond Interest on the Class A-3W Bonds for such
Payment Date, net of any Prepayment Interest Shortfalls, Relief Act Shortfalls
or Basis Risk Shortfalls allocated to the Class A-3W Bonds or (ii) the funds
available in connection with an optional redemption of the Bonds pursuant to
Section 8.07 or on the Final Scheduled Payment Date will be insufficient to
reduce the Bond Principal Balance of the Class A-3W Bonds to zero, the Master
Servicer shall deliver to the Indenture Trustee not later than 1:00 p.m. New
York City time on the Business Day next succeeding the Determination Date a
certificate signed by a Servicing Officer directing the Indenture Trustee to
draw on the Bond Insurance Policy and stating the amount to be drawn and stating
the Insured Amount for the Class A-3W Bonds, and the Indenture Trustee shall
give notice by telephone or telecopy of the aggregate amount of such deficiency,
confirmed in writing in the form set forth as Exhibit A to the endorsement of
the Bond Insurance Policy, to the Bond Insurer at or before 12:00 noon, New York
City time, on the Business Day prior to such Payment Date. If, subsequent to
such notice, and prior to payment by the Bond Insurer pursuant to such notice,
additional amounts are deposited in the Payment Account, the Indenture Trustee
shall reasonably promptly notify the Bond Insurer and withdraw the notice or
reduce the amount claimed, as appropriate.
(b) The Indenture Trustee shall establish a separate special purpose
non-interest bearing trust account for the benefit of Holders of the Class A-3W
Bonds and the Bond Insurer referred to herein as the "Insurance Account" over
which the Indenture Trustee shall have exclusive control and sole right of
withdrawal. The Indenture Trustee shall deposit any amount paid to it under the
Bond Insurance Policy in the Insurance Account and distribute such amount only
for purposes of payment to Holders of Class A-3W Bonds of the Insured Amount for
which a claim was made. Such amount may not be applied to satisfy any costs,
expenses or liabilities of the Master Servicer, the Indenture Trustee or the
Trust Estate. Amounts paid under the Bond Insurance Policy shall be transferred
to the Payment Account in accordance with the next succeeding paragraph and
disbursed by the Indenture Trustee to Holders of Class A-3W Bonds in accordance
with Section 3.05 or Section 8.04, as applicable. It shall not be necessary for
such payments to be made by checks or wire transfers separate from the checks or
wire transfers used to pay the Insured Amount with other funds available to make
such payment. However, the amount of any payment of principal of or interest on
the Class A-3W Bonds to be paid from funds transferred from the Insurance
Account shall be noted as provided in paragraph (c) below and in the statement
to be furnished to Holders of the Bonds and Certificates pursuant to Section
3.25. Funds held in the Insurance Account shall not be invested by the Master
Servicer or the Indenture Trustee.
On any Payment Date with respect to which a claim has been made under the
Bond Insurance Policy, the amount of any funds received by the Indenture Trustee
as a result of any claim under the Bond Insurance Policy, to the extent required
to pay the Insured Amount on such Payment Date, shall be withdrawn by the
Indenture Trustee from the Insurance Account and deposited in the Payment
Account and applied by the Indenture Trustee, together with the other funds to
be distributed to the Class A-3W Bondholders pursuant to Section 3.05, directly
to the payment in full of the Insured Amount due on the Class A-3W Bonds. Any
funds remaining in the Insurance Account on the first Business Day following a
Payment Date shall be remitted by the Indenture Trustee to the Bond Insurer,
pursuant to the written instructions of the Bond Insurer, by the end of such
Business Day.
(c) The Indenture Trustee shall keep a complete and accurate record of the
amount of interest and principal paid into the Insurance Account in respect of
any Class A-3W Bond from moneys received by the Indenture Trustee under the Bond
Insurance Policy. The Bond Insurer shall have the right to inspect such records
at reasonable times during normal business hours upon two Business Day's prior
written notice to the Indenture Trustee.
Section 11.03 EFFECT OF PAYMENTS BY THE BOND INSURER; SUBROGATION. Anything
herein to the contrary notwithstanding, for purposes of this Section 11.03, any
payment with respect to principal of or interest on the Class A-3W Bonds which
is made with monies received pursuant to the terms of the Bond Insurance Policy
shall not be considered payment of the Class A-3W Bonds from the Trust Estate.
The Master Servicer and the Indenture Trustee acknowledge, and each Holder by
its acceptance of a Class A-3W Bond agrees, that without the need for any
further action on the part of the Bond Insurer, the Master Servicer, the
Indenture Trustee or the Certificate Registrar, to the extent the Bond Insurer
makes payments, directly or indirectly, on account of principal of or interest
on the Class A-3W Bonds to the Holders of such Bonds, the Bond Insurer will be
fully subrogated to, and each Class A-3W Bondholder and the Indenture Trustee
hereby delegate and assign to the Bond Insurer, to the fullest extent permitted
by law, the rights of such Holders to receive such principal and interest from
the Trust Estate; provided that the Bond Insurer shall be paid such amounts only
from the sources and in the manner explicitly provided for herein.
The Indenture Trustee and the Master Servicer shall cooperate in all
respects with any reasonable request by the Bond Insurer for action to preserve
or enforce the Bond Insurer's rights or interests under this Indenture without
limiting the rights or affecting the interests of the Holders as otherwise set
forth herein.
Section 11.04 NOTICES AND INFORMATION TO THE BOND INSURER. All notices,
statements, reports, certificates or opinions required by this Indenture to be
sent or made available to any other party hereto or to the Bondholders or
Certificateholders shall also be sent or made available to the Bond Insurer.
Section 11.05 TRUSTEE TO HOLD BOND INSURANCE POLICY. The Indenture Trustee
will hold the Bond Insurance Policy in trust as agent for the Class A-3W
Bondholders for the purpose of making claims thereon and distributing the
proceeds thereof. Neither the Bond Insurance Policy, nor the amounts paid on the
Bond Insurance Policy will constitute part of the Trust Estate. Each Class A-3W
Bondholder, by accepting its Bond, appoints the Indenture Trustee as
attorney-in-fact for the purpose of making claims on the Bond Insurance Policy.
The Indenture Trustee shall surrender the Bond Insurance Policy to the Bond
Insurer for cancellation upon the expiration of the term of the Bond Insurance
Policy as provided in the Bond Insurance Policy following the retirement of the
Class A-3W Bonds.
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 2005-5, as Issuer
Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By: /s/
------------------------------------
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY, as
Indenture Trustee
By: /s/
------------------------------------
Name:
Title:
By: /s/
------------------------------------
Name:
Title:
Acknowledged and agreed with respect to Section 2.07 hereof:
IMPAC MORTGAGE HOLDINGS, INC.,
as Seller
By:
--------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
STATE OF CALIFORNIA )
) ss.:
COUNTY OF )
On this _____ day of June, 2005, before me personally appeared
______________________ to me known, who being by me duly sworn, did depose and
say, that he is the ____________________ 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 )
On this _____ day of June, 2005, before me personally appeared
______________________ to me known, who being by me duly sworn, did depose and
say, that he is the ____________________ 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 ____ day of June, 2005, before me personally appeared
_______________________ to me known, who being by me duly sworn, did depose and
say, that she is a ____________________________ of the Owner Trustee, one of the
entities described in and which executed the above instrument; and that she
signed her name thereto by like order.
Notary Public
---------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On this ____ day of June, 2005, before me personally appeared
_______________________ to me known, who being by me duly sworn, did depose
and say, that he is a ____________________________ of the Seller, one of
the entities described in and which executed the above instrument; and that
she signed her name thereto by like order.
Notary Public
---------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
EXHIBIT A-1
FORM OF CLASS [A-_] BONDS
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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 AND THE BOND INSURANCE POLICY AS
PROVIDED IN THE INDENTURE REFERRED TO BELOW. THE ISSUER IS NOT OTHERWISE
PERSONALLY LIABLE FOR PAYMENTS ON THIS BOND.
PRINCIPAL OF THIS BOND IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS BOND AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
IMPAC CMB TRUST SERIES 2005-5
COLLATERALIZED ASSET-BACKED BONDS
CLASS [_-A-_]
AGGREGATE [BOND PRINCIPAL BOND INTEREST
BALANCE] [NOTIONAL AMOUNT]: RATE: [Adjustable Rate] [___%]
$[ ]
INITIAL [BOND PRINCIPAL BOND NO. 1
BALANCE] [NOTIONAL AMOUNT] OF THIS
BOND: $[ ]
PERCENTAGE INTEREST: 100% CUSIP NO. [ ]
Impac CMB Trust Series 2005-5 (the "Issuer"), a Delaware statutory trust,
for value received, hereby promises to pay to Cede & Co. or registered assigns,
[the principal sum of ($_________________) in monthly installments on the
twenty-fifth day of each month or, if such day is not a Business Day, the next
succeeding Business Day (each a "Payment Date"), commencing in July 2005 and
ending on or before the Payment Date occurring in [_________] (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 2005-5 (the "Bonds"), issued under an Indenture dated
as of June 30, 2005 (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.
[Ambac Assurance Corporation (the "Bond Insurer"), in consideration of the
payment of the premium and subject to the terms of the certificate guaranty
insurance policy (the "Bond Insurance Policy") issued thereby, has
unconditionally and irrevocably guaranteed the payment of the Insured Amount
with respect to the Class A-3W Bonds with respect to each Payment Date. Such
Bond Insurance Policy will not cover any Prepayment Interest Shortfalls, Relief
Act Shortfalls or Basis Risk Shortfall Carry- Forward Amount.]
Payments of [principal and] interest on this Bond will be made on each
Payment Date to the Bondholder of record as of the related Record Date. [The
"Bond Principal Balance" of a Bond as of any date of determination is equal to
the initial Bond Principal Balance thereof, reduced by the aggregate of all
amounts previously paid with respect to such Bond on account of principal and
the aggregate amount of cumulative Realized Losses allocated to such Bond on all
prior Payment Dates.] [The "Notional Amount" for the Class I-A-IO Bonds will be
$1,647,348,802 for the July 2005 Payment Date, $1,540,098,246 for the August
2005 Payment Date, $1,441,601,602 for the September 2005 Payment Date,
$1,320,364,047 for the October 2005 Payment Date, $1,209,320,224 for the
November 2005 Payment Date and $1,107,642,332 for the December 2005.].
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-_] 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 Guaranty Agreement shall be
paid to the Holders of this Bond pursuant to Section 3.30 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.
The Bonds are subject to redemption in whole, but not in part, by the
Majority Certificateholder, on or after the earlier of (i) the Payment Date on
which the aggregate Stated Principal Balance of the Mortgage Loans as of the end
of the prior Due Period is less than or equal to 20% of the sum of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, and (ii)
the Payment Date occurring in June 2015.
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 Bond is registered at the close of business on the Record Date
for such Payment Date by check mailed to such Person's address as it appears in
the Bond Register on such Record Date, except for the final installment of
[principal and] interest payable with respect to such Bond, which shall be
payable as provided below. Notwithstanding the foregoing, upon written request
with appropriate instructions by the Holder of this Bond delivered to the
Indenture Trustee at least five Business Days prior to the Record Date, any
payment of [principal or] interest, other than the final installment of
[principal or] interest, shall be made by wire transfer to an account in the
United States designated by such Xxxxxx. All scheduled reductions in the
[principal amount][Notional Amount] of a Bond (or one or more predecessor Bonds)
effected by payments of principal made on any Payment Date shall be binding upon
all Holders of this Bond and of any bond issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, whether or not such
payment is noted on such Bond. The final payment of this Bond shall be payable
upon presentation and surrender thereof on or after the Payment Date thereof at
the Corporate Trust Office or the office or agency of the Issuer maintained by
it for such purpose pursuant to Section 3.02 of the Indenture.
Subject to the foregoing provisions, each Bond delivered under the
Indenture, upon registration of transfer of or in exchange for or in lieu of any
other Bond shall carry the right to unpaid principal and interest that were
carried by such other Bond.
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Bonds, the Bonds may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs prior to the payment of the entire unpaid
Bond Principal Balance of the Bonds, the amount payable to the Holder of this
Bond will be equal to [the sum of the unpaid Bond Principal Balance of the
Bonds, together with] accrued and unpaid interest [thereon] [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 non-exempt 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,
any Underwriter, the Owner Trustee, the Indenture Trustee, the Master Servicer
or any successor servicer which opines that the acquisition, holding and
transfer of such Bond or interest therein is permissible under applicable law,
will not constitute or result in a non-exempt prohibited transaction under ERISA
or Section 4975 of the Code and will not subject the Issuer, the Seller, the
Depositor, any Underwriter, the Owner Trustee, the Indenture Trustee, the Master
Servicer or any successor servicer to any obligation in addition to those
undertaken in the Indenture.
[Pursuant to the Indenture, unless a Bond Insurer Default (as defined in
the Indenture) exists (i) the Bond Insurer shall be deemed to be the holder of
the Class A-3W Bonds for certain purposes specified in the Indenture (other than
with respect to payment on the Class A-3W Bonds), and will be entitled to
exercise all rights of the Bondholders thereunder, including the rights of
Bondholders relating to the occurrence of, and the remedies with respect to, an
Event of Default, without the consent of such Bondholders, and (ii) the Trustee
may take actions which would otherwise be at its option or within its
discretion, including actions relating to the occurrence of, and the remedies
with respect to, an Event of Default, only at the direction, or with the
consent, of the Bond Insurer.]
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][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 with the consent of 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 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated: June [__], 2005
IMPAC CMB TRUST SERIES 2005-5
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 Bonds referred to in the within-mentioned Indenture.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee
By:
----------------------------------------
Authorized Signatory
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.
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 Bond 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.
EXHIBIT A-2
FORM OF CLASS M-[_] BONDS
THIS BOND IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS [_-A-_] BONDS [AND
CLASS M-[_] BONDS] AS DESCRIBED IN THE INDENTURE.
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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.
IMPAC CMB TRUST SERIES 2005-5
COLLATERALIZED ASSET-BACKED BONDS
CLASS M-[_]
AGGREGATE BOND PRINCIPAL BOND INTEREST
BALANCE: RATE: Adjustable Rate
$[ ]
INITIAL BOND PRINCIPAL BOND NO. 1
BALANCE OF THIS BOND: $[ ]
PERCENTAGE INTEREST: 100% CUSIP NO. [ ]
Impac CMB Trust Series 2005-5 (the "Issuer"), a Delaware statutory trust,
for value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ______________________________ ($___________) in monthly
installments on the twenty-fifth day of each month or, if such day is not a
Business Day, the next succeeding Business Day (each a "Payment Date"),
commencing in July 2005 and ending on or before the Payment Date occurring in
[__________] (the "Final Scheduled Payment Date") and to pay interest on the
Bond Principal Balance of this Bond (this "Bond") outstanding from time to time
as provided below.
This Bond is one of a duly authorized issue of the Issuer's Collateralized
Asset-Backed Bonds, Series 2005-5 (the "Bonds"), issued under an Indenture dated
as of June 30, 2005 (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 Bond's pro rata share of the aggregate payments on all Class
M-[_] Bonds as described above, and shall be applied as between interest and
principal as provided in the Indenture.
All principal and interest accrued on the Bonds, if not previously paid,
will become finally due and payable at the Final Scheduled Payment Date.
The Bonds are subject to redemption in whole, but not in part, by the
Majority Certificateholder, on or after the earlier of (i) the Payment Date on
which the aggregate Stated Principal Balance of the Mortgage Loans as of the end
of the prior Due Period is less than or equal to 20% of the sum of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, and (ii)
the Payment Date occurring in June 2015.
The Issuer shall not be liable upon the indebtedness evidenced by the Bonds
except to the extent of amounts available from the Trust Estate which
constitutes security for the payment of the Bonds. The assets included in the
Trust Estate will be the sole source of payments on the Class M-[_] Bonds, and
each Holder hereof, by its acceptance of this Bond, agrees that (i) such Bond
will be limited in right of payment to amounts available from the Trust Estate
as provided in the Indenture and (ii) such Holder shall have no recourse to the
Issuer, the Owner Trustee, the Indenture Trustee, IMH Assets Corp., Impac
Mortgage Holdings, Inc., the Master Servicer or any of their respective
affiliates, or to the assets of any of the foregoing entities, except the assets
of the Issuer pledged to secure the Class M-[_] Bonds pursuant to the Indenture
and the rights conveyed to the Issuer under the Indenture.
Any payment of principal or interest payable on this Bond which is
punctually paid on the applicable Payment Date shall be paid to the Person in
whose name such Xxxx is registered at the close of business on the Record Date
for such Payment Date by check mailed to such Person's address as it appears in
the Bond Register on such Record Date, except for the final installment of
principal and interest payable with respect to such Bond, which shall be payable
as provided below. Notwithstanding the foregoing, upon written request with
appropriate instructions by the Holder of this Bond delivered to the Indenture
Trustee at least five Business Days prior to the Record Date, any payment of
principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Xxxxxx. All reductions in the principal amount of a Bond (or
one or more predecessor Bonds) effected by payments of principal made on any
Payment Date shall be binding upon all Holders of this Bond and of any bond
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, whether or not such payment is noted on such Bond. The final
payment of this Bond shall be payable upon presentation and surrender thereof on
or after the Payment Date thereof at the Corporate Trust Office or the office or
agency of the Issuer maintained by it for such purpose pursuant to Section 3.02
of the Indenture.
Subject to the foregoing provisions, each Bond delivered under the
Indenture, upon registration of transfer of or in exchange for or in lieu of any
other Bond shall carry the right to unpaid principal and interest that were
carried by such other Bond.
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Bonds, the Bonds may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs prior to the payment of the entire unpaid
Bond Principal Balance of the Bonds, the amount payable to the Holder of this
Bond will be equal to the sum of the unpaid Bond Principal Balance of the Bonds,
together with accrued and unpaid interest thereon as described in the Indenture.
The Indenture provides that, notwithstanding the acceleration of the maturity of
the Bonds, under certain circumstances specified therein, all amounts collected
as proceeds of the Trust Estate securing the Bonds or otherwise 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 non-exempt 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,
any Underwriter, the Owner Trustee, the Indenture Trustee, the Master Servicer
or any successor servicer which opines that the acquisition, holding and
transfer of such Bond or interest therein is permissible under applicable law,
will not constitute or result in a non-exempt prohibited transaction under ERISA
or Section 4975 of the Code and will not subject the Issuer, the Seller, the
Depositor, any Underwriter, the Owner Trustee, the Indenture Trustee, the Master
Servicer or any successor servicer to any obligation in addition to those
undertaken in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond may be registered on the Bond Register of the
Issuer. Upon surrender for registration of transfer of, or presentation of a
written instrument of transfer for, this Bond at the office or agency designated
by the Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the Indenture Trustee, one or more new Bonds
of any authorized denominations and of a like aggregate initial Bond Principal
Balance, will be issued to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of this Bond, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Bond is registered as the owner
of such Bond (i) on the applicable Record Date for the purpose of making
payments and interest of such Bond, and (ii) on any other date for all other
purposes whatsoever, as the owner hereof, whether or not this Bond be overdue,
and neither the Issuer, the Indenture Trustee nor any such agent of the Issuer
or the Indenture Trustee shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Bonds under the Indenture at any
time by the Issuer with the consent of 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 and Notional Amount 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated: June [__], 2005
IMPAC CMB TRUST SERIES 2005-5
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 Bonds referred to in the within-mentioned Indenture.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee
By:
---------------------------------
Authorized Signatory
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.
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.
EXHIBIT A-3
FORM OF CLASS B-[__] BONDS
THIS BOND IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A BONDS AND CLASS M
BONDS AS DESCRIBED IN THE INDENTURE.
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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.
IMPAC CMB TRUST SERIES 2005-5
COLLATERALIZED ASSET-BACKED BONDS
CLASS B-[__]
AGGREGATE BOND PRINCIPAL BOND INTEREST
BALANCE: RATE: [Adjustable Rate]
$[ ]
INITIAL BOND PRINCIPAL BOND NO. 1
BALANCE OF THIS BOND: $[ ]
PERCENTAGE INTEREST: 100% CUSIP NO. [ ]
Impac CMB Trust Series 2005-5 (the "Issuer"), a Delaware statutory trust,
for value received, hereby promises to pay to Cede & Co. or registered assigns,
the principal sum of ______________________________ ($___________) in monthly
installments on the twenty-fifth day of each month or, if such day is not a
Business Day, the next succeeding Business Day (each a "Payment Date"),
commencing in July 2005 and ending on or before the Payment Date occurring in
[__________] (the "Final Scheduled Payment Date") and to pay interest on the
Bond Principal Balance of this Bond (this "Bond") outstanding from time to time
as provided below.
This Bond is one of a duly authorized issue of the Issuer's Collateralized
Asset-Backed Bonds, Series 2005-5 (the "Bonds"), issued under an Indenture dated
as of June 30, 2005 (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 Bond's pro rata share of the aggregate payments on all Class
B-[__] Bonds as described above, and shall be applied as between interest and
principal as provided in the Indenture.
All principal and interest accrued on the Bonds, if not previously paid,
will become finally due and payable at the Final Scheduled Payment Date.
The Bonds are subject to redemption in whole, but not in part, by the
Majority Certificateholder, on or after the earlier of (i) the Payment Date on
which the aggregate Stated Principal Balance of the Mortgage Loans as of the end
of the prior Due Period is less than or equal to 20% of the sum of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, and (ii)
the Payment Date occurring in June 2015.
The Issuer shall not be liable upon the indebtedness evidenced by the Bonds
except to the extent of amounts available from the Trust Estate which
constitutes security for the payment of the Bonds. The assets included in the
Trust Estate will be the sole source of payments on the Class B-[_]Bonds, and
each Holder hereof, by its acceptance of this Bond, agrees that (i) such Bond
will be limited in right of payment to amounts available from the Trust Estate
as provided in the Indenture and (ii) such Holder shall have no recourse to the
Issuer, the Owner Trustee, the Indenture Trustee, IMH Assets Corp., Impac
Mortgage Holdings, Inc., the Master Servicer or any of their respective
affiliates, or to the assets of any of the foregoing entities, except the assets
of the Issuer pledged to secure the B-[_] Bonds pursuant to the Indenture and
the rights conveyed to the Issuer under the Indenture.
Any payment of principal or interest payable on this Bond which is
punctually paid on the applicable Payment Date shall be paid to the Person in
whose name such Xxxx is registered at the close of business on the Record Date
for such Payment Date by check mailed to such Person's address as it appears in
the Bond Register on such Record Date, except for the final installment of
principal and interest payable with respect to such Bond, which shall be payable
as provided below. Notwithstanding the foregoing, upon written request with
appropriate instructions by the Holder of this Bond delivered to the Indenture
Trustee at least five Business Days prior to the Record Date, any payment of
principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Xxxxxx. All reductions in the principal amount of a Bond (or
one or more predecessor Bonds) effected by payments of principal made on any
Payment Date shall be binding upon all Holders of this Bond and of any bond
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, whether or not such payment is noted on such Bond. The final
payment of this Bond shall be payable upon presentation and surrender thereof on
or after the Payment Date thereof at the Corporate Trust Office or the office or
agency of the Issuer maintained by it for such purpose pursuant to Section 3.02
of the Indenture.
Subject to the foregoing provisions, each Bond delivered under the
Indenture, upon registration of transfer of or in exchange for or in lieu of any
other Bond shall carry the right to unpaid principal and interest that were
carried by such other Bond.
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Bonds, the Bonds may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs prior to the payment of the entire unpaid
Bond Principal Balance of the Bonds, the amount payable to the Holder of this
Bond will be equal to the sum of the unpaid Bond Principal Balance of the Bonds,
together with accrued and unpaid interest thereon as described in the Indenture.
The Indenture provides that, notwithstanding the acceleration of the maturity of
the Bonds, under certain circumstances specified therein, all amounts collected
as proceeds of the Trust Estate securing the Bonds or otherwise shall continue
to be applied to payments of principal of and interest on the Bonds as if they
had not been declared due and payable.
The failure to pay any Unpaid Interest Shortfall at any time when funds are
not available to make such payment as provided in the Indenture shall not
constitute an Event of Default under the Indenture.
The Holder of this Bond or Beneficial Owner of any interest herein is
deemed to represent that either (1) it is not acquiring the Bond with Plan
Assets or (2) (A) the acquisition, holding and transfer of a Bond will not give
rise to a non-exempt 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,
any Underwriter, the Owner Trustee, the Indenture Trustee, the Master Servicer
or any successor servicer which opines that the acquisition, holding and
transfer of such Bond or interest therein is permissible under applicable law,
will not constitute or result in a non-exempt prohibited transaction under ERISA
or Section 4975 of the Code and will not subject the Issuer, the Seller, the
Depositor, any Underwriter, the Owner Trustee, the Indenture Trustee, the Master
Servicer or any successor servicer to any obligation in addition to those
undertaken in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond may be registered on the Bond Register of the
Issuer. Upon surrender for registration of transfer of, or presentation of a
written instrument of transfer for, this Bond at the office or agency designated
by the Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the Indenture Trustee, one or more new Bonds
of any authorized denominations and of a like aggregate initial Bond Principal
Balance, will be issued to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of this Bond, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Bond is registered as the owner
of such Bond (i) on the applicable Record Date for the purpose of making
payments and interest of such Bond, and (ii) on any other date for all other
purposes whatsoever, as the owner hereof, whether or not this Bond be overdue,
and neither the Issuer, the Indenture Trustee nor any such agent of the Issuer
or the Indenture Trustee shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Bonds under the Indenture at any
time by the Issuer with the consent of 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated: June [__], 2005
IMPAC CMB TRUST SERIES 2005-5
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 Bonds referred to in the within-mentioned Indenture.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee
By:
-----------------------------------
Authorized Signatory
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.
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.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(Filed Manually)
EXHIBIT C
FORM OF INITIAL CERTIFICATION
_______________, 200_
[Issuer]
[Master Servicer]
Attention: Impac CMB Trust Series 2005-5
Re: Indenture dated as of June 30, 2005, between Impac CMB Trust
Series 2005-5 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 Purchase Agreement, dated as of
June 30, 2005 between Impac Mortgage Holdings, Inc. and Impac Funding
Corporation (the "MLPA"; 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) (solely to the
extent of the original Mortgage Rate) 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 MLPA should be included in any Mortgage File. The Indenture Trustee makes no
representations as to and shall not be responsible to verify: (i) the validity,
legality, sufficiency, enforceability, due authorization, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan, or (iii) the existence of any assumption, modification, written assurance
or substitution agreement with respect to any Mortgage File if no such documents
appear in the Mortgage File delivered to the Indenture Trustee.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Indenture.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
By:
---------------------------------
Name:
Title:
EXHIBIT D
FORM OF FINAL CERTIFICATION
______________, 200__
[Issuer]
[Master Servicer]
Attention: Impac CMB Trust Series 2005-5
Re: Indenture, dated as of June 30, 2005, between Impac CMB
Trust Series 2005-5 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 Purchase Agreement, dated as of June 30,
2005, between Impac Mortgage Holdings, Inc. (formerly known as Imperial Credit
Mortgage Holdings, Inc.) and Impac Funding Corporation (formerly known as ICI
Funding Corporation) (the "MLPA"; 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 MLPA.
The Indenture Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Agreements. The Indenture Trustee makes no representation that
any documents specified in clause (v) of Section 2.1 (b) should be included in
any Mortgage File. The Indenture Trustee makes no representations as to and
shall not be responsible to verify: (i) the validity, legality, sufficiency,
enforceability, due authorization, recordability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance or substitution agreement with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the Indenture Trustee.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Indenture.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
By:
---------------------------------
Name:
Title:
EXHIBIT E
DERIVATIVE CONTRACTS
(Provided Upon Request)
EXHIBIT F
SPECIAL CERTIFICATE CAP CONTRACT
(Provided Upon Request)
EXHIBIT G
[RESERVED]
EXHIBIT H
[RESERVED]
EXHIBIT I-1
[RESERVED]
EXHIBIT I-2
[RESERVED]
EXHIBIT J
[RESERVED]
