EXHIBIT 3.2
IMH ASSETS CORP.,
DEPOSITOR,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
GRANTOR TRUSTEE
------------------------------------------
GRANTOR TRUST AGREEMENT
Dated as of July 29, 2004
------------------------------------------
IMH ASSETS CORP.
IMPAC CMB GRANTOR TRUST 2004-7-1 THROUGH 5,
GRANTOR TRUST CERTIFICATES, SERIES 2004-7
---------------
TABLE OF CONTENTS
PAGE
----
ARTICLE I
Definitions............................................................2
ARTICLE II
Conveyance of Underlying Class M Bonds;
Original Issuance of Certificates......................................6
Section 2.01 CONVEYANCE OF UNDERLYING CLASS M BONDS TO
GRANTOR TRUSTEE..................................................6
Section 2.02 ACCEPTANCE BY GRANTOR TRUSTEE......................7
Section 2.03 REPRESENTATIONS AND WARRANTIES CONCERNING THE
DEPOSITOR........................................................7
ARTICLE III
Accounts...............................................................8
Section 3.01 PAYMENT ACCOUNT....................................8
Section 3.02 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE
PAYMENT ACCOUNTS.................................................8
ARTICLE IV
Certificates...........................................................9
Section 4.01 CERTIFICATES.......................................9
Section 4.02 REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES....................................................10
Section 4.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.12
Section 4.04 PERSONS DEEMED OWNERS.............................12
Section 4.05 ERISA RESTRICTIONS................................12
ARTICLE V
Payments to Certificateholders........................................13
Section 5.01 PAYMENTS ON THE CERTIFICATES......................13
Section 5.02 ALLOCATION OF LOSSES..............................13
Section 5.03 PAYMENTS..........................................13
Section 5.04 STATEMENTS TO CERTIFICATEHOLDERS..................14
ARTICLE VI
Indemnification.......................................................15
ARTICLE VII
Concerning the Grantor Trustee........................................16
Section 7.01 DUTIES OF GRANTOR TRUSTEE.........................16
-i-
Section 7.02 CERTAIN MATTERS AFFECTING THE
GRANTOR TRUSTEE...................................17
Section 7.03 GRANTOR TRUSTEE NOT LIABLE FOR CERTIFICATES OR
MORTGAGE LOANS..................................................18
Section 7.04 GRANTOR TRUSTEE MAY OWN CERTIFICATES..............19
Section 7.05 GRANTOR TRUSTEE'S FEES AND EXPENSES...............19
Section 7.06 ELIGIBILITY REQUIREMENTS FOR GRANTOR TRUSTEE......19
Section 7.07 INSURANCE.........................................19
Section 7.08 RESIGNATION AND REMOVAL OF THE
GRANTOR TRUSTEE...................................19
Section 7.09 SUCCESSOR GRANTOR TRUSTEE.........................20
Section 7.10 MERGER OR CONSOLIDATION OF GRANTOR TRUSTEE........21
Section 7.11 APPOINTMENT OF CO-GRANTOR TRUSTEE OR SEPARATE
GRANTOR TRUSTEE.................................................21
Section 7.12 FEDERAL INFORMATION RETURNS AND REPORTS TO
CERTIFICATEHOLDERS; GRANTOR TRUST ADMINISTRATION................22
ARTICLE VIII
Termination...........................................................23
Section 8.01 TERMINATION UPON REPURCHASE BY THE DEPOSITOR OR
ITS DESIGNEE OR LIQUIDATION OF THE MORTGAGE LOANS...............23
ARTICLE IX
Miscellaneous Provisions..............................................23
Section 9.01 INTENT OF PARTIES.................................23
Section 9.02 ACTION UNDER UNDERLYING DOCUMENTS.................24
Section 9.03 AMENDMENT.........................................24
Section 9.04 RECORDATION OF AGREEMENT..........................25
Section 9.05 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS........25
Section 9.06 ACTS OF CERTIFICATEHOLDERS........................25
Section 9.07 GOVERNING LAW.....................................26
Section 9.08 NOTICES...........................................26
Section 9.09 SEVERABILITY OF PROVISIONS........................27
Section 9.10 SUCCESSORS AND ASSIGNS............................27
Section 9.11 ARTICLE AND SECTION HEADINGS......................27
Section 9.12 COUNTERPARTS......................................27
Section 9.13 NOTICE TO RATING AGENCIES.........................27
EXHIBITS
Exhibit A - Form of Class M Certificate
Exhibit B - Copies of Underlying Class M Bonds
Exhibit C - Underlying Operative Documents
-ii-
GRANTOR TRUST AGREEMENT
Grantor Trust Agreement dated July 29, 2004, between IMH Assets Corp., a
California corporation, as Depositor (the "Depositor") and Deutsche Bank
National Trust Company, a national banking association, not in its individual
capacity but solely as grantor trustee (the "Grantor Trustee").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Underlying Class M
Bonds. On the Closing Date, the Depositor will (i) transfer the Underlying Class
M-1-1 Bonds and Class M-1-2 Bonds to Impac CMB Grantor Trust 2004-7-1 and
receive the Class M-1 Certificates evidencing the entire beneficial ownership
interest in Trust Fund 1; (ii) transfer the Underlying Class M-2-1 Bonds and
Class M-2-2 Bonds to Impac CMB Grantor Trust 2004-7-2 and receive the Class M-2
Certificates evidencing the entire beneficial ownership interest in Trust Fund
2; (iii) transfer the Underlying Class M-3-1 Bonds and Class M-3-2 Bonds to
Impac CMB Grantor Trust 2004-7-3 and receive the Class M-3 Certificates
evidencing the entire beneficial ownership interest in Trust Fund 3; (iv)
transfer the Underlying Class M-4-1 Bonds and Class M-4-2 Bonds to Impac CMB
Grantor Trust 2004-7-4 and receive the Class M-4 Certificates evidencing the
entire beneficial ownership interest in Trust Fund 4; and (v) transfer the
Underlying Class M-5-1 Bonds and Class M-5-2 Bonds to Impac CMB Grantor Trust
2004-7-5 and receive the Class M-5 Certificates evidencing the entire beneficial
ownership interest in Trust Fund 5.
The Grantor Trustee on behalf of each Trust shall make an election for the
assets constituting the related Trust Fund to be treated for federal income tax
purposes as a grantor trust.
In consideration of the mutual agreements herein contained, the Depositor
and the Grantor Trustee agree as follows:
-1-
ARTICLE I
Definitions
Whenever used in this Agreement, the following words and phrases, unless
otherwise expressly provided or unless the context otherwise requires, shall
have the meanings specified in this Article. Capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Definitions
attached as Appendix A to the Indenture.
AGREEMENT: This Grantor Trust Agreement and all amendments hereof and
supplements hereto.
ASSUMED FINAL PAYMENT DATE: November 25, 2034, or if such day is not a
Business Day, the next succeeding Business Day.
AVAILABLE FUNDS: With respect to any Payment Date and each Certificate,
the sum of any payments received by the Grantor Trustee from the related
Underlying Class M Bonds minus the fees, expenses and indemnity amounts owed the
Grantor Trustee.
BOOK-ENTRY CERTIFICATES: Beneficial interests in the Certificates,
ownership and transfers of which shall be made through book entries by the
Depository as described in Section 4.01 of the Grantor Trust Agreement.
CERTIFICATE: Any grantor trust certificate evidencing a beneficial
ownership interest in the related Trust Fund signed and countersigned by the
Grantor Trustee in substantially the form annexed hereto as Exhibit A, with the
blanks therein appropriately completed.
CERTIFICATE OWNER: Any Person who is the beneficial owner of a Certificate
registered in the name of the Depository or its nominee.
CERTIFICATE REGISTER: The register maintained pursuant to Section 4.02(a).
CERTIFICATEHOLDER: A Holder of a Certificate.
CLASS: With respect to the Grantor Trust Certificates, X-0, X-0, X-0, X-0
or M-5.
CLOSING DATE: July 29, 2004.
CODE: The Internal Revenue Code of 1986, as amended.
CORPORATE TRUST OFFICE: The office of the Grantor Trustee at which at any
particular time its corporate trust business is administered, which office, at
the date of the execution of this Agreement, is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attention: IM0407.
CURRENT PRINCIPAL AMOUNT: With respect to any Certificate as of any
Payment Date, the initial principal amount of such Certificate, and reduced by
(i) all amounts distributed on previous Payment Dates on such Certificate with
respect to principal and (ii) the principal portion of all Underlying Realized
Losses allocated prior to such Payment Date to such Certificate. With respect to
the Certificates in the aggregate, the Current Principal Amount thereof will
equal the sum of the Current Principal Amounts of all Certificates.
-2-
CUT-OFF DATE: July 1, 2004.
DEPOSITORY: The Depository Trust Company, the nominee of which is Cede &
Co., or any successor thereto.
DEPOSITORY AGREEMENT: The meaning specified in Subsection 4.01(a) hereof.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DESIGNATED DEPOSITORY INSTITUTION: A depository institution (commercial
bank, federal savings bank mutual savings bank or savings and loan association)
or trust company (which may include the Grantor Trustee), the deposits of which
are fully insured by the FDIC to the extent provided by law.
DTC CUSTODIAN: Deutsche Bank National Trust Company, or its successors in
interest as custodian for the Depository.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
FRACTIONAL UNDIVIDED INTEREST: With respect to each Class of Certificates,
the fractional undivided interest evidenced by any Certificate, the numerator of
which is the Current Principal Amount of such Certificate and the denominator of
which is the aggregate Current Principal Amount of the related Class of such
Certificate.
GRANTOR TRUST: Any of the Trusts.
GRANTOR TRUSTEE: Deutsche Bank National Trust Company, or its successor in
interest, or any successor trustee appointed as herein provided.
HOLDER: The Person in whose name a Certificate is registered in the
Certificate Register, except that solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor or the Grantor Trustee or any Affiliate thereof shall be deemed not to
be outstanding and the Fractional Undivided Interest evidenced thereby shall not
be taken into account in determining whether the requisite percentage of
Fractional Undivided Interests necessary to effect any such consent has been
obtained.
INDEMNIFIED PERSONS: The Grantor Trustee and its officers, directors,
agents and employees and any separate co-trustee and its officers, directors,
agents and employees.
INDEPENDENT: When used with respect to any specified Person, this term
means that such Person (a) is in fact independent of the Depositor and of any
Affiliate of the Depositor (b) does not have any direct financial interest or
any material indirect financial interest in the Depositor or any Affiliate of
the Depositor and (c) is not connected with the Depositor or any Affiliate as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
INTEREST ACCRUAL PERIOD: With respect to any Payment Date and the
Certificates, (i) with respect to the Payment Date in August 2004, the period
commencing on the Closing Date and ending on the day preceding the Payment Date
in August 2004, and (ii) with respect to any Payment Date after the Payment Date
in August 2004, the period commencing on the Payment Date in the month
immediately preceding the month in which that Payment Date occurs and ending on
-3-
the day preceding that Payment Date.
LIBOR: LIBOR as determined by the Underlying Indenture Trustee pursuant to
the Underlying Indenture.
MOODY'S: Xxxxx'x Investors Service, Inc. or its successor in interest.
OPINION OF COUNSEL: A written opinion of counsel who is or are acceptable
to the Grantor Trustee and who, unless required to be Independent (an "Opinion
of Independent Counsel"), may be internal counsel for the Depositor.
PAYMENT ACCOUNT: With respect to the Trusts, any of the related trust
accounts created and maintained pursuant to Section 3.01, which shall be
denominated (i) "Deutsche Bank National Trust Company, as Grantor Trustee f/b/o
holders of IMH Assets Corp., Impac CMB Grantor Trust 2004-7-1, Class M-1 Grantor
Trust Certificates, Series 2004-7-1 Payment Account," (ii) "Deutsche Bank
National Trust Company, as Grantor Trustee f/b/o holders of IMH Assets Corp.,
Impac CMB Grantor Trust 2004-7-2, Class M-2 Grantor Trust Certificates, Series
2004-7-2 Payment Account," (iii) "Deutsche Bank National Trust Company, as
Grantor Trustee f/b/o holders of IMH Assets Corp., Impac CMB Grantor Trust
2004-7-3, Class M-3 Grantor Trust Certificates, Series 2004-7-3 Payment
Account," (iv) "Deutsche Bank National Trust Company, as Grantor Trustee f/b/o
holders of IMH Assets Corp., Impac CMB Grantor Trust 2004-7-4, Class M-4 Grantor
Trust Certificates, Series 2004-7-4 Payment Account," or (v) "Deutsche Bank
National Trust Company, as Grantor Trustee f/b/o holders of IMH Assets Corp.,
Impac CMB Grantor Trust 2004-7-5, Class M-5 Grantor Trust Certificates, Series
2004-7-5 Payment Account,"as applicable.
PERSON: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
RATING AGENCIES: S&P and Moody's.
RECORD DATE: With respect to the Certificates that are Book-Entry
Certificates and any Payment Date, the close of business on the Business Day
immediately preceding such Payment Date. With respect to any Certificates that
are not Book-Entry Certificates, the close of business on the last Business Day
of the calendar month preceding such Payment Date.
RESPONSIBLE OFFICER: Any officer assigned to the Corporate Trust Office
(or any successor thereto), including any Vice President, Assistant Vice
President, Trust Officer, any Assistant Secretary, any trust officer or any
other officer of the Grantor Trustee customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement.
S&P: Standard and Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
and its successors in interest.
STATEMENTS TO UNDERLYING CLASS M BONDHOLDERS: The statement provided
to the Holders of the Underlying Class M Bonds in accordance with Section 7.05
of the Underlying Indenture.
TRUST FUND 1 or TRUST 1: The corpus of the trust created by this
Agreement, consisting of the Underlying Class M-1-1 Bonds and Class M-1-2 Bonds
and the other related assets described in the third paragraph of Section 2.01.
-4-
TRUST FUND 2 or TRUST 2: The corpus of the trust created by this
Agreement, consisting of the Underlying Class M-2-1 Bonds and Class M-2-2 Bonds
and the other related assets described in the third paragraph of Section 2.01.
TRUST FUND 3 or TRUST 3: The corpus of the trust created by this
Agreement, consisting of the Underlying Class M-3-1 Bonds and Class M-3-2 Bonds
and the other related assets described in the third paragraph of Section 2.01.
TRUST FUND 4 or TRUST 4: The corpus of the trust created by this
Agreement, consisting of the Underlying Class M-4-1 Bonds and Class M-4-2 Bonds
and the other related assets described in the third paragraph of Section 2.01.
TRUST FUND 5 or TRUST 5: The corpus of the trust created by this
Agreement, consisting of the Underlying Class M-5-1 Bonds and Class M-5-2 Bonds
and the other related assets described in the third paragraph of Section 2.01.
TRUST FUND or TRUST: Any of Trust Fund 1, Trust Fund 2, Trust Fund 3,
Trust Fund 4 or Trust Fund 5, or Trust 1, Trust 2, Trust 3, Trust 4 or Trust 5.
UNDERLYING CLASS M BOND: With respect to the Class M-1 Certificates and
Trust Fund 1, the Class M-1-1 Bonds and Class M-1-2 Bonds; with respect to the
Class M-2 Certificates and Trust Fund 2, the Class M-2-1 Bonds and Class M-2-2
Bonds; with respect to the Class M-3 Certificates and Trust Fund 3, the Class
M-3-1 Bonds and Class M-3-2 Bonds; with respect to the Class M-4 Certificates
and Trust Fund 4, the Class M-4-1 Bonds and Class M-4-2 Bonds; and with respect
to the Class M-5 Certificates and Trust Fund 5, the Class M-5-1 Bonds and Class
M-5-2 Bonds, in each case, issued pursuant to the Underlying Indenture.
UNDERLYING INDENTURE TRUSTEE: Deutsche Bank National Trust Company, as
trustee under the Underlying Indenture.
UNDERLYING INTEREST SHORTFALLS: Any Unpaid Interest Shortfalls (as defined
in the Underlying Indenture) allocated to the Underlying Class M Bonds pursuant
to the Underlying Indenture.
UNDERLYING MORTGAGE LOANS: The mortgage loans deposited into the
Underlying Trust created by the Underlying Indenture.
UNDERLYING INDENTURE: The Indenture dated as of July 29, 2004, between the
Underlying Indenture Trustee and Impac CMB Trust Series 2004-7, attached hereto
as Exhibit E.
UNDERLYING REALIZED LOSSES: Any realized losses allocated to the related
Underlying Class M Bonds pursuant to the Underlying Indenture.
-5-
ARTICLE II
Conveyance of Underlying Class M Bonds;
Original Issuance of Certificates
Section 2.01 CONVEYANCE OF UNDERLYING CLASS M BONDS TO GRANTOR TRUSTEE.
The Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, convey and assign to the Grantor Trustee, in trust, (A) for the use
and benefit of the Class M-1 Certificateholders, (i) all the right, title and
interest of the Depositor in and to the Underlying Class M-1-1 Bonds and Class
M-1-2 Bonds, (ii) all payments on the Underlying Class M-1-1 Bonds and Class
M-1-2 Bonds after the Closing Date and (iii) all other assets constituting Trust
Fund 1; (B) for the use and benefit of the Class M-2 Certificateholders, (i) all
the right, title and interest of the Depositor in and to the Underlying Class
M-2-1 Bonds and Class M-2-2 Bonds, (ii) all payments on the Underlying Class
M-2-1 Bonds and Class M-2-2 Bonds after the Closing Date and (iii) all other
assets constituting Trust Fund 2; (C) for the use and benefit of the Class M-3
Certificateholders, (i) all the right, title and interest of the Depositor in
and to the Underlying Class M-3-1 Bonds and Class M-3-2 Bonds, (ii) all payments
on the Underlying Class M-3-1 Bonds and Class M-3-2 Bonds after the Closing Date
and (iii) all other assets constituting Trust Fund 3; (D) for the use and
benefit of the Class M-4 Certificateholders, (i) all the right, title and
interest of the Depositor in and to the Underlying Class M-4-1 Bonds and Class
M-4-2 Bonds, (ii) all payments on the Underlying Class M-4-1 Bonds and Class
M-4-2 Bonds after the Closing Date and (iii) all other assets constituting Trust
Fund 4; and (E) for the use and benefit of the Class M-5 Certificateholders, (i)
all the right, title and interest of the Depositor in and to the Underlying
Class M-5-1 Bonds and Class M-5-2 Bonds, (ii) all payments on the Underlying
Class M-5-1 Bonds and Class M-5-2 Bonds after the Closing Date and (iii) all
other assets constituting Trust Fund 5.
In connection with each such transfer and assignment, the Depositor is
causing the delivery to the Grantor Trustee of the related Underlying Class M
Bonds.
It is intended that the conveyance of the Seller's right, title and
interest in and to the related Underlying Class M Bonds and all other assets
constituting the related Trust Fund pursuant to this Agreement shall constitute,
and be construed as, an absolute sale of the Underlying Class M Bonds and the
other assets constituting such Trust Fund by the Depositor to the Grantor
Trustee for the benefit of the related Certificateholders. Furthermore, it is
not intended that such conveyance be deemed a pledge of the related Underlying
Class M Bonds and the other assets constituting the related Trust Fund by the
Depositor to the Grantor Trustee to secure a debt or other obligation of the
Depositor. However, in the event that, notwithstanding the intent of the
parties, the related Underlying Class M Bonds and the other assets constituting
the applicable Trust Fund are held to be the property of the Depositor, or if
for any other reason this Agreement is held or deemed to create a security
interest in the related Underlying Class M Bonds and the other assets
constituting the applicable Trust Fund, then it is intended as follows: (a) this
Agreement shall also be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the Uniform Commercial Code; (b) the conveyance provided for
in this Section shall be deemed to be a grant by the Depositor to the Grantor
Trustee of a security interest in all of the Seller's right, title and interest
in and to the related Underlying Class M Bonds, and all amounts payable to the
holders of the related Underlying Class M Bonds and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts from time
to time held or invested in the Payment Account, whether in the form of cash,
instruments, securities or other property; (c) the possession by the Grantor
Trustee or its agent of the related Underlying Class M Bonds and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting
-6-
the security interest pursuant to Articles 8 and 9 of the Uniform Commercial
Code; and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed to be notifications to or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Grantor Trustee for the purpose of perfecting such security interest
under applicable law.
It is also intended that each Trust Fund be classified (for Federal tax
purposes) as a grantor trust under subpart E, part I of subchapter J of chapter
1 of the Code, of which the Certificateholders are owners, rather than as an
association taxable as a corporation. The powers granted and obligations
undertaken in this Agreement shall be construed so as to further such intent.
Section 2.02 ACCEPTANCE BY GRANTOR TRUSTEE. The Grantor Trustee hereby
acknowledges the receipt by it of the Underlying Class M Bonds and declares that
it holds and will hold such Underlying Class M Bonds and all other assets and
documents included in the related Trust Fund, in trust, upon the trusts herein
set forth, for the exclusive use and benefit of all present and future
applicable Certificateholders in accordance with the terms of this Agreement.
Section 2.03 REPRESENTATIONS AND WARRANTIES CONCERNING THE DEPOSITOR. The
Depositor hereby represents and warrants to the Grantor Trustee as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of California
and (b) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary,
except where the failure so to qualify would not reasonably be expected to
have a material adverse effect on the Seller's business as presently
conducted or on the Purchaser's ability to enter into this Agreement and
to consummate the transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Depositor; and neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Depositor or its properties or the articles of incorporation or
by-laws of the Depositor, except those conflicts, breaches or defaults
which would not reasonably be expected to have a material adverse effect
on the Seller's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(iv) the execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Depositor enforceable against it in accordance with its
-7-
terms (subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally);
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Depositor
will be determined adversely to the Depositor and will if determined
adversely to the Depositor materially and adversely affect the Seller's
ability to enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any order
of any court, administrative agency, arbitrator or governmental body so as
to materially and adversely affect the transactions contemplated by this
Agreement; and
(vii) immediately prior to the transfer and assignment to the
Grantor Trustee, each Underlying Certificate was not subject to an
assignment or pledge, and the Depositor had good and marketable title
thereto and was the sole owner thereof and had full right to transfer and
sell such Underlying Certificate to the Grantor Trustee free and clear of
any encumbrance, equity, lien, pledge, charge, claim or security interest.
ARTICLE III
Accounts
Section 3.01 PAYMENT ACCOUNT.
(a) The Grantor Trustee shall establish and maintain in the name of the
Grantor Trustee, for the benefit of the related Certificateholders, each Payment
Account as a segregated trust account or accounts. The Grantor Trustee will
deposit in the related Payment Account any amounts received with respect to the
related Underlying Class M Bonds upon receipt thereof.
(b) All amounts deposited to the related Payment Account shall be held by
the Grantor Trustee in trust for the benefit of the related Certificateholders
in accordance with the terms and provisions of this Agreement.
(c) Each Payment Account shall constitute a trust account of the related
Trust Fund segregated on the books of the Grantor Trustee and held by the
Grantor Trustee in trust in its Corporate Trust Office, and such Payment Account
and the funds deposited therein shall not be subject to, and shall be protected
from, all claims, liens, and encumbrances of any creditors or depositors of the
Grantor Trustee (whether made directly, or indirectly through a liquidator or
receiver of the Grantor Trustee). The amount at any time credited to any Payment
Account shall be held uninvested.
Section 3.02 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE PAYMENT
ACCOUNTS.
(a) The Grantor Trustee may clear and terminate the related Payment
Account pursuant to Section 10.01 and remove amounts from time to time deposited
in error.
(b) On an ongoing basis, the Grantor Trustee shall withdraw from the
related Payment Account any fees, costs and expenses recoverable by the Grantor
Trustee pursuant to Sections 6.01 and 7.05.
-8-
(c) On each Payment Date, the Grantor Trustee shall pay the amount
distributable to the Holders of the Certificates in accordance with Section 5.01
from the funds in the related Payment Account, provided that payments on the
Underlying Bonds are received by the Grantor Trustee by no later than 4:00 p.m.
New York time.
ARTICLE IV
Certificates
Section 4.01 CERTIFICATES.
(a) The Depository, the Depositor and the Grantor Trustee have entered
into a Depository Agreement dated as of July 29, 2004 (the "Depository
Agreement"). The Certificates shall at all times remain registered in the name
of the Depository or its nominee and at all times: (i) registration of such
Certificates may not be transferred by the Grantor Trustee except to a successor
to the Depository; (ii) ownership and transfers of registration of such
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iii) the Depository may collect its usual
and customary fees, charges and expenses from its Depository Participants; (iv)
the Grantor Trustee shall deal with the Depository as representative of such
Certificate Owners of the Certificates for purposes of exercising the rights of
Certificateholders under this Agreement, and requests and directions for and
votes of such representative shall not be deemed to be inconsistent if they are
made with respect to different Certificate Owners; and (v) the Grantor Trustee
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants.
All transfers by Certificate Owners of the Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owners. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
(b) If (i)(A) the Depositor advises the Grantor Trustee in writing that
the Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Grantor Trustee or the Depositor is
unable to locate a qualified successor within 30 days or (ii) the Depositor at
its option and with the Grantor Trustee's consent advises the Grantor Trustee in
writing that it elects to terminate the book-entry system through the
Depository, the Grantor Trustee shall request that the Depository notify all
Certificate Owners of the occurrence of any such event and of the availability
of definitive, fully registered Certificates to Certificate Owners requesting
the same. Upon surrender to the Grantor Trustee of the Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration, the Grantor Trustee shall issue the definitive Certificates.
Neither the Depositor nor the Grantor 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.
(c) The Certificates shall have the following designations and initial
principal amount:
DESIGNATION INITIAL PRINCIPAL AMOUNT
----------- ------------------------
M-1 $38,500,000
M-2 $60,499,000
M-3 $44,000,000
-9-
M-4 $60,499,000
M-5 $60,499,000
(d) With respect to each Payment Date, the Certificates shall accrue
interest during the related Interest Accrual Period. With respect to each
Payment Date and the Certificates, interest shall be calculated, on the basis of
a 360-day year and the actual number of days in the related Interest Accrual
Period, based upon the respective Certificate Interest Rate and the Current
Principal Amount of the Certificates applicable to such Payment Date (before
giving effect to any payments on the Certificates on such date).
(e) The Certificates shall be substantially in the form set forth in
Exhibit A. On original issuance, the Grantor Trustee shall sign, countersign and
shall deliver them at the direction of the Depositor. Pending the preparation of
definitive Certificates, the Grantor Trustee may sign and countersign temporary
Certificates that are printed, lithographed or typewritten, in authorized
denominations, substantially of the tenor of the definitive Certificates in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers or authorized signatories
executing such Certificates may determine, as evidenced by their execution of
such Certificates. If temporary Certificates are issued, the Depositor will
cause definitive Certificates to be prepared without unreasonable delay. After
the preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office of the Grantor Trustee, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Certificates, the
Grantor Trustee shall sign and countersign and deliver in exchange therefor a
like aggregate principal amount, in authorized denominations, of definitive
Certificates. Until so exchanged, such temporary Certificates shall in all
respects be entitled to the same benefits as definitive Certificates.
(f) The Book-Entry Certificates will be registered as a single Certificate
for each class of Certificates issued under this Agreement and will be held by a
nominee of the Depository or the DTC Custodian, and beneficial interests will be
held by investors through the book-entry facilities of the Depository in minimum
denominations of $25,000 and increments of $1.00 in excess thereof. On the
Closing Date, the Grantor Trustee shall execute and countersign the Certificate
in the entire Current Principal Amount of the Certificates. The Grantor Trustee
shall sign the Certificates by facsimile or manual signature and countersign
them by manual signature on behalf of the Grantor Trustee by one or more
authorized signatories, each of whom shall be Responsible Officers of the
Grantor Trustee or its agent. A Certificate bearing the manual and facsimile
signatures of individuals who were the authorized signatories of the Grantor
Trustee or its agent at the time of issuance shall bind the Grantor Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
positions prior to the delivery of such Certificate.
(g) No Certificate shall be entitled to any benefit under this Agreement,
or be valid for any purpose, unless there appears on such Certificate the
manually executed countersignature of the Grantor Trustee or its agent, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates issued on the Closing Date shall be dated the Closing Date. All
Certificates issued thereafter shall be dated the date of their
countersignature.
Section 4.02 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Grantor Trustee shall maintain at its Corporate Trust Office a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Grantor Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
-10-
(b) Subject to Subsection 4.02(e), upon surrender for registration of
transfer of any Certificate at any office or agency of the Grantor Trustee
maintained for such purpose, the Grantor Trustee shall sign, countersign and
shall deliver, in the name of the designated transferee or transferees, a new
Certificate of a like aggregate Fractional Undivided Interest, but bearing a
different number.
(c) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like aggregate
Fractional Undivided Interest, upon surrender of the Certificates to be
exchanged at any such office or agency; PROVIDED, HOWEVER, that no Certificate
may be exchanged for new Certificates unless the original Fractional Undivided
Interest represented by each such new Certificate (i) is at least equal to the
minimum authorized denomination or (ii) is acceptable to the Depositor as
indicated to the Grantor Trustee in writing. Whenever any Certificates are so
surrendered for exchange, the Grantor Trustee shall sign and countersign and the
Grantor Trustee shall deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
In addition, Certificateholders representing, in the aggregate, no less
than a 100% Fractional Undivided Interest in a Class M Certificate may surrender
such Certificates at the offices of the Grantor Trustee in exchange for the
Underlying Class M Bonds held by the related Trust Fund; PROVIDED, HOWEVER, that
no such Class M Bonds shall be Book-Entry Bonds.
(d) If the Grantor Trustee so requires, every Certificate presented or
surrendered for transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer, with a signature guarantee, in
form satisfactory to the Grantor Trustee, duly executed by the holder thereof or
his or her attorney duly authorized in writing.
(e) No service charge shall be made for any transfer or exchange of
Certificates, but the Grantor Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
(f) The Grantor Trustee shall cancel all Certificates surrendered for
transfer or exchange but shall either retain such Certificates in accordance
with its standard retention policy or for such further time as is required by
the record retention requirements of the Securities Exchange Act of 1934, as
amended, and thereafter may destroy such Certificates.
(g) The following legend shall be placed on the Certificates, whether upon
original issuance or upon issuance of any other Certificate in exchange therefor
or upon transfer thereof at any time:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH
IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, UNLESS THE PROPOSED TRANSFEREE IS DEEMED TO MAKE THE
REPRESENTATION IN SECTION 4.05 OF THE AGREEMENT OR UNLESS THE PROPOSED
TRANSFEREE PROVIDES THE DEPOSITOR AND THE GRANTOR TRUSTEE WITH AN OPINION
OF COUNSEL SATISFACTORY TO THOSE ENTITIES, WHICH OPINION WILL NOT BE AT
THE EXPENSE OF THOSE ENTITIES, THAT THE PURCHASE OF THE CLASS M-[_]
CERTIFICATES BY OR ON BEHALF OF THE PLAN INVESTOR, IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT
-11-
CONSTITUTE OR RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN
ASSETS" SUBJECT TO THE PROHIBITED TRANSACTIONS PROVISIONS OF ERISA OR CODE
SECTION 4975 AND WILL NOT SUBJECT THE DEPOSITOR OR THE GRANTOR TRUSTEE TO
ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE GRANTOR TRUST
AGREEMENT.
Section 4.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
(a) If (i) any mutilated Certificate is surrendered to the Grantor
Trustee, or the Grantor Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Grantor Trustee such security or indemnity as it may require to save it
harmless, and (iii) the Grantor Trustee has not received notice that such
Certificate has been acquired by a third Person, the Grantor Trustee shall sign,
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
Fractional Undivided Interest but in each case bearing a different number. The
mutilated, destroyed, lost or stolen Certificate shall thereupon be canceled of
record by the Grantor Trustee and shall be of no further effect and evidence no
rights.
(b) Upon the issuance of any new Certificate under this Section 4.03, the
Grantor Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Grantor Trustee) connected
therewith. Any duplicate Certificate issued pursuant to this Section 4.03 shall
constitute complete and indefeasible evidence of ownership in each Trust Fund,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 4.04 PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Grantor Trustee and
any agent of the Depositor or the Grantor Trustee may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving payments pursuant to Section 5.01 and for all other
purposes whatsoever. Neither the Depositor, the Grantor Trustee nor any agent of
the Depositor or the Grantor Trustee shall be affected by notice to the
contrary. No Certificate shall be deemed duly presented for a transfer effective
on any Record Date unless the Certificate to be transferred is presented no
later than the close of business on the third Business Day preceding such Record
Date.
Section 4.05 ERISA RESTRICTIONS. By acquiring a Class M-1, Class M-2,
Class M-3, Class M-4 or Class M-5 Certificate, each purchaser will be deemed to
represent that either (1) it is not acquiring the Certificate with Plan Assets;
or (2) (A) the acquisition and holding of the Certificate will not give rise to
a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code and (B) the Certificate has an investment-grade rating at the time of
acquisition.
Alternatively, regardless of the rating of the Class M Certificates, a
Person investing on behalf of or with Plan Assets of a Plan may provide the
Grantor Trustee with an Opinion of Counsel, which Opinion of Counsel will not be
at the expense of the Issuer, the Seller, the Depositor, any Underwriter, the
Owner Trustee, the Indenture Trustee, the Grantor Trustee, the Master Servicer
or any successor servicer, which opines that the acquisition, holding and
transfer of such Offered Security 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 Grantor Trustee, the Master Servicer or any successor
servicer to any obligation in addition to those undertaken in the Indenture or
this Agreement, as applicable.
-12-
ARTICLE V
Payments to Certificateholders
Section 5.01 PAYMENTS ON THE CERTIFICATES.
(a) Interest and principal on the Certificates will be distributed monthly
on each Payment Date, commencing in August 2004, in an aggregate amount equal to
the Available Funds for such Payment Date. On each Payment Date, the Available
Funds shall be distributed in the following order of priority and to the extent
of Available Funds:
(i) FIRST, Accrued Certificate Interest on the Certificates shall be
distributed to the Certificates for such Payment Date;
(ii) SECOND, any Accrued Certificate Interest on the Certificates
remaining undistributed from previous Payment Dates, to the extent of
remaining Available Funds; and
(iii) THIRD, any principal payments received from the related
Underlying Class M Bonds shall be distributed to the related Certificates,
in reduction of the related Current Principal Amount thereof, until the
Current Principal Amount thereof has been reduced to zero.
(b) No Accrued Certificate Interest will be payable with respect to the
Certificates after the Payment Date on which the Current Principal Amount of the
Certificates has been reduced to zero.
Section 5.02 ALLOCATION OF LOSSES.
(a) On or prior to each Determination Date, the Grantor Trustee shall
determine the amount of any Underlying Realized Losses in respect of the related
Underlying Class M Bond.
(b) With respect to any Certificates on any Payment Date, the principal
portion of each Underlying Realized Loss on the related Underlying Class M Bonds
shall be allocated to the Current Principal Amount of the related Certificates,
until the Current Principal Amount thereof has been reduced to zero.
(c) Any Realized Losses allocated to the Certificates shall be allocated
among the related Certificates in proportion to their respective Current
Principal Amounts. Any allocation of Realized Losses shall be accomplished by
reducing the Current Principal Amount of the related Certificates on the related
Payment Date.
(d) Realized Losses shall be allocated on the Payment Date in the month
following the month in which such loss was incurred and, in the case of the
principal portion thereof, after giving effect to payments made on such Payment
Date.
Section 5.03 PAYMENTS.
(a) On each Payment Date, other than the final Payment Date, the Grantor
Trustee shall distribute to each Certificateholder of record on the directly
preceding Record Date, for each class of Certificates issued under this
Agreement, the Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest represented by such Holder's Certificates) of all
amounts required to be distributed on such Payment Date to the Certificates,
based on information provided
-13-
to the Grantor Trustee by the Underlying Indenture Trustee. The Grantor Trustee
shall calculate the Available Funds received from the Underlying Bonds and the
Grantor Trustee shall determine the amount to be distributed to each
Certificateholder. All of the Grantor Trustee's calculations of payments shall
be based solely on information provided to the Grantor Trustee by the Underlying
Indenture Trustee. The Grantor Trustee shall not be required to confirm, verify
or recompute any such information but shall be entitled to rely conclusively on
such information.
(b) Payment of the above amounts to each Certificateholder shall be made
(i) by check mailed to each Certificateholder entitled thereto at the address
appearing in the Certificate Register or (ii) upon receipt by the Grantor
Trustee on or before the fifth Business Day preceding the Record Date of written
instructions from a Certificateholder by wire transfer to a United States dollar
account maintained by the payee at any United States depository institution with
appropriate facilities for receiving such a wire transfer; PROVIDED, HOWEVER,
that the final payment in respect of the Certificates will be made only upon
presentation and surrender of such respective Certificates at the office or
agency of the Grantor Trustee specified in the notice to Certificateholders of
such final payment.
Section 5.04 STATEMENTS TO CERTIFICATEHOLDERS.
(a) Concurrently with each payment to Certificateholders, the Grantor
Trustee shall make available via the Grantor Trustee's internet website as set
forth below, all of the information contained in the Statement to Underlying
Class M Bondholders and the following:
(i) the Certificate Interest Rate on the related Certificates;
(ii) the amount of any interest payments made to the related
Certificates; and
(iii) the amount of any principal payments made to the related
Certificates.
The Grantor Trustee may make available each month, to any interested
party, the monthly statement to Certificateholders via the Grantor Trustee's
website initially located at xxx.xxx.xx.xxx. Parties that are unable to use the
above payment option are entitled to have a paper copy mailed to them via first
class mail by written request indicating such. The Grantor Trustee shall have
the right to change the way such reports are distributed in order to make such
statement more convenient and/or more accessible to the Certificateholders, and
the Grantor Trustee shall provide timely and adequate notification to all
Certificateholders regarding any such change.
(b) By April 30 of each year beginning in 2005, the Grantor Trustee will
furnish such report to each Holder of the Certificates of record at any time
during the prior calendar year as to the aggregate of amounts reported pursuant
to subclauses (a)(i) and (a)(ii) above with respect to each of class of the
Certificates, plus such other customary information as the Grantor Trustee may
determine to be necessary and/or to be required by the Internal Revenue Service
or by a federal or state law or rules or regulations to enable such Holders to
prepare their tax returns for such calendar year. Such obligations shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Grantor Trustee pursuant to the
requirements of the Code.
-14-
ARTICLE VI
Indemnification
Section 6.01 INDEMNIFICATION OF THE GRANTOR TRUSTEE. Each Trust shall
indemnify the Indemnified Persons for, and will hold them harmless against, any
loss, liability or expense incurred on their part, arising out of, or in
connection with, this Agreement and the Certificates, including the costs and
expenses (including reasonable legal fees and expenses) of defending themselves
against any such claim other than any loss, liability or expense incurred by
reason of such Indemnified Person's willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. This indemnity shall survive the resignation
or removal of the Grantor Trustee and the termination of this Agreement.
-15-
ARTICLE VII
Concerning the Grantor Trustee
Section 7.01 DUTIES OF GRANTOR TRUSTEE.
(a) The Grantor Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Grantor
Trustee.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically required
to be furnished to the Grantor Trustee pursuant to any provision of this
Agreement, the Grantor Trustee shall examine them to determine whether they are
in the form required by this Agreement; PROVIDED, HOWEVER, that the Grantor
Trustee shall be not responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Underlying Indenture Trustee; PROVIDED, FURTHER, that the
Grantor Trustee shall not be responsible for the accuracy or verification of any
calculation provided to it pursuant to this Agreement.
(c) On each Payment Date, the Grantor Trustee shall make monthly payments
and the final payment to the Certificateholders from funds in the related
Payment Account as provided in Section 5.01 herein based on the report of the
Underlying Indenture Trustee.
(d) No provision of this Agreement shall be construed to relieve the
Grantor Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; PROVIDED, HOWEVER, that:
(i) The duties and obligations of the Grantor Trustee shall be
determined solely by the express provisions of this Agreement, the Grantor
Trustee shall not be liable except for the performance of its duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Grantor Trustee and, in the absence of bad faith on the part of the
Grantor Trustee, the Grantor Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Grantor
Trustee, and conforming to the requirements of this Agreement;
(ii) The Grantor Trustee shall not be liable in its individual
capacity for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Grantor Trustee, unless it shall be
proved that the Grantor Trustee was negligent in ascertaining the
pertinent facts;
(iii) The Grantor Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the directions of the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of each Trust
Fund, if such action or non-action relates to the time, method and place
of conducting any proceeding for any remedy available to the Grantor
Trustee, or exercising any trust or other power conferred upon the Grantor
Trustee under this Agreement;
(iv) The Grantor Trustee shall not in any way be liable by reason of
any insufficiency in any Payment Account held unless it is determined by a
court of competent jurisdiction that the Grantor Trustee's gross
negligence or willful misconduct was the primary cause of such
insufficiency; and
-16-
(v) Anything in this Agreement to the contrary notwithstanding, in
no event shall the Grantor Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Grantor Trustee has been advised of
the likelihood of such loss or damage and regardless of the form of
action.
The Grantor Trustee shall not be required 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 there is
reasonable ground for believing that the repayment of such funds or indemnity
satisfactory to the Grantor Trustee against such risk or liability is not
reasonably assured to it.
(e) All funds received by the Grantor Trustee and required to be deposited
in the Payment Account pursuant to this Agreement will be promptly so deposited
by the Grantor Trustee.
(f) Except for those actions that the Grantor Trustee is required to take
hereunder, the Grantor Trustee shall not have any obligation or liability to
take any action or to refrain from taking any action hereunder in the absence of
written direction as provided hereunder.
Section 7.02 CERTAIN MATTERS AFFECTING THE GRANTOR TRUSTEE. Except as
otherwise provided in Section 7.01:
(i) The Grantor Trustee may rely and shall be protected in acting or
refraining from acting in reliance on any resolution, certificate of the
Depositor or the Underlying Indenture Trustee, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) The Grantor Trustee may consult with counsel and any advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel:
(iii) The Grantor Trustee shall not be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement, other
than its obligation to give notices, make payments and deliver reports and
statements pursuant to this Agreement, or to institute, conduct or defend
any litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Grantor Trustee security or indemnity satisfactory to the Grantor Trustee
against the costs, expenses and liabilities which may be incurred therein
or thereby;
(iv) The Grantor Trustee shall not be liable in its individual
capacity for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) The Grantor Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 25% of each Trust Fund and provided that the
payment within a reasonable time to the Grantor Trustee of the costs,
expenses or liabilities likely to be
-17-
incurred by it in the making of such investigation is, in the opinion of
the Grantor Trustee, reasonably assured to the Grantor Trustee by the
security afforded to it by the terms of this Agreement. The Grantor
Trustee may require indemnity satisfactory to the Grantor Trustee against
such expense or liability as a condition to taking any such action. The
expense of every such examination shall be paid by the Certificateholders
requesting the investigation;
(vi) The Grantor Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or through
Affiliates, agents or attorneys. The Grantor Trustee shall not be liable
or responsible for the misconduct or negligence of any of the Grantor
Trustee's agents or attorneys or a custodian or paying agent appointed
hereunder by the Grantor Trustee with due care;
(vii) Should the Grantor Trustee deem the nature of any action
required on its part, other than a payment or transfer under Subsection
3.02 or Section 5.01, to be unclear, the Grantor Trustee may require prior
to such action that it be provided by the Depositor with reasonable
further instructions;
(viii)The right of the Grantor Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and the
Grantor Trustee shall not be accountable for other than its negligence or
willful misconduct in the performance of any such act; and
(ix) The Grantor Trustee shall not be required to give any bond or
surety with respect to the execution of the trust created hereby or the
powers granted hereunder, except as provided in Section 7.07.
Section 7.03 GRANTOR TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE
LOANS. The recitals contained herein and in the Certificates (other than the
signature and countersignature of the Grantor Trustee on the Certificates) shall
be taken as the statements of the Depositor, and the Grantor Trustee shall not
have any responsibility for their correctness. The Grantor Trustee does not make
any representation as to the validity or sufficiency of the Certificates (other
than the signature and countersignature of the Grantor Trustee on the
Certificates). The Grantor Trustee's signature and countersignature (or
countersignature of its agent) on the Certificates shall be solely in its
capacity as Grantor Trustee and shall not constitute the Certificates an
obligation of the Grantor Trustee in any other capacity. The Grantor Trustee
shall not be accountable for the use or application by the Depositor of any of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor with respect to the Mortgage
Loans. The Grantor Trustee shall not be responsible for the legality or validity
of this Agreement or any document or instrument relating to this Agreement, the
validity of the execution of this Agreement or of any supplement hereto or
instrument of further assurance, or the validity, priority, perfection or
sufficiency of the security for the Certificates issued hereunder or intended to
be issued hereunder. The Grantor Trustee shall not at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of each Trust Fund or its ability to
generate the payments to be distributed to Certificateholders, under this
Agreement. The Grantor Trustee shall not have any responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Agreement.
-18-
Section 7.04 GRANTOR TRUSTEE MAY OWN CERTIFICATES. The Grantor Trustee in
its individual capacity or in any capacity other than as Grantor Trustee
hereunder may become the owner or pledgee of any Certificates with the same
rights it would have if it were not Grantor Trustee, and may otherwise deal with
the parties hereto.
Section 7.05 GRANTOR TRUSTEE'S FEES AND EXPENSES. The fees of the Grantor
Trustee shall be paid in accordance with the provisions of this Agreement. In
addition, the Grantor Trustee will be entitled to recover from the related
Payment Account pursuant to Section 3.02(b) all reasonable out- of-pocket
expenses, disbursements and advances and the expenses of the Grantor Trustee in
connection with any breach of this Agreement or any claim or legal action
(including any pending or threatened claim or legal action) incurred or made by
the Grantor Trustee in the administration of the trusts hereunder (including the
reasonable compensation, expenses and disbursements of its counsel) except any
such expense, disbursement or advance as may arise from its negligence or
willful misconduct or which is the responsibility of the Certificateholders. If
funds in the related Payment Account are insufficient therefor, the Grantor
Trustee shall recover such expenses from the Depositor. Such compensation and
reimbursement obligation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust.
Section 7.06 ELIGIBILITY REQUIREMENTS FOR GRANTOR TRUSTEE. The Grantor
Trustee and any successor Grantor Trustee shall during the entire duration of
this Agreement be a state bank or trust company or a national banking
association organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Grantor Trustee, $50,000,000, subject
to supervision or examination by federal or state authority and rated "BBB" or
higher by Standard & Poor's and "Baa2" or higher by Moody's with respect to any
outstanding long-term unsecured unsubordinated debt, and, in the case of a
successor Grantor Trustee other than pursuant to Section 7.10, rated in one of
the two highest long- term debt categories of, or otherwise acceptable to, each
of the Rating Agencies. If the Grantor Trustee publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 7.06
the combined capital and surplus of such corporation shall be deemed to be its
total equity capital (combined capital and surplus) as set forth in its most
recent report of condition so published. In case at any time the Grantor Trustee
shall cease to be eligible in accordance with the provisions of this Section
7.06, the Grantor Trustee shall resign immediately in the manner and with the
effect specified in Section 7.08.
Section 7.07 INSURANCE. The Grantor Trustee, at its own expense, shall at
all times maintain and keep in full force and effect: (i) fidelity insurance,
(ii) theft of documents insurance and (iii) forgery insurance (which may be
collectively satisfied by a "Financial Institution Bond" and/or a "Bankers'
Blanket Bond"). All such insurance shall be in amounts, with standard coverage
and subject to deductibles, as are customary for insurance typically maintained
by banks or their affiliates which act as custodians for investor-owned mortgage
pools. A certificate of an officer of the Grantor Trustee as to the Grantor
Trustee's compliance with this Section 7.07 shall be furnished to any
Certificateholder upon reasonable written request.
Section 7.08 RESIGNATION AND REMOVAL OF THE GRANTOR TRUSTEE.
(a) The Grantor Trustee may at any time resign and be discharged from each
Trust hereby created by giving written notice thereof to the Depositor, with a
copy to the Rating Agencies. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Grantor Trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
each of the resigning Grantor Trustee and the successor Grantor Trustee. If no
successor Grantor Trustee
-19-
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Grantor Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Grantor Trustee. The Grantor Trustee may not resign from any Trust created
hereby without also resigning as Underlying Indenture Trustee under the
Underlying Indenture.
(b) If at any time the Grantor Trustee shall cease to be eligible in
accordance with the provisions of Section 7.06 and shall fail to resign after
written request therefor by the Depositor or if at any time the Grantor Trustee
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Grantor Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Grantor Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor shall promptly remove the Grantor Trustee and
appoint a successor Grantor Trustee by written instrument, in triplicate, one
copy of which instrument shall be delivered to the Grantor Trustee so removed
and the successor Grantor Trustee.
(c) The Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 100% of each Trust Fund may at any time remove the
Grantor Trustee and appoint a successor Grantor Trustee by written instrument or
instruments, in quadruplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Depositor and the Grantor Trustee so removed and the successor so appointed.
(d) No resignation or removal of the Grantor Trustee and appointment of a
successor Grantor Trustee pursuant to any of the provisions of this Section 7.08
shall become effective except upon appointment of and acceptance of such
appointment by the successor Grantor Trustee as provided in Section 7.09.
Section 7.09 SUCCESSOR GRANTOR TRUSTEE.
(a) Any successor Grantor Trustee appointed as provided in Section 7.08
shall execute, acknowledge and deliver to the Depositor and to its predecessor
Grantor Trustee an instrument accepting such appointment hereunder. The
resignation or removal of the predecessor Grantor Trustee shall then become
effective and such successor Grantor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Grantor Trustee herein. The predecessor Grantor Trustee shall after
payment of its outstanding fees and expenses promptly deliver to the successor
Grantor Trustee all assets and records of each Trust held by it hereunder, and
the Depositor and the predecessor Grantor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Grantor Trustee all
such rights, powers, duties and obligations.
(b) No successor Grantor Trustee shall accept appointment as provided in
this Section 7.09 unless at the time of such acceptance such successor Grantor
Trustee shall be eligible under the provisions of Section 7.06.
(c) Upon acceptance of appointment by a successor Grantor Trustee as
provided in this Section 7.09, the successor Grantor Trustee shall mail notice
of the succession of such Grantor Trustee hereunder to all Certificateholders at
their addresses as shown in the Certificate Register and to the Rating Agencies.
-20-
Section 7.10 MERGER OR CONSOLIDATION OF GRANTOR TRUSTEE. Any state bank or
trust company or national banking association into which the Grantor Trustee may
be merged or converted or with which it may be consolidated or any state bank or
trust company or national banking association resulting from any merger,
conversion or consolidation to which the Grantor Trustee shall be a party, or
any state bank or trust company or national banking association succeeding to
all or substantially all of the corporate trust business of the Grantor Trustee
shall be the successor of the Grantor Trustee hereunder, provided such state
bank or trust company or national banking association shall be eligible under
the provisions of Section 7.06. Such succession shall be valid without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 7.11 APPOINTMENT OF CO-GRANTOR TRUSTEE OR SEPARATE GRANTOR
TRUSTEE.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of any Trust or property constituting the same may at the time be located, the
Depositor and the Grantor Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons at the
expense of the Depositor approved by the Grantor Trustee and the Depositor to
act as co-trustee or co-trustees, jointly with the Grantor Trustee, or separate
trustee or separate trustees, of all or any part of any Trust, and to vest in
such Person or Persons, in such capacity, such title to any Trust, or any part
thereof, and, subject to the other provisions of this Section 7.11, such powers,
duties, obligations, rights and trusts as the Depositor and the Grantor Trustee
may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within 15
days after the receipt by it of a written request so to do, the Grantor Trustee
shall have the power to make such appointment without the Depositor at the
expense of the Depositor .
(c) No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor Grantor Trustee under Section 7.06
hereunder and no notice to Certificateholders of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 7.08
hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 7.11, all rights, powers, duties and obligations
conferred or imposed upon the Grantor Trustee and required to be conferred on
such co-trustee shall be conferred or imposed upon and exercised or performed by
the Grantor Trustee and such separate trustee or co-trustee jointly, except to
the extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Grantor 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 any Trust or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Grantor Trustee.
(e) Any notice, request or other writing given to the Grantor 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 Agreement and
the conditions of this Article VII. 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
Grantor Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Grantor
-21-
Trustee. Every such instrument shall be filed with the Grantor Trustee.
(f) To the extent not prohibited by law, any separate trustee or
co-trustee may, at any time, request the Grantor Trustee, its agent or
attorney-in-fact, with full power and authority, to do any lawful act under or
with respect to this Agreement 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 Grantor Trustee, to the extent permitted by law,
without the appointment of a new or successor Grantor Trustee.
(g) No trustee under this Agreement shall be liable by reason of any act
or omission of another trustee under this Agreement. The Depositor and the
Grantor Trustee acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Section 7.12 FEDERAL INFORMATION RETURNS AND REPORTS TO
CERTIFICATEHOLDERS; GRANTOR TRUST ADMINISTRATION.
(a) The Grantor Trustee covenants and agrees that it shall perform its
obligations hereunder in a manner so as to maintain the status of each Trust
Fund as a grantor trust under subpart E, part I of subchapter J of chapter 1 of
the Code and not as an association taxable as a corporation, as a taxable
mortgage pool, or as a partnership and to prevent the imposition of any federal,
state or local income or other tax on each Trust Fund.
(b) The Grantor Trustee shall furnish or cause to be furnished to holders
of Certificates and shall file or cause to be filed with the Internal Revenue
Service, together with Form 1041 or such other form as may be applicable, such
information with respect to the income and deductions of each Trust Fund at the
time or times and in the manner required by the Code, including such other
customary factual information as is available to the Grantor Trustee to enable
Certificateholders to prepare their tax returns, including information required
with respect to computing the accrual of original issue and market discount.
(c) Notwithstanding any other provisions of this Agreement, the Grantor
Trustee shall comply with all federal withholding requirements with respect to
payments to Certificateholders. The consent of Certificateholders shall not be
required for any such withholding. In the event the Grantor Trustee withholds
any amount from any Certificateholder pursuant to federal withholdings
requirements, the Grantor Trustee shall indicate to such Certificateholder the
amount so withheld.
(d) The Grantor Trustee agrees to indemnify each Trust Fund and the
Depositor for any taxes and costs including, without limitation, any reasonable
attorneys fees imposed on or incurred by each Trust Fund or the Depositor as a
result of a breach of the Grantor Trustee's covenants set forth in this Section
7.12 (except to the extent such breach is as a result of the negligence or
willful misconduct of the Depositor or the Master Servicer).
-22-
ARTICLE VIII
Termination
Section 8.01 TERMINATION UPON REPURCHASE BY THE DEPOSITOR OR ITS DESIGNEE
OR LIQUIDATION OF THE MORTGAGE LOANS.
(a) The respective obligations and responsibilities of the Depositor and
the Grantor Trustee created hereby with respect to each Trust Fund, other than
the obligation of the Grantor Trustee to make payments to the related
Certificateholders as hereinafter set forth, shall terminate upon the later of
the making of the final payment or other liquidation, or any advance with
respect thereto, of the last Underlying Class M Bond remaining in the related
Trust Fund.
(b) In no event, however, shall any Trust created hereby continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. James's, living on the date of this Agreement.
(c) The Grantor Trustee shall give notice of any termination of the
Grantor Trust to the Certificateholders, with a copy to the Rating Agencies,
upon which the Certificateholders shall surrender their Certificates to the
Grantor Trustee for payment of the final payment and cancellation. Such notice
shall be given by letter, mailed not earlier than the l5th day and not later
than the 25th day of the month next preceding the month of such final payment,
and shall specify (i) the Payment Date upon which final payment of the
Certificates will be made upon presentation and surrender of the Certificates at
the office of the Grantor Trustee therein designated, (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Grantor Trustee therein
specified.
(d) Upon the presentation and surrender of the Certificates, the Grantor
Trustee shall distribute to the remaining Certificateholders, in accordance with
their respective interests, all distributable amounts remaining in the related
Payment Account.
(e) If not all of the Certificateholders shall surrender their
Certificates for cancellation within six months after the time specified in the
above-mentioned written notice, the Grantor Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final payment with respect thereto. If within six
months after the second notice, not all the Certificates shall have been
surrendered for cancellation, the Grantor Trustee may take appropriate steps, or
appoint any agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain subject to
this Agreement.
ARTICLE IX
Miscellaneous Provisions
Section 9.01 INTENT OF PARTIES. The parties intend that each Trust Fund
shall be treated as a grantor trust for federal income tax purposes and that the
provisions of this Agreement should be construed in furtherance of this intent.
-23-
Section 9.02 ACTION UNDER UNDERLYING DOCUMENTS. In the event that there
are any matters arising under the Underlying Operative Documents related to an
Underlying Class M Bond which require the vote or direction of holders of the
related Underlying Class M Bonds thereunder, the Grantor Trustee, as holder of
each Underlying Class M Bond will vote such Underlying Class M Bond in
accordance with the written instructions received from holders of the related
Certificates evidencing at least 100% of the Fractional Undivided Interest. In
the absence of any such instructions, the Grantor Trustee will not vote such
Underlying Class M Bond.
The Grantor Trustee will forward to each Certificateholder copies of any
communications received regarding matters arising that require action by holders
of the related Underlying Class M Bonds.
Section 9.03 AMENDMENT.
(a) This Agreement may be amended from time to time by the Depositor and
the Grantor Trustee, without notice to or the consent of any of the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions herein or therein that may be defective or inconsistent with any
other provisions herein or therein, to comply with any changes in the Code or to
make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; PROVIDED, HOWEVER, that such action shall not, as evidenced by an
Opinion of Independent Counsel, adversely affect in any material respect the
interests of any Certificateholder.
(b) This Agreement may also be amended from time to time by the Depositor
and the Grantor Trustee with the consent of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of each
Trust Fund for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Certificateholders; PROVIDED, HOWEVER, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received on Underlying Class M Bonds which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all Certificates then outstanding, or (iii) will not result in the
imposition of a tax on any Trust Fund or cause any Trust Fund to fail to be
classified as a grantor trust under subpart E, part I of subchapter J of chapter
1 of the Code, as evidenced by an Opinion of Independent Counsel which shall be
provided to the Grantor Trustee other than at the Grantor Trustee's expense.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to Section 9.02(b), Certificates
registered in the name of or held for the benefit of the Depositor or the
Grantor Trustee or any Affiliate thereof shall be entitled to vote their
Fractional Undivided Interests with respect to matters affecting such
Certificates.
(c) Promptly after the execution of any such amendment, the Grantor
Trustee shall furnish a copy of such amendment or written notification of the
substance of such amendment to each Certificateholder, with a copy to the Rating
Agencies.
(d) In the case of an amendment under Subsection 9.03b) above, it shall
not be necessary for the Certificateholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Grantor Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the Grantor
Trustee shall
-24-
be entitled to receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement. The
Grantor Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Grantor Trustee's rights, duties or immunities under
this Agreement.
Section 9.04 RECORDATION OF AGREEMENT. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the related Trust upon the
request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
Section 9.05 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
(a) The death or incapacity of any Certificateholder shall not terminate
this Agreement or any Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of any Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control the operation
and management of any Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to establish the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholders be under
any liability to any third Person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon, under or with respect to this Agreement against the Depositor or any
successor to any such parties unless (i) such Certificateholder previously shall
have given to the Grantor Trustee a written notice of a continuing default, as
herein provided, (ii) the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than 51% of each Trust Fund shall have
made written request upon the Grantor Trustee to institute such action, suit or
proceeding in its own name as Grantor Trustee hereunder and shall have offered
to the Grantor Trustee such indemnity satisfactory to the Grantor Trustee
against the costs and expenses and liabilities to be incurred therein or
thereby, and (iii) the Grantor Trustee, for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding.
(d) No one or more Certificateholders shall have any right by virtue of
any provision of this Agreement to affect the rights of any other
Certificateholders or to obtain or seek to obtain priority or preference over
any other such Certificateholder, or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 9.04, each and every Certificateholder and the
Grantor Trustee shall be entitled to such relief as can be given either at law
or in equity.
Section 9.06 ACTS OF CERTIFICATEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and
-25-
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Grantor
Trustee and, where it is expressly required, to the Depositor. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and conclusive in favor of the
Grantor Trustee and the Depositor, if made in the manner provided in this
Section 9.05.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Grantor Trustee deems
sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 4.02 made on a Certificate presented in accordance with
Section 4.04) shall be proved by the Certificate Register, and neither the
Grantor Trustee, the Depositor nor any successor to any such parties shall be
affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the holder of any Certificate shall bind every future holder
of the same Certificate and the holder of every Certificate issued upon the
registration of transfer or exchange thereof, if applicable, or in lieu thereof
with respect to anything done, omitted or suffered to be done by the Grantor
Trustee, the Depositor or any successor to any such party in reliance thereon,
whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Fractional Undivided Interests have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by the Grantor Trustee, the Depositor or any Affiliate
thereof shall be disregarded, except as otherwise provided in Section 9.03(b)
and except that, in determining whether the Grantor Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Certificates which the Grantor Trustee knows to be so
owned shall be so disregarded. Certificates which have been pledged in good
faith to the Grantor Trustee, the Depositor or any Affiliate thereof may be
regarded as outstanding if the pledgor establishes to the satisfaction of the
Grantor Trustee the pledgor's right to act with respect to such Certificates and
that the pledgor is not an Affiliate of the Grantor Trustee or the Depositor, as
the case may be.
Section 9.07 GOVERNING LAW. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.08 NOTICES. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, IMH Assets Corp., 0000 Xxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000;
Attention:
-26-
Xxxxxxx Xxxxxxx, or to such other address as may hereafter be furnished to the
other parties hereto in writing; (ii) in the case of the Grantor Trustee, at its
Corporate Trust Office, or such other address as may hereafter be furnished to
the other parties hereto in writing; or (iii) in the case of the Rating
Agencies, Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and Standard & Poor's, a division of the XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Residential Mortgage Surveillance. Any notice delivered to the
Depositor or the Grantor Trustee under this Agreement shall be effective only
upon receipt. Any notice required or permitted to be mailed to a
Certificateholder, unless otherwise provided herein, shall be given by
first-class mail, postage prepaid, at the address of such Certificateholder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given when mailed, whether or not the Certificateholder receives such notice.
Section 9.09 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severed from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 9.10 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 9.11 ARTICLE AND SECTION HEADINGS. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 9.12 COUNTERPARTS. This Agreement may be executed in two or more
counterparts each of which when so executed and delivered shall be an original
but all of which together shall constitute one and the same instrument.
Section 9.13 NOTICE TO RATING AGENCIES. The article and section headings
herein are for convenience of reference only, and shall not limited or otherwise
affect the meaning hereof. The Grantor Trustee shall promptly provide notice to
each Rating Agency with respect to each of the following of which it has actual
knowledge:
(1) Any material change or amendment to this Agreement;
(2) The resignation or termination of the Grantor Trustee under this
Agreement;
(3) The final payment to Certificateholders; and
(4) Any change in the location of the related Payment Account.
-27-
IN WITNESS WHEREOF, the Depositor and the Grantor Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
IMH ASSETS CORP., as Depositor
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
DEUTSCHE BANK NATIONAL TRUST
COMPANY, solely in its capacity as Grantor
Trustee and not individually
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: Associate
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Associate
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 27th day of July, 2004, before me, a notary public in and for said
State, personally appeared Xxxxxxx X. Xxxxxxx known to me to be the Chief
Financial Officer of IMH Assets Corp., the corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
------------------------------
Notary Public
[Notarial Seal]
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 27th day of July, 2004, before me, a notary public in and for said
State, personally appeared Xxxx Xxxxx, known to me to be an Associate of
Deutsche Bank National Trust Company, the corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxxxx Xxxxxx
----------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 27th day of July, 2004, before me, a notary public in and for said
State, personally appeared Xxxx Xxxxxxx, known to me to be an Associate of
Deutsche Bank National Trust Company, the corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxxxx Xxxxxx
----------------------------------
Notary Public
EXHIBIT A
FORM OF CLASS M-[_] CERTIFICATE
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HERETO AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT
OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
UNLESS THE PROPOSED TRANSFEREE IS DEEMED TO MAKE THE REPRESENTATION IN SECTION
4.05 OF THE AGREEMENT OR UNLESS THE PROPOSED TRANSFEREE PROVIDES THE DEPOSITOR
AND THE GRANTOR TRUSTEE WITH AN OPINION OF COUNSEL SATISFACTORY TO THOSE
ENTITIES, WHICH OPINION WILL NOT BE AT THE EXPENSE OF THOSE ENTITIES, THAT THE
PURCHASE OF THE CLASS M-[_] CERTIFICATES BY OR ON BEHALF OF THE PLAN INVESTOR IS
PERMITTED UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN THE ASSETS OF
THE TRUST BEING DEEMED TO BE "PLAN ASSETS" SUBJECT TO THE PROHIBITED
TRANSACTIONS PROVISIONS OF ERISA OR CODE SECTION 4975 AND WILL NOT SUBJECT THE
DEPOSITOR OR THE GRANTOR TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN IN THE GRANTOR TRUST AGREEMENT.
A-1
Certificate No. __ Adjustable Certificate Interest Rate
Class M-[_] Mezzanine
Date of Grantor Trust Aggregate Initial Current Principal
Agreement: July 29, 2004 Amount of this Certificate as of the
Cut-off Date: $____________
Cut-off Date: July 1, 2004
First Payment Date: Initial Current Principal Amount of this
August 25, 2004 Certificate as of the Cut-off Date:
$____________
Assumed Final Payment Date: CUSIP: ___________
November 25, 2034
IMPAC CMB GRANTOR TRUST 2004-7-[_]
GRANTOR TRUST CERTIFICATE
SERIES 2004-7
evidencing a fractional undivided interest in the payments allocable
to the Class M-[_] Certificates with respect to Trust Fund [_]
consisting primarily of the Underlying Class M-[_]-[_] Bonds and the
Underlying Class M-[_]-[_] Bonds sold by IMH ASSETS CORP.
This Certificate is payable solely from the assets of Trust Fund [_], and
does not represent an obligation of or interest in IMH Assets Corp., the Master
Servicer or the Grantor Trustee referred to below or any of their affiliates or
any other person. Neither this Certificate nor the Underlying Class M-[_]-[_]
Bonds or Class M-[_]-[_] Bonds are guaranteed or insured by any governmental
entity or by IMH Assets Corp., the Grantor Trustee or any of its affiliates or
any other person. None of IMH Assets Corp. or any of their affiliates will have
any obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust ("Trust Fund [_]")
consisting primarily of two bonds (collectively, the "Underlying Class M Bonds")
sold by IMH Assets Corp. Trust Fund [_] was created pursuant to the Grantor
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement"),
between IMH Assets Corp., as seller (the "Depositor"), and Deutsche Bank
National Trust Company, as grantor trustee (the "Grantor Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein shall have the meaning
ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Payment Date (as hereinafter defined) occurs on the Current
Principal Amount hereof at a per annum rate equal to the Certificate Interest
Rate set forth above. The Grantor Trustee will distribute on the 25th day of
each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Payment Date"), commencing on the First Payment
Date specified above, to the Person in whose name this Certificate is registered
at the close of business on the last Business
A-2
Day (or if such last day is not a Business Day, the Business Day immediately
preceding such last day) of the calendar month preceding the month of such
Payment Date, an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest and
principal, if any) required to be distributed to the Holders of Certificates of
the same Class as this Certificate. The Assumed Final Payment Date is the first
anniversary of the Payment Date immediately following the latest scheduled
maturity date of any Mortgage Loan and is not likely to be the date on which the
Current Principal Amount of this Class of Certificates will be reduced to zero.
Payments on this Certificate will be made by the Grantor Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Grantor Trustee in writing as specified in the Agreement, by wire
transfer. Notwithstanding the above, the final payment on this Certificate will
be made after due notice by the Grantor Trustee of the pendency of such payment
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Grantor Trustee for that purpose and designated in such
notice. The Initial Current Principal Amount of this Certificate is set forth
above. The Current Principal Amount hereof will be reduced to the extent of
payments allocable to principal hereon and any Realized Losses allocable hereto.
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"), issued in one
Class. The Certificates, in the aggregate, evidence the entire beneficial
ownership interest in Trust Fund [_] formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to Trust Fund [_] for payment hereunder and that the Grantor
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Grantor Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement from time
to time by the Depositor and the Grantor Trustee with the consent of the Holders
of Certificates evidencing Fractional Undivided Interests aggregating not less
than 66-2/3% (or in certain cases, Holders of Certificates of affected Classes
evidencing such percentage of the Fractional Undivided Interests thereof). Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Grantor
Trustee upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Grantor Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Grantor Trustee duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates in authorized denominations representing a like aggregate
Fractional Undivided Interest will be issued to the designated transferee. The
Certificates are issuable only as registered Certificates without coupons in the
Classes and
A-3
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, this Certificate is
exchangeable for one or more new Certificates evidencing the same Class and in
the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Grantor Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Grantor Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of Depositor, the Grantor Trustee or any such
agent shall be affected by notice to the contrary. The obligations created by
the Agreement and Trust Fund [_] created thereby (other than the obligations to
make payments to Certificateholders with respect to the termination of the
Agreement) shall terminate upon the last payment made with respect to the
Underlying Class M-[_] Bonds and Class M-[_]-[_] Bonds. In no event, however,
will Trust Fund [_] created by the Agreement continue beyond the expiration of
21 years after the death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an authorized signatory
of the Grantor Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
A-4
IN WITNESS WHEREOF, the Grantor Trustee has caused this Certificate to be
duly executed.
Dated: July 29, 2004 DEUTSCHE BANK NATIONAL TRUST
COMPANY
Not in its individual capacity but solely as
Grantor Trustee
By:
---------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-[_] Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
Authorized signatory of Deutsche Bank
National Trust Company, not in its
individual capacity but solely as Grantor
Trustee
By:
---------------------------------------
Authorized Signatory
A-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the
Certificate Register of Trust Fund [_].
I (We) further direct the Certificate Registrar to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: __________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: ____________________________________________
Signature by or on behalf of assignor
____________________________________________
Signature Guaranteed
PAYMENT INSTRUCTIONS
The assignee should include the following for purposes of payment:
Payments shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________________________ for the
account of _______________________________ account number __________, or, if
mailed by check, to _________________________________________. Applicable
statements should be mailed to
_________________________________________________________. This information is
provided by _______________________________________, the assignee named above,
or ____________________________, as its agent.
A-6
EXHIBIT B
Copies of Underlying Class M Bonds
B-1
EXHIBIT C
Underlying Operative Documents
C-1
