Exhibit 4.2
SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to this Subsequent Transfer Instrument, dated June 25, 2004 (the
"Instrument"), between IMH Assets Corp. as seller (the "Company"), and Deutsche
Bank National Trust Company as indenture trustee of the IMH Assets Corp.,
Collateralized Asset-Backed Bonds, Series 2004-5, (the "Indenture Trustee"), on
behalf of Impac CMB Trust Series 2004-5 (the "Issuer"), as purchaser, and
pursuant to the Indenture, dated as of May 28, 2004 (the "Indenture"), between
the Issuer and the Indenture Trustee, as indenture trustee, the Company and the
Indenture Trustee agree to the sale by the Company and the purchase by the
Indenture Trustee in trust, on behalf of the Trust, of the Group 1 Subsequent
Mortgage Loans on the attached Schedule 1 of Mortgage Loans (the "Group 1
Subsequent Mortgage Loans").
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Indenture.
Section 1. Conveyance of Group 1 Subsequent Mortgage Loans; Acceptance of
Group I Subsequent Mortgage Loans by the Indenture Trustee.
(a) The Company does hereby sell, transfer, assign, set over and convey to
the Indenture Trustee in trust, on behalf of the Trust, without recourse, all of
its right, title and interest in and to the Group 1 Subsequent Mortgage Loans,
including all amounts due on the Group 1 Subsequent Mortgage Loans after the
related Subsequent Cut-off Date, and all items with respect to the Group 1
Subsequent Mortgage Loans to be delivered pursuant to Section 2.05 of the
Indenture; provided, however that the Company reserves and retains all right,
title and interest in and to amounts due on the Group 1 Subsequent Mortgage
Loans on or prior to the related Subsequent Cut-off Date. The Company,
contemporaneously with the delivery of this Agreement, has delivered or caused
to be delivered to the Indenture Trustee each item set forth in Section 2.05 of
the Indenture. The transfer to the Indenture Trustee by the Company of the Group
1 Subsequent Mortgage Loans identified on the Mortgage Loan Schedule shall be
absolute and is intended by the Company, the Master Servicer, the Indenture
Trustee, the Bondholders and the Bond Insurer to constitute and to be treated as
a sale by the Company to the Trust Fund.
(b) The Company, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey to the Indenture Trustee
without recourse for the benefit of the Bondholders and the Bond Insurer all the
right, title and interest of the Company, in, to and under the Subsequent
Mortgage Loan Purchase Agreement, dated June 25, 2004, between the Company, as
purchaser, and Impac Mortgage Holdings, Inc., as seller (the "Purchase
Agreement").
(c) The Indenture Trustee acknowledges receipt of, subject to the
exceptions it notes pursuant to the procedures described in Section 2.03 of the
Indenture, the documents (or certified copies thereof) referred to in Section
2.1(b) of the Subsequent Mortgage Loan Purchase Agreement, and declares that it
holds and will continue to hold those documents and any amendments, replacements
or supplements thereto and all other assets of the Trust Estate as Indenture
Trustee in trust for the use and benefit of all present and future Holders of
the Bonds.
(d) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Representations and Warranties; Conditions Precedent.
(a) The Company hereby confirms that each of the conditions precedent and
the representations and warranties set forth in Section 2.05 of the Indenture
are satisfied as of the date hereof.
(b) All terms and conditions of the Indenture are hereby ratified and
confirmed; provided, however, that in the event of any conflict, the provisions
of this Instrument shall control over the conflicting provisions of the
Indenture.
Section 3. Recordation of Instrument.
To the extent permitted by applicable law, this Instrument, or a
memorandum thereof if permitted under applicable law, is subject to recordation
in all appropriate public offices for real property records in all of the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Master
Servicer at the Bondholders' expense on direction of the related Bondholders,
but only when accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the Bondholders
or is necessary for the administration or servicing of the Group 1 Subsequent
Mortgage Loans.
Section 4. Governing Law.
This Instrument shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, without giving
effect to principles of conflicts of law.
Section 5. Counterparts.
This Instrument may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same instrument.
Section 6. Successors and Assigns.
This Instrument shall inure to the benefit of and be binding upon the
Company and the Indenture Trustee and their respective successors and assigns.
IMH ASSETS CORP.,
as Seller
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity
but solely as Indenture Trustee for the Trust.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Associate
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
