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EXHIBIT 4.2
OWNER TRUST AGREEMENT
between
IMC SECURITIES, INC.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of October 1, 1997
IMC HOME EQUITY LOAN OWNER TRUST 1997-6
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CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Capitalized Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitional Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
ORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.3 Purpose and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.4 Appointment of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.5 Initial Capital Contribution of the Owner Trust Estate . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.6 Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.7 Liability of the Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.8. Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.9 Situs of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.10 Representations and Warranties of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.11 Covenant of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.12 Federal Income Tax Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III
THE CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.1 Initial Certificate Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.2 Form of the Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.3 Execution, Authentication and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.4 Registration; Registration of Transfer and Exchange of Certificates . . . . . . . . . . . . . . . . 9
SECTION 3.5 Mutilated; Destroyed; Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.6 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.7 Access to List of Holders' Names and Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.8 Maintenance of Office For Surrenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.9 Appointment of Trust Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.10 Ownership by Depositor of the Depositor's Certificate . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.11 Restriction on Transfers of Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV
ACTIONS BY OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.1 Prior Notice to Owners with Respect to Certain Matters . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.2 Action by Holders with Respect to Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.3 Action by Holders with Respect to Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.4 Restrictions on Holders' Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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SECTION 4.5 Majority Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE V
APPLICATION OF OWNER TRUST ESTATE; CERTAIN DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.1 Establishment of Certificate Distribution Account . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.2 Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.3 Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.4 Segregation of Moneys; No Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.5 Accounting and Reports to the Certificateholders, the
Internal Revenue Service and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.6 Signature on Returns; Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VI
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.1 General Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.2. General Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.3 Action upon Instruction by Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.4 No Duties Except as Specified in this Agreement, the Documents or in Instructions . . . . . . . . . 20
SECTION 6.5 No Action Except Under Specified Documents or Instructions . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.6 Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VII
CONCERNING THE OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.1 Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.2 Furnishing of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 7.3 Representations and Warranties of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 7.4 Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.5 Owner Trustee May Own Certificates and Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.6 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.1 Owner Trustee's Fee and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.3 Payments to the Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IX
TERMINATION OF TRUST AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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SECTION 9.1 Termination of Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9.2 Reserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 10.1 Eligibility Requirements for Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10.2 Resignation or Removal of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10.3 Successor Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.4 Merger or Consolidation of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE XI
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 11.1 Amendments Without Consent of Certificateholders or Owners of the Notes . . . . . . . . . . . . . . 30
SECTION 11.2 Amendments With Consent of Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 11.3 Form of Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 11.4 No Legal Title to Owner Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.5 Limitations on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 11.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11.10 No Petition Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11.11 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 11.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 11.14 Reserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 11.15 Third-Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 11.16 Suspension and Termination of Note Insurer's Rights . . . . . . . . . . . . . . . . . . . . . . . . 33
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OWNER TRUST AGREEMENT, dated as of October 1, 1997, between IMC
SECURITIES, INC., a Delaware corporation (the "Depositor") and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity but
solely as Owner Trustee (the "Owner Trustee").
The Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Capitalized Terms. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Agreement" shall mean this Owner Trust Agreement, as the same
may be amended and supplemented from time to time.
"Bankruptcy Action" shall have the meaning assigned to such
term in Section 4.1 hereof.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of
I the Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be
amended from time to time.
"Certificate" shall mean a certificate evidencing the
beneficial interest of a Certificateholder in the Trust, substantially in the
form attached hereto as Exhibit B-1.
"Certificate Distribution Account" shall have the meaning
assigned to such term in Section 5.1.
"Certificate of Trust" shall mean the Certificate of Trust in
the form of Exhibit A to be filed for the Trust pursuant to Section 3810(a) of
the Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.4.
"Certificateholder" or "Holder" shall mean a Person in whose
name a Certificate is registered.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000; or at
such other address in the State of
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Delaware as the Owner Trustee may designate by notice to the Owners and the
Depositor, or the principal corporate trust office of any successor Owner
Trustee (the address (which shall be in the State of Delaware) of which the
successor owner trustee will notify the Owners, the Holders and the Depositor).
"Depositor" shall mean IMC Securities, Inc., a Delaware
Corporation.
"Depositor's Certificate" shall mean the Certificate in
substantially the form attached hereto as Exhibit B-2 representing a 1%
Percentage Interest of the Certificates that the Depositor is receiving
pursuant to Section 3.10.
"Expenses" shall have the meaning assigned to such term in
Section 8.2.
"Indenture" shall mean the Indenture, dated as of October 1,
1997, between the Issuer and the Indenture Trustee.
"Indenture Trustee" means The Chase Manhattan Bank, as
Indenture Trustee under the Indenture.
"Insurance Agreement" shall mean the Insurance and Indemnity
Agreement, dated as of October 1, 1997, among the Depositor, the Seller, the
Issuer and the Note Insurer.
"Issuer" shall mean IMC Home Equity Loan Owner Trust 1997-6,
the Delaware business trust created pursuant to this Agreement.
"Non-permitted Foreign Holder" shall have the meaning set
forth in Section 3.11.
"Non-U.S. Person" shall mean an individual, corporation,
partnership or other person other than a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, or an
estate or trust that is subject to U.S. federal income tax regardless of the
source of its income.
"Note Insurer" shall mean Financial Security Assurance Inc.
and its successors and assigns.
"Operative Documents" shall mean this Agreement, the Custodial
Agreement, the Indenture, the Insurance Agreement, the Loan Sale Agreement, any
Subsequent Transfer Agreement, the Sale and Servicing Agreement and the other
documents and certificates delivered in connection therewith.
"Owner" shall mean each holder of a Note.
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"Owner Trust Estate" shall mean the Trust Estate (as defined
in the Indenture), including the contribution of $1 referred to in Section 2.5
hereof.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as
owner trustee under this Agreement, and any successor owner trustee hereunder.
"Percentage Interest" shall mean with respect to each
Certificate, the percentage portion of all of the Certificates evidenced
thereby as stated on the face of such Certificate.
"Prospective Holder" shall have the meaning set forth in
Section 3.11(a).
"Rating Agency Condition" means, with respect to any action to
which a Rating Agency Condition applies, that each Rating Agency shall have
been given 10 days (or such shorter period as is acceptable to each Rating
Agency) prior notice thereof and that each of the Rating Agencies shall have
notified the Seller, the Servicer, the Note Insurer, the Owner Trustee and the
Issuer in writing that such action will not result in a reduction or withdrawal
of the then current rating of the Notes.
"Record Date" shall mean as to each Payment Date the last
Business Day of the month immediately preceding the month in which such Payment
Date occurs.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement dated as of the date hereof, among the Issuer, the
Depositor, the Seller, the Servicer and the Indenture Trustee.
"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References
herein to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Paying Agent" shall mean the Indenture Trustee or any
successor in interest thereto or any other paying agent or co-paying agent
appointed pursuant to Section 3.9 and authorized by the Issuer to make payments
to and distributions from the Certificate Distribution Account, including
payment of principal of or interest on the Certificates on behalf of the
Issuer.
SECTION 1.2 Other Definitional Provisions.
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(a) Capitalized terms used herein and not otherwise
defined herein have the meanings assigned to them in the Sale and Servicing
Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent
that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Agreement or in any such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement; Section and
Exhibit references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be
known as "IMC Home Equity Loan Owner Trust 1997-6", in which name the Owner
Trustee may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and xxx and be sued on behalf of the
Trust.
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SECTION 2.2 Office. The office of the Trust shall be in
care of the Owner Trustee at the Corporate Trust Office or at such other
address in Delaware as the Owner Trustee may designate by written notice to the
Certificateholders, the Note Insurer, the Owners and the Depositor.
SECTION 2.3 Purpose and Powers. The purpose of the Trust
is to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture
and the Certificates pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes
and the Certificates, to pay the organizational, start-up and
transactional expenses of the Trust and to deposit the Original
Aggregate Pre-Funding Amount in the Pre-Funding Account and the
Original Capitalized Interest Amount in the Capitalized Interest
Account and to pay the balance to the Depositor and the Seller, as
their interests may appear pursuant to the Sale and Servicing
Agreement;
(iii) to assign, grant, transfer, pledge, mortgage
and convey the Owner Trust Estate pursuant to the terms of the
Indenture and to hold, manage and distribute to the Certificateholders
pursuant to the terms of the Sale and Servicing Agreement any portion
of the Owner Trust Estate released from the lien of, and remitted to
the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations
under the Operative Documents to which it is to be a party;
(v) to engage in those activities, including
entering into agreements, that are necessary, suitable or convenient
to accomplish the foregoing or are incidental thereto or connected
therewith; and
(vi) subject to compliance with the Operative
Documents, to engage in such other activities as may be required in
connection with conservation of the assets of the Trust and the making
of distributions to the Certificateholders and the Owners of the
Notes.
The Trust is hereby authorized to engage in the foregoing activities
and shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the Operative Documents.
SECTION 2.4 Appointment of Owner Trustee. The Depositor
hereby appoints the Owner Trustee as trustee of the Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein. The
Owner Trustee hereby accepts its appointment subject to the terms and
conditions hereof.
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SECTION 2.5 Initial Capital Contribution of the Owner
Trust Estate. The Depositor hereby sells, assigns, transfers, conveys and sets
over to the Owner Trustee, as of the date hereof, the sum of $1. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution which shall constitute the initial Owner
Trust Estate and shall be deposited in the Certificate Distribution Account.
The Depositor or the Seller shall pay the organizational expenses of the Trust
as they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee
hereby declares that it shall hold the Owner Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Operative
Documents. It is the intention of the parties hereto that the Trust shall
constitute a business trust under the Business Trust Statute and that this
Agreement shall constitute the governing instrument of such business trust.
Effective as of the date hereof, the Owner Trustee shall have the rights,
powers and duties set forth herein and in the Business Trust Statute with
respect to accomplishing the purposes of the Trust. The Owner Trustee shall
file the Certificate of Trust pursuant to the Business Trust Statute with the
Secretary of State.
SECTION 2.7 Liability of the Holders.
(a) Any third party creditors of the Trust (other than in connection with
the obligations described in the preceding sentence for which the Depositor
shall not be liable) shall be deemed third party beneficiaries of this Section
2.7(a). The obligations of the Depositor under this Section 2.7(a) shall be
evidenced by the Depositor's Certificate issued in the name of the Depositor.
The Certificates shall be fully paid and non-assessable.
(b) No Certificateholder shall have any personal
liability for any liability or obligation of the Trust.
SECTION 2.8. Title to Trust Property.
(a) Subject to the Indenture, legal title to all of the
Owner Trust Estate shall be vested at all times in the Trust as a separate
legal entity except where applicable law in any jurisdiction requires title to
any part of the Owner Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
(b) The Certificateholders shall not have legal title to
any part of the Owner Trust Estate. No transfer by operation of law or
otherwise of any interest of the Certificateholders shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of any part of the Owner Trust Estate.
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SECTION 2.9 Situs of Trust. The Trust shall be located
and administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of Delaware
or the State of New York. The Trust shall not have any employees; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware. Payments shall be
received by the Trust only in Delaware or New York, and payments will be made
by the Trust only from Delaware or New York. The only office of the Trust
shall be the Corporate Trust Office in Delaware.
SECTION 2.10 Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the Owner Trustee
and the Note Insurer that:
(a) The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such
business is presently conducted.
(b) The Depositor is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such
qualifications.
(c) The Depositor has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Depositor
has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trust, and the Depositor
has duly authorized such sale and assignment to the Trust by all
necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(d) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms of this Agreement do
not conflict with, result in any breach of any of the terms and
provisions of or constitute (with or without notice or lapse of time)
a default under, the certificate of incorporation or by-laws of the
Depositor, or any indenture, agreement or other instrument to which
the Depositor is a party or by which it is bound; nor result in the
creation or imposition of any lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Operative Documents); nor violate any law
or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or any of its
properties.
(e) There are no proceedings or investigations pending or
notice of which has been received in writing before any court,
regulatory body, administrative agency or other
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governmental instrumentality having jurisdiction over the Depositor or
its properties: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or
ruling that might materially and adversely affect the performance by
the Depositor of its obligations under, or the validity or
enforceability of, this Agreement.
(f) The representations and warranties of the Depositor
in Section 2.01 of the Sale and Servicing Agreement are true and
correct.
SECTION 2.11 Covenant of the Depositor. The Depositor
covenants with the Owner Trustee and the Note Insurer that during the
continuance of this Agreement it will comply in all respects with the
provisions of its Certificate of Incorporation in effect from time to time.
SECTION 2.12 Federal Income Tax Allocations. Net income
of the Trust for any month, as determined for Federal income tax purposes (and
each item of income, gain, loss and deduction entering into the computation
thereof), shall be allocated to the Certificateholders, pro rata.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the
formation of the Trust by the contribution by the Depositor pursuant to Section
2.5 and until the issuance of the Certificates, the Depositor shall be the sole
owner of the Trust.
SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be issued without a principal
amount. The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized signatory of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust shall be valid, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of authentication and delivery of such Certificates.
(b) The Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders) all as determined by the authorized
signatory of the Owner Trustee or the Owner Trustee's authenticating agent
executing such Certificates, as evidenced by their execution of such
Certificates.
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(c) A transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder, upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.4.
SECTION 3.3 Execution, Authentication and Delivery.
Concurrently with the initial sale of the Initial Home Equity Loans by the
Depositor to the Trust pursuant to the Sale and Servicing Agreement, the Owner
Trustee shall execute, or cause its authenticating agent to execute the
Certificates representing 100% of the Percentage Interests of the Trust to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor, signed by an Authorized Officer of the
Depositor, without further corporate action by the Depositor. No Certificate
shall entitle its Holder to any benefit under this Agreement, or shall be valid
for any purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit B-1, executed by
the Owner Trustee or the Owner Trustee's authenticating agent, by manual or
facsimile signature. Such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 3.4 Registration; Registration of Transfer and
Exchange of Certificates.
The Certificate Registrar shall cause to be kept at its office or
agency in New York, New York, or at its designated agent, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
it shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a successor or,
if it elects not to make such an appointment, assume the duties of the
Certificate Registrar. The Owner Trustee shall be the initial Certificate
Registrar.
Subject to Section 3.11, upon surrender for registration of transfer
of any Certificate at the office or agency of the Owner Trustee maintained
pursuant to Section 3.8, the Owner Trustee shall execute, and the Owner Trustee
or its authenticating agent shall authenticate and deliver in the name of the
designated transferee or transferees, a new Certificate or Certificates of the
same Percentage Interest and dated the date of authentication by the Owner
Trustee or such authenticating agent.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of a like aggregate Percentage Interest, upon surrender
of the Certificates to be exchanged at such office. Whenever any Certificates
are so surrendered for exchange, the Owner Trustee or its authenticating agent
shall execute, authenticate and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum
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sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be marked "canceled" by the Owner Trustee.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of Certificates for a period of 15 days preceding the
due date for any payment with respect to the Certificates.
SECTION 3.5 Mutilated; Destroyed; Lost or Stolen
Certificates.
(a) If (i) any mutilated Certificate is surrendered to
the Certificate Registrar, or the Certificate Registrar receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Certificate Registrar, the Owner Trustee and the
Trust such security or indemnity as may be required by them to hold each of
them harmless, then, in the absence of notice to the Certificate Registrar or
the Owner Trustee that such Certificate has been acquired by a bona fide
purchaser, the Owner Trustee shall execute on behalf of the Trust and the Owner
Trustee or the Owner Trustee's authenticating agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a replacement Certificate of a like Percentage Interest;
provided, however, that if any such destroyed, lost or stolen Certificate, but
not a mutilated Certificate, shall have become or within seven days shall be
due and payable, then instead of issuing a replacement Certificate the Owner
Trustee may pay such destroyed, lost or stolen Certificate when so due or
payable.
(b) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee or the Certificate
Registrar may require the payment by the Holder of such Certificate of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Owner Trustee and the Certificate Registrar) connected
therewith.
(c) Any duplicate Certificate issued pursuant to this
Section 3.5 in replacement of any mutilated, destroyed, lost or stolen
Certificate shall constitute an original additional contractual obligation of
the Trust, whether or not the mutilated, destroyed, lost or stolen Certificate
shall be found at any time or be enforced by anyone, and shall be entitled to
all the benefits of this Agreement equally and proportionately with any and all
other Certificates duly issued hereunder.
(d) The provisions of this Section 3.5 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
SECTION 3.6 Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Paying Agent may
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treat the Person in whose name any Certificate shall be registered in the
Certificate Registrar as the owner of such Certificate for the purpose of
receiving distributions pursuant to Article V and for all other purposes
whatsoever, and neither the Owner Trustee, nor the Certificate Registrar nor
the Trust Paying Agent shall be affected by any notice to the contrary.
SECTION 3.7 Access to List of Holders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Depositor, within 15 days after receipt by the Owner Trustee
of a request therefor from the Servicer or the Depositor in writing, a list, in
such form as the Servicer or the Depositor may reasonably require, of the names
and addresses of the Certificateholders as of the most recent Record Date. If
three or more Certificateholders or one or more Holders of Certificates
together evidencing a Percentage Interest totaling not less than 25% apply in
writing to the Owner Trustee, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their
rights under this Agreement or under the Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed not to hold any of the Servicer, the Depositor, the Certificate
Registrar or the Owner Trustee accountable by reason of the disclosure of its
name and address, regardless of the source from which information was derived.
SECTION 3.8 Maintenance of Office For Surrenders. The
Owner Trustee shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Operative Documents may be served. The Owner Trustee
initially designates Wilmington Trust Company as its principal office for such
purposes. The Owner Trustee shall give prompt written notice to the Depositor
and to the Certificateholders and Owners of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Trust Paying Agent. The Owner
Trustee hereby appoints The Chase Manhattan Bank as the Trust Paying Agent
under this Agreement. The Trust Paying Agent shall make distributions to
Certificateholders from the Certificate Distribution Account pursuant to
Section 5.2 and shall report the amounts of such distributions to the Owner
Trustee and the Servicer. The Trust Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Trust Paying Agent if the Owner Trustee
determines in its sole discretion that the Trust Paying Agent shall have failed
to perform its obligations under this Agreement in any material respect. If
The Chase Manhattan Bank shall no longer be the Trust Paying Agent, the Owner
Trustee shall appoint a successor to act as Trust Paying Agent (which shall be
a bank or trust company acceptable to the Depositor, the Note Insurer and the
Rating Agencies). The Owner Trustee shall cause such successor Trust Paying
Agent or any additional Trust Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument in which such successor
Trust
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Paying Agent or additional Trust Paying Agent shall agree with the Owner
Trustee that as Trust Paying Agent, such successor Trust Paying Agent or
additional Trust Paying Agent shall hold all sums, if any, held by it for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Holders. The Trust Paying Agent shall return all unclaimed funds to the Owner
Trustee and upon removal of a Trust Paying Agent such Trust Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions
of Article VI shall apply to the Owner Trustee also in its role as Trust Paying
Agent, for so long as the Owner Trustee shall act as Trust Paying Agent and, to
the extent applicable, to any other Trust Paying Agent (including The Chase
Manhattan Bank) appointed hereunder. Any reference in this Agreement to the
Trust Paying Agent shall include any co-paying agent unless the context
requires otherwise.
SECTION 3.10 Ownership by Depositor of the Depositor's
Certificate. On the Closing Date, the Depositor shall receive from the Trust
and thereafter shall retain beneficial and record ownership of the Depositor's
Certificate representing at least a 1% Percentage Interest of the Certificates.
The Depositor's Certificate shall be non-transferable. Any attempted transfer
of any Depositor's Certificate shall be null and void. The Owner Trustee shall
cause the Depositor's Certificate issued to the Depositor to contain a legend
substantially to such effect.
SECTION 3.11 Restriction on Transfers of Certificate.
(a) Each prospective purchaser and any subsequent
transferee of a Certificate (each, a "Prospective Holder"), other than the
Depositor or the Seller, shall represent and warrant, in writing, to the Owner
Trustee and the Certificate Registrar and any of their respective successors
that:
(i) Such Person is (A) a "qualified institutional
buyer" as defined in Rule 144A under the Securities Act of
1933, as amended (the "Securities Act"), and is aware that the
seller of the Certificate may be relying on the exemption from
the registration requirements of the Securities Act provided
by Rule 144A and is acquiring such Certificate for its own
account or for the account of one or more qualified
institutional buyers for whom it is authorized to act, or (B)
a Person involved in the organization or operation of the
Trust or an affiliate of such Person within the meaning of
Rule 3a-7 of the Investment Company Act of 1940, as amended
(including, but not limited to, the Depositor or the Seller).
(ii) Such Person understands that the Certificate
has not been and will not be registered under the Securities
Act and may be offered, sold, pledged or otherwise transferred
only to a person whom the seller reasonably believes is (A) a
qualified institutional buyer or (B) a Person involved in the
organization or operation of the Trust or an affiliate of such
Person, in a transaction meeting the requirements of Rule 144A
under the Securities Act and in accordance with any applicable
securities laws of any state of the United States.
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(iii) Such Person understands that the Certificate
bears a legend to the following effect:
"THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS.
THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY
OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING
PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE ACT, IN A TRANSACTION THAT IS
REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE
144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR
OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A
PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED
(INCLUDING, BUT NOT LIMITED TO, IMC SECURITIES, INC.)
IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND
SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS
CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES
LAWS."
(b) Each Prospective Holder, other than the Depositor or
the Seller, shall either:
(i) represent and warrant, in writing, to the
Owner Trustee and the Certificate Registrar and any of their
respective successors that (1) the Prospective Holder is not
an "employee benefit plan" within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a "plan" within the meaning of Section
4975(e)(1) of the Code (any such plan or employee benefit
plan, a "Plan") and is not directly or indirectly purchasing
such Certificate on behalf of, as investment manager of, as
named fiduciary of, as trustee of, or with assets of a Plan,
or (2) either (I) the Prospective Holder is acquiring such
Certificate for its own account and no part of the assets used
to acquire such Certificate constitutes assets of a Plan, or
(II) the source of funds to be used to acquire such
Certificate is an "insurance company general account," within
the meaning of Prohibited Transaction Class Exemption 95-60,
60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption"), and
there is no Plan with respect to which the amount of such
general account's reserves for the contract(s) held by or on
behalf of such Plan (determined under Section 807(d) of the
Code), together with the amount of the reserves of the
contract(s) held by or on behalf of any other Plans
(determined under section 807(d) of the Code) maintained by
the same
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employer (or an affiliate thereof as defined in Section
V(a)(1) of the Exemption) or by the same employee
organization, exceed 10% of the total of all liabilities of
such general account; or
(ii) furnish to the Owner Trustee and the Certificate
Registrar and any of their respective successors an opinion of counsel
acceptable to such persons that (A) the proposed issuance or transfer
of the Certificate to such Prospective Holder will not cause any
assets of the Trust to be deemed assets of a Plan, or (B) the proposed
issuance or transfer of the Certificate will not cause the Owner
Trustee or the Certificate Registrar or any of their respective
successors to be a fiduciary of a Plan within the meaning of Section
3(21) of ERISA and will not give rise to a transaction described in
Section 406 of ERISA or Section 4975(c)(1) of the Code for which a
statutory or administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective
Holder agrees and acknowledges that no legal or beneficial interest in all or
any portion of any Certificate may be transferred directly or indirectly to (i)
an entity that holds residual securities as nominee to facilitate the clearance
and settlement of such securities through electronic book-entry changes in
accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an
individual, corporation, partnership or other person unless such transferee is
not a Non-U.S. Person (any such person being referred to herein as a
"Non-permitted Foreign Holder"), and any such purported transfer shall be void
and have no effect.
(d) The Owner Trustee shall not execute, and shall not
countersign and deliver, a Certificate in connection with any transfer thereof
unless the transferor shall have provided to the Owner Trustee a certificate,
signed by the transferee, a Book-Entry Nominee or a Non-permitted Foreign
Holder, which certificate shall contain the consent of the transferee to any
amendments of this Agreement as may be required to effectuate further the
foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or
Non-permitted Foreign Holders, and an agreement by the transferee that it will
not transfer a Certificate without providing to the Owner Trustee a certificate
in the form provided above.
(e) The Certificates shall bear an additional legend
referring to the restrictions contained in paragraph (b) above.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Owners with Respect to
Certain Matters. The Owner Trustee shall not take action with respect to the
following matters, unless (i) the Owner Trustee shall have notified the
Certificateholders and the Note Insurer in writing of the proposed action at
least 30 days before the taking of such action, and (ii) neither the
Certificateholders nor the
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Note Insurer shall have notified the Owner Trustee in writing prior to the 30th
day after such notice is given that such Certificateholders or the Note Insurer
have withheld consent or provided alternative direction (any directions by the
Certificateholders shall require the prior consent of the Note Insurer):
(a) the initiation of any claim or lawsuit by the Trust
(except claims and law suits brought in connection with the collection of the
Home Equity Loans) or the compromise of any action, claim or lawsuit brought by
or against the Trust (except claims and law suits brought in connection with
the collection of the Home Equity Loans);
(b) the election by the Trust to file an amendment to the
Certificate of Trust, (except to the extent such amendment is required under
the Business Trust Statute);
(c) the amendment or other change to this Agreement or
any Operative Documents in circumstances where the consent of any Owner of a
Note or the Note Insurer is required;
(d) the amendment or other change to this Agreement or
any Operative Documents in circumstances where the consent of any Owner of a
Note or the Note Insurer is not required and such amendment materially
adversely affects the interest of the Certificateholders;
(e) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar or Trust Paying Agent, or the
consent to the assignment by the Note Registrar, Paying Agent or Indenture
Trustee or Certificate Registrar or Trust Paying Agent of its obligations under
the Indenture or this Agreement, as applicable;
(f) the consent to the calling or waiver of any default
of any Operative Document;
(g) the consent to the assignment of the Indenture
Trustee or Servicer of their respective obligations under the Operative
Document;
(h) except as provided in Article IX hereof, dissolve,
terminate or liquidate the Trust in whole or in part;
(i) merge or consolidate the Trust with or into any other
entity, or convey or transfer all or substantially all of the Trust's assets to
any other entity;
(j) cause the Trust to incur, assume or guaranty any
indebtedness other than as set forth in this Agreement;
(k) do any act that conflicts with any other Operative
Document;
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(l) do any act which would make it impossible to carry on
the ordinary business of the Trust as described in Section 2.3 hereof;
(m) confess a judgment against the Trust;
(n) possess Trust assets, or assign the Trust's right to
property, for other than a Trust purpose;
(o) cause the Trust to lend any funds to any entity; or
(p) change the Trust's purpose and powers from those set
forth in this Agreement.
In addition the Trust shall not commingle its assets with those of any
other entity. The Trust shall maintain its financial and accounting books and
records separate from those of any other entity. Except as expressly set forth
herein, the Trust shall pay its indebtedness and any operating expenses from
its own funds, and the Trust shall not pay the indebtedness, operating expenses
or liabilities of any other entity. The Trust shall maintain appropriate
minutes or other records of all appropriate actions and shall maintain its
office separate from the offices of the Depositor, the Seller and the Servicer.
The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders with the consent of the Note Insurer, and to the
extent otherwise consistent with the Operative Documents, to (i) remove or
replace the Servicer or the Indenture Trustee, (ii) institute proceedings to
have the Trust declared or adjudicated a bankruptcy or insolvent, (iii) consent
to the institution of bankruptcy or insolvency proceedings against the Trust,
(iv) file a petition or consent to a petition seeking reorganization or relief
on behalf of the Trust under any applicable federal or state law relating to
bankruptcy, (v) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or any similar official) of the Trust or a substantial
portion of the property of the Trust, (vi) make any assignment for the benefit
of the Trust's creditors, (vii) cause the Trust to admit in writing its
inability to pay its debts generally as they become due, (viii) take any
action, or cause the Trust to take any action, in furtherance of any of the
foregoing (any of the above, a "Bankruptcy Action"). So long as the Indenture
remains in effect and no Note Insurer Default exists, no Certificateholder
shall have the power to take, and shall not take, any Bankruptcy Action with
respect to the Trust or the Depositor or direct the Owner Trustee to take any
Bankruptcy Action with respect to the Trust or the Depositor.
SECTION 4.2 Action by Holders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders and with the consent of the Note Insurer, to remove
the Servicer under the Sale and Servicing Agreement. The Owner Trustee shall
take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders and only after obtaining the
consent of the Note Insurer.
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SECTION 4.3 Action by Holders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding
in bankruptcy relating to the Trust without the consent and approval of the
Note Insurer, the unanimous prior approval of all Certificateholders and the
delivery to the Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
SECTION 4.4 Restrictions on Holders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of the
Operative Documents or would be contrary to Section 2.3, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly
provided herein any action that may be taken or consent that may be given or
withheld or written notice delivered by the Certificateholders under this
Agreement may be taken by Holders of Certificates representing more than a
majority of the Certificates.
ARTICLE V
APPLICATION OF OWNER TRUST ESTATE; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution
Account. The Owner Trustee shall cause the Servicer, for the benefit of the
Certificateholders, to establish and maintain with The Chase Manhattan Bank for
the benefit of the Owner Trustee a Trust Account which while the Trust Paying
Agent holds such Account shall be entitled "CERTIFICATE DISTRIBUTION ACCOUNT,
THE CHASE MANHATTAN BANK AS TRUST PAYING AGENT, IN TRUST FOR THE IMC ADJUSTABLE
RATE HOME EQUITY LOAN ASSET BACKED CERTIFICATES, SERIES 1997-6." Funds shall
be deposited in the Certificate Distribution Account as required by the Sale
and Servicing Agreement.
All of the right, title and interest of the Owner Trustee in all funds
on deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof shall be held for the benefit of the Certificateholders.
Except as otherwise expressly provided herein or in the Sale and Servicing
Agreement, the Certificate Distribution Account shall be under the sole
dominion and control of the Owner Trustee for the benefit of the
Certificateholders.
SECTION 5.2 Application of Trust Funds. (a) On
each Payment Date, the Owner Trustee shall direct the Trust Paying Agent to
distribute to the Certificateholders from amounts on deposit in the Certificate
Distribution Account the distributions as provided in Section 3.03(b)(v) of the
Sale and Servicing Agreement with respect to such Payment Date.
(b) Reserved.
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(c) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Holder at the
time it is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S. Holder), the
Owner Trustee may in its sole discretion withhold such amounts in accordance
with this paragraph (c). In the event that a Certificateholder wishes to apply
for a refund of any such withholding tax, the Owner Trustee shall reasonably
cooperate with such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket
expenses incurred.
SECTION 5.3 Method of Payment. Distributions required to
be made to Certificateholders on any Payment Date shall be made to each
Certificateholder of record on the immediately preceding Record Date either by
wire transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Payment Date, or, if not, by check mailed to such Certificateholder at the
address of such Certificateholder appearing in the Certificate Register.
SECTION 5.4 Segregation of Moneys; No Interest. Subject
to Sections 5.1 and 5.2, moneys received by the Trust Paying Agent hereunder
and deposited into the Certificate Distribution Account will be segregated
except to the extent required otherwise by law and shall be invested in
Eligible Investments maturing no later than one Business Day prior to the
related Payment Date at the direction of the Depositor. The Trust Paying Agent
shall not be liable for payment of any interest or losses in respect of such
moneys. Investment gains shall be for the account of and paid to the
Certificateholders.
SECTION 5.5 Accounting and Reports to the
Certificateholders, the Internal Revenue Service and Others. The Owner Trustee
shall (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis on the accrual method of accounting, and such books shall be
maintained separately from those of any other entity and reflect the separate
interest of the Trust, (b) deliver to each Certificateholder, as may be required
by the Code and applicable Treasury Regulations, such information as may be
required (including Schedule K-1) to enable such Certificateholder to prepare
its federal and state income tax returns, (c) file such tax returns relating to
the Trust (including a partnership information return, IRS Form 1065), and make
such elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Trust's characterization as a
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partnership for federal income tax purposes, (d) cause such tax returns to be
signed in the manner required by law and (e) collect or cause to be collected
any withholding tax with respect to income or distributions to
Certificateholders. The Owner Trustee shall elect under Section 1278 of the
Code to include in income currently any market discount that accrues with
respect to the Home Equity Loans. The Owner Trustee shall not make the
election provided under Section 754 of the Code.
SECTION 5.6 Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign on behalf of the Trust the tax returns of the
Trust, unless applicable law requires a Certificateholder to sign such
documents, in which case such documents shall be signed by the Depositor.
(b) The Depositor shall be designated the "tax matters
partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code and
applicable Treasury Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
SECTION 6.1 General Authority. The Owner Trustee is
authorized and directed to execute and deliver or cause to be executed and
delivered the Certificates and the Operative Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to or
contemplated by the Operative Documents to which the Trust is to be a party and
any amendment or other agreement or instrument described in Article III, in
each case, in such form as the Depositor shall approve, as evidenced
conclusively by the Owner Trustee's execution thereof, and, on behalf of the
Trust, to direct the Indenture Trustee to authenticate and deliver the Notes in
the aggregate principal amount of $700,000,000. In addition to the foregoing,
the Owner Trustee is authorized, but shall not be obligated, to take all
actions required of the Trust, pursuant to the Operative Documents.
SECTION 6.2. General Duties. It shall be the duty of the
Owner Trustee:
(a) to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the Operative
Documents to which the Trust is a party and to administer the Trust in the
interest of the Certificateholders, and in accordance with the provisions of
this Agreement; and
(b) to obtain and preserve, the Trust's qualification to
do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, and each other instrument and agreement included in the Owner Trust
Estate.
SECTION 6.3 Action upon Instruction by Owners.
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(a) Subject to Article IV, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee
shall not be required to take any action hereunder or under any Operative
Document if the Owner Trustee shall have reasonably determined, or shall have
been advised by counsel, that such action is likely to result in liability on
the part of the Owner Trustee or is contrary to the terms hereof or of any
Operative Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by the terms of
this Agreement or any Operative Document, or is unsure as to the application,
intent, interpretation or meaning of any provision of this agreement or the
Operative Documents, the Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Note Insurer and the
Certificateholders requesting instruction as to the course of action to be
adopted, and, to the extent the Owner Trustee acts in good faith in accordance
with any such instruction received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instructions within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or
may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action which is consistent, in its view,
with this Agreement or the Operative Documents, and as it shall deem to be the
best interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for any such action or inaction.
(d) In the event that the Owner Trustee is unsure as to
the application of any provision of this Agreement or any Operative Document or
any such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of such
action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Operative Documents, as it shall deem to be in the best interest of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
SECTION 6.4 No Duties Except as Specified in this
Agreement, the Documents or in Instructions. The Owner Trustee shall not have
any duty or obligation to manage, make any payment with respect to, register,
record, sell, dispose of, or otherwise deal with the Owner Trust
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Estate, or to otherwise take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which the Owner Trustee is
a party, except as expressly provided by the terms of this Agreement, any
Operative Document or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.3; and no implied duties or obligations
shall be read into this Agreement or any Operative Document against the Owner
Trustee. The Owner Trustee shall have no 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 prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Operative
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any
liens on any part of the Owner Trust Estate that result from actions by, or
claims against, the Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 6.5 No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the Operative
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Owner Trustee shall not
take any action (a) that is inconsistent with the purposes of the Trust set
forth in Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee,
would result in the Trust's becoming taxable as a corporation for Federal
income tax purposes. The Certificateholders shall not direct the Owner Trustee
to take action that would violate the provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties. Except as
otherwise provided in this Article VII, in accepting the trusts hereby created
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Operative
Document shall look only to the assets of the Trust for payment or satisfaction
thereof. The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts but only upon the
terms of this Agreement. The Owner Trustee also agrees to disburse all moneys
actually received by it constituting part of the assets of the Trust upon the
terms of the Operative Documents and this Agreement. The Owner Trustee shall
not be liable or accountable hereunder or under any Operative Document under
any circumstances, except (i) for its own gross negligent action, its own gross
negligent failure to act or its own
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willful misconduct or (ii) in the case of the inaccuracy of any representation
or warranty contained in Section 7.3 and expressly made by the Owner Trustee.
In particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Home Equity Loan, or the perfection and priority of any
security interest created by any Home Equity Loan in any Property or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the assets of the Trust or their ability to generate the
payments to be distributed to Certificateholders under this Agreement or the
Owners of the Notes under the Indenture, including, without limitation: the
existence, condition and ownership of any Property; the existence and
enforceability of any insurance thereon; the existence and contents of any Home
Equity Loan on any computer or other record thereof; the validity of the
assignment of any Home Equity Loan to the Trust or of any intervening
assignment; the completeness of any Home Equity Loan; the performance or
enforcement of any Home Equity Loan; the compliance by the Depositor or the
Servicer with any warranty or representation made under any Operative Document
or in any related document or the accuracy of any such warranty or
representation or any action of the Indenture Trustee, the Custodian or the
Servicer or any subservicer taken in the name of the Owner Trustee.
(b) the Owner Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of the Note Insurer or any Certificateholder;
(c) no provision of this Agreement or any Operative
Document shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights or powers
hereunder or under any Operative Document, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the Operative
Documents, including the Note Principal Balance and the interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of and makes no representation as to the validity or sufficiency of any
provision of this Agreement or for the due execution hereof by the Depositor or
for the form, character, genuineness, sufficiency, value or validity of any of
the Owner Trust Estate or for or in respect of the validity or sufficiency of
the Operative Documents, the Underwriting Agreement, the Notes, the
Certificates (other than the certificate of authentication on the Certificates)
or of any Home Equity Loans or any related documents, and the Owner Trustee
shall in no event assume or incur any liability, duty or obligation to any
Owner of a Note or to any Certificateholder, other than as expressly provided
for herein and in the Operative Documents;
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(f) the Owner Trustee shall not be liable for the default
or misconduct of the Indenture Trustee, the Custodian, the Depositor or the
Servicer under any of the Operative Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations of the
Trust under this Agreement or the Operative Documents that are required to be
performed by the Indenture Trustee under the Indenture, the Custodian under the
Custodial Agreement or the Servicer under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise
or in relation to this Agreement, the Underwriting Agreement or any Operative
Document, at the request, order or direction of any of the Note Insurer or any
of the Certificateholders, unless the Note Insurer or such Certificateholders
have offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any Operative Document
shall not be construed as a duty, and the Owner Trustee shall not be answerable
for other than its negligence or willful misconduct in the performance of any
such act;
(h) The Owner Trustee shall have no 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 prepare, execute or file any Securities and
Exchange Commission filing or tax return for the Trust or to record this
Agreement or any Operative Document.
SECTION 7.2 Furnishing of Documents. The Owner Trustee
shall furnish (a) to the Certificateholders, promptly upon receipt of a written
request therefor, duplicate or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Operative Documents, and (b) to the Note
Insurer, copies of any reports, notices, requests, demands, certificates,
financial statements, and any other instruments relating to the Trust, the
Certificates or the Notes in the possession of the Owner Trustee, that the Note
Insurer shall request in writing.
SECTION 7.3 Representations and Warranties of Owner
Trustee. Wilmington Trust Company hereby represents and warrants to the
Depositor, for the benefit of the Certificateholders and the Note Insurer,
that:
(a) It is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) It has full power, authority and legal right to
execute, deliver and perform its obligations under this Agreement, and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Agreement.
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(c) The execution, delivery and performance by it of this
Agreement (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of Wilmington Trust Company or any
order, writ, judgment or decree of any court, arbitrator or governmental
authority applicable to the Wilmington Trust Company or any of its assets, (ii)
shall not violate any provision of the corporate charter or by-laws of
Wilmington Trust Company, or (iii) shall not violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of any lien on any properties included in the
Trust pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation, default
or lien could reasonably be expected to have a materially adverse effect on
Wilmington Trust Company's performance or ability to perform its duties as
Owner Trustee under this Agreement or on the transactions contemplated in this
Agreement.
(d) This Agreement has been duly executed and delivered
by Wilmington Trust Company and constitutes the legal, valid and binding
agreement of Wilmington Trust Company, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar law affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
SECTION 7.4 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone
in acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, note or other document or paper believed
by it to be genuine and believed by it to be signed by the proper party or
parties and need not investigate any fact or matter in any such document. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement or the Operative Documents, the Owner Trustee: (i) may act directly
or through its agents, attorneys, custodians or nominees, and the Owner Trustee
shall not be liable for the conduct or misconduct of such agents, attorneys,
custodians or nominees if such agents, attorneys, custodians or nominees shall
have been selected by the Owner Trustee with reasonable care and (ii) may
consult with counsel, accountants and other skilled professionals to be
selected with reasonable care and employed by it. The Owner Trustee shall not
be liable for anything done, suffered or omitted in good faith by it in
accordance
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with the opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Agreement or any of the Operative Documents.
SECTION 7.5 Owner Trustee May Own Certificates and Notes.
The Owner Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates or Notes and may deal with the Depositor, the
Indenture Trustee and the Servicer in transactions in the same manner and with
the same rights as it would have if it were not the Owner Trustee.
SECTION 7.6 Licenses. The Owner Trustee shall cause the
Trust to use its best efforts to obtain and maintain the effectiveness of any
licenses required in connection with this Agreement and the Operative Documents
and the transactions contemplated hereby and thereby until such time as the
Trust shall terminate in accordance with the terms hereof.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fee and Expenses. The Owner
Trustee shall receive from the Depositor as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Depositor and the Owner Trustee, and the Owner Trustee shall be
entitled to be reimbursed by the Depositor for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, custodians, nominees, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of its
rights and its duties hereunder.
SECTION 8.2 Indemnification. The Depositor shall be
liable as primary obligor, and the Seller shall be liable as secondary obligor
pursuant to the Sale and Servicing Agreement for, and shall indemnify the Owner
Trustee and its successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever (collectively, "Expenses") which
may at any time be imposed on, incurred by, or asserted against the Owner
Trustee or any Indemnified Party in any way relating to or arising out of this
Agreement, the Operative Documents, the Owner Trust Estate, the administration
of the Trust or the action or inaction of the Owner Trustee hereunder, except
only that the Depositor shall not be liable for or required to indemnify the
Owner Trustee from and against Expenses arising or resulting from the gross
negligence, bad faith or willful misconduct of the Owner Trustee. The
indemnities contained in this Section 8.2 shall survive the resignation of the
Owner Trustee, termination of the Trust or the termination of this Agreement.
SECTION 8.3 Payments to the Owner Trustee. Any amounts
paid to the Owner Trustee pursuant to this Article VIII shall be deemed not to
be a part of the Owner Trust Estate immediately after such payment.
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the
Trust shall terminate and be of no further force or effect on the earlier of:
(i) the final distribution by the Indenture Trustee of all moneys or other
property or proceeds of the assets of the Trust in accordance with the terms of
the Indenture and (ii) 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). The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x) operate
to terminate this Agreement or the Trust, nor (y) 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 all
or any part of the Trust or the Owner Trust Estate or (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) The Certificates shall be subject to an early
redemption or termination at the option of the majority of Certificateholders,
and in certain instances the Note Insurer, in the manner and subject to the
provisions of Section 5.02 of the Sale and Servicing Agreement.
(c) Except as provided in paragraphs (a) and (b) of this
Section 9.1, none of the Depositor, the Servicer, the Note Insurer or any
Certificateholder shall be entitled to revoke or terminate the Trust.
(d) Notice of any termination of the Trust, specifying
the Payment Date upon which the Certificateholders shall surrender their
Certificates to the Owner Trustee for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to the Note
Insurer, the Rating Agencies and the Trust Paying Agent mailed within five
Business Days of receipt of notice of such termination, stating: (i) the
Payment Date upon or with respect to which final payment of the Certificates
shall be made upon presentation and surrender of the Certificates at the office
of the Owner 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 Owner Trustee therein
specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Trust Paying Agent at the
time such notice is given to Certificateholders. The Owner Trustee will give
notice to the Trust Paying Agent of each presentation and surrender of the
Certificates and the Trust Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.03 of the Sale and Servicing Agreement.
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(e) Upon the winding up of the Trust and its termination,
the Owner Trustee shall cause the Certificate of Trust to be canceled by filing
a certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3820 of the Business Trust Statute.
SECTION 9.2 Reserved.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be a corporation satisfying the provisions
of Section 3807(a) of the Business Trust Statute; authorized to exercise
corporate powers; having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by Federal or state authorities; and
having (or having a parent which has) a rating of at least "Baa3" by Moody's
and "A-1" by Standard & Poor's and being acceptable to the Note Insurer. If
such corporation shall publish reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Owner Trustee shall resign immediately
in the manner and with the effect specified in Section 10.2.
SECTION 10.2 Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Indenture
Trustee and the Note Insurer. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Owner Trustee (acceptable to the
Note Insurer) by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Owner Trustee and one copy to the successor
Owner Trustee. If no successor Owner Trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee or the Note Insurer may petition any
court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Indenture Trustee, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Note Insurer, or the Indenture Trustee
with the consent of the Note Insurer, may remove the Owner Trustee. If the
Indenture Trustee or the Note Insurer shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Note Insurer, or the
Servicer with the consent of the Note
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Insurer, shall promptly appoint a successor Owner Trustee by written instrument
in duplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed and one copy to the successor Owner Trustee and
payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3, written approval by the Note Insurer and
payment of all fees and expenses owed to the outgoing Owner Trustee. The
Depositor shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies and the Note Insurer.
SECTION 10.3 Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the Depositor, the Indenture Trustee, the Note Insurer and to its
predecessor Owner Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Owner
Trustee shall become effective and such successor Owner Trustee (if acceptable
to the Note Insurer), without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees
and expenses deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement; and the Depositor and
the predecessor Owner Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Owner Trustee all such rights, powers, duties,
and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Depositor shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Owners, the Note
Insurer and the Rating Agencies. If the Depositor fails to mail such notice
within 10 days after acceptance of appointment by the successor Owner Trustee,
the successor Owner Trustee shall cause such notice to be mailed at the expense
of the Depositor.
SECTION 10.4 Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section
10.1, and without the execution or filing of any instrument or any further act
on the part of any of the parties hereto; provided,
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however, that the Owner Trustee shall mail notice of such merger or
consolidation to the Note Insurer and each of the Rating Agencies.
SECTION 10.5 Appointment of Co-Trustee or Separate
Trustee.
(a) Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Owner Trust Estate or any Property may at
the time be located, the Owner Trustee (with the consent of the Note Insurer)
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the Owner Trustee and the Note Insurer to act
as co-trustee, jointly with the Owner Trustee, or as separate trustee or
trustees, of all or any part of the assets of the Trust, and to vest in such
Person, in such capacity, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Note Insurer and the Owner Trustee may
consider necessary or desirable. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.3.
(b) Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be conferred
upon and exercised or performed by the Owner Trustee, and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to
act separately without the Owner Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Owner Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Owner 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. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified
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in its instrument of appointment, either jointly with the Owner 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
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and
a copy thereof given to the Note Insurer.
(d) Any separate trustee or co-trustee may at any time
appoint the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this 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 Owner Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments Without Consent of
Certificateholders or Owners of the Notes. This Agreement may be amended by
the Depositor and the Owner Trustee without the consent of any of the
Certificateholders (but with the prior written consent of the Note Insurer and
prior notice to each of the Rating Agencies), to (i) cure any ambiguity, (ii)
correct or supplement any provision in this Agreement that may be defective or
inconsistent with any other provision in this Agreement, (iii) add or
supplement any credit enhancement for the benefit of the Owners of the Notes or
the Certificateholders, (iv) add to the covenants, restrictions or obligations
of the Depositor or the Owner Trustee and (v) add, change or eliminate any
other provision of this Agreement in any manner that shall not, adversely
affect in any material respect the interests of the Owners of the Notes or the
Certificateholders. An amendment described above shall be deemed not to
adversely affect in any material respect the interests of any Certificateholder
or Owner of a Note if (i) an opinion of counsel is obtained to such effect or
(ii) the party requesting the amendment satisfies the Rating Agency Condition
with respect to such amendment.
SECTION 11.2 Amendments With Consent of
Certificateholders. This Agreement may be amended from time to time by the
Depositor and the Owner Trustee with the consent of the Note Insurer and more
than a majority in Percentage Interests of the Certificates 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 (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Home Equity Loans or distributions that
shall be made for the benefit of the Certificateholders or (b) reduce the
aforesaid percentage required to consent to any such amendment, without the
consent of the Holders of all of the Certificates then outstanding.
SECTION 11.3 Form of Amendments.
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(a) Promptly after the execution of any amendment,
supplement or consent pursuant to Section 11.1 or 11.2, The Owner Trustee shall
furnish written notification of the substance of such amendment or consent to
each Certificateholder, the Indenture Trustee, the Note Insurer and each Rating
Agency.
(b) It shall not be necessary for the consent of the
Certificateholders, pursuant to Section 11.2 to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents
(and any other consents of Certificateholders provided for in this Agreement or
in any other Operative Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
(d) Prior to the execution of any amendment to this
Agreement or the Certificate of Trust, the Owner Trustee shall 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 and that all conditions
precedent to the execution and delivery of such amendment have been satisfied.
The Owner Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
SECTION 11.4 No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the assets of the
Owner Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest therein only
in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title, and interest of the Certificateholders to and
in their ownership interest in the assets of the Trust shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the assets
of the Trust.
SECTION 11.5 Limitations on Rights of Others. Except for
Section 2.7, the provisions of this Agreement are solely for the benefit of the
Note Insurer, the Owner Trustee, the Depositor, the Certificateholders and, to
the extent expressly provided herein, the Indenture Trustee and the Owners of
the Notes, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the assets of the Trust or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
SECTION 11.6 Notices.
(a) All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by overnight mail,
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certified mail or registered mail, postage prepaid, to (i) in the case of the
Servicer, IMC Mortgage Company, 0000 Xxxx Xxxxxx Xxx., Xxxxx, Xxxxxxx
00000-0000, Attention: Xxxxxx Xxxxxxxx, or such other addresses as may
hereafter be furnished to the Certificateholders in writing by the Servicer,
(ii) in the case of the Depositor, IMC Securities, Inc. 0000 Xxxx Xxxxxx Xxx.,
Xxxxx, Xxxxxxx 00000-0000, Attention: Xxxxxx Xxxxxxxx, or such other addresses
as may hereafter be furnished to the Certificateholders in writing by the
Depositor, (iii) in the case of the Owner Trustee, Wilmington Trust Company,
Xxxxxx Square North, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: IMC Home Equity Loan Owner Trust 1997-6, (iv) in the case of the
Certificateholders, as set forth in the Certificate Register, (v) in the case
of the Indenture Trustee, The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: IMC Home Equity Loan Owner Trust 1997-6, (vi)
in the case of Moody's, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Home Equity Monitoring Group, (vii) in the case of Standard & Poor's, 00
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Group, and
(viii) in the case of the Note Insurer, Financial Security Assurance Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Surveillance Department -
IMC Home Equity Loan Owner Trust 1997-6. Any such notices shall be deemed to
be effective with respect to any party hereto upon the receipt of such notice
by such party, except that notices to the Certificateholders shall be effective
upon mailing or personal delivery.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder 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, whether or not the Certificateholder receives
such notice.
SECTION 11.7 Severability. 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 severable 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 11.8 Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument.
SECTION 11.9 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Depositor, the Owner Trustee, the Note Insurer and each Certificateholder
and their respective successors and permitted assigns, all as herein provided.
Any request, notice, direction, consent, waiver or other instrument or action
by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.10 No Petition Covenant. Notwithstanding any
prior termination of this Agreement, the Trust (or the Owner Trustee on behalf
of the Trust), each Certificateholder and
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the Indenture Trustee shall not acquiesce, petition or otherwise invoke or
cause the Depositor or the Trust to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Depositor or the Trust under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Depositor or
the Trust or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Depositor or the Trust.
SECTION 11.11 No Recourse. Each Certificateholder by
accepting a Certificate acknowledges that such Certificateholder's Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Depositor, the Servicer, the Owner Trustee, the
Indenture Trustee or any affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates or the Operative Documents.
SECTION 11.12 Headings. The headings of the various
Articles and Sections herein are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
SECTION 11.13 Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 11.14 Reserved.
SECTION 11.15 Third-Party Beneficiary. The parties hereto
acknowledge that the Note Insurer is an express third party beneficiary hereof
entitled to enforce the provisions hereunder as if it were actually a party
hereto. Nothing in this section, however, shall be construed to mitigate in
any way, the fiduciary responsibilities of the Owner Trustee to the
Certificateholders.
SECTION 11.16 Suspension and Termination of Note Insurer's
Rights. During the continuation of a Note Insurer Default, rights granted or
reserved to the Note Insurer hereunder shall vest instead in the
Certificateholders; provided that the Note Insurer shall be entitled to any
distributions in reimbursement of the Note Insurer Reimbursement Amount, and
the Note Insurer shall retain those rights under Section 11.1 to consent to any
amendment of this Agreement.
At such time as either (i) the Note Principal Balance has been
reduced to zero or (ii) the Insurance Policy has been terminated and in either
case of (i) or (ii) the Note Insurer has been reimbursed for all Insured
Payments and any other amounts owed under the Insurance Policy and the
Insurance Agreement (and the Note Insurer no longer has any obligation under
the Insurance Policy, except for breach thereof by the Note Insurer), then the
rights and benefits
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granted or reserved to the Note Insurer hereunder (including the rights to
direct certain actions and receive certain notices) shall terminate and the
Certificateholders shall be entitled to the exercise of such rights and to
receive such benefits of the Note Insurer following such termination to the
extent that such rights and benefits are applicable to the Certificateholders.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY
as Owner Trustee
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Financial Services Officer
IMC SECURITIES, INC.,
as Depositor
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
Acknowledged and Accepted:
IMC MORTGAGE COMPANY
as Servicer
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
THE CHASE MANHATTAN BANK
as Indenture Trustee
By: /s/ Xxx Xxxxx Xxxx
-------------------------------------------
Name: Xxx Xxxxx Xxxx
Title: Trust Officer
40
EXHIBIT A
CERTIFICATE OF TRUST OF
IMC Home Equity Loan Trust 1997-6
THIS Certificate of Trust of IMC Home Equity Loan Owner Trust 1997-6 (the
"Trust") dated as of October 1, 1997, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. Code, Section
3801 et seq.).
1. Name. The name of the business trust formed hereby is IMC Home Equity Loan
Owner Trust 1997-6.
2. Delaware Trustee. The name and business address of the trustee of the Trust
in the State of Delaware is Xxxxxx Square North, 0000 X. Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: IMC Home Equity Loan Owner Trust 1997-6.
3. This Certificate of Trust shall be effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has
executed this Certificate of Trust as of the date first above written.
Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By:
--------------------------------------------
Name:
Title:
41
EXHIBIT B-1
TO THE TRUST AGREEMENT
(FORM OF CERTIFICATE)
THE EQUITY INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR
INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OR (INCLUDING PLEDGED) BY THE
HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN
THE MEANING OR RULE 3A-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED
(INCLUDING BUT NOT LIMITED TO, IMC MORTGAGE COMPANY AND IMC SECURITIES, INC.)
IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT
AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS EQUITY INTEREST UNDER
THE ACT OR ANY STATE SECURITIES LAWS.
NO TRANSFER OF THIS CERTIFICATE OR ANY BENEFICIAL INTEREST THEREIN SHALL BE
MADE TO ANY PERSON UNLESS THE OWNER TRUSTEE HAS RECEIVED EITHER
(A) A CERTIFICATE FROM THE TRANSFEREE TO THE EFFECT THAT SUCH
TRANSFEREE (1) IS NOT AN "EMPLOYEE BENEFIT PLAN" WITHIN THE
MEANING OF SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A "PLAN" WITHIN
THE MEANING OF SECTION 4975(e)(1) OF THE CODE (ANY SUCH PLAN
OR EMPLOYEE BENEFIT PLAN, A "PLAN") AND IS NOT DIRECTLY OR
INDIRECTLY PURCHASING SUCH CERTIFICATE ON BEHALF OF, AS
INVESTMENT MANAGER OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF A PLAN, OR (2) EITHER (I) SUCH TRANSFEREE IS
ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT AND NO PART OF
THE ASSETS USED TO ACQUIRE THE CERTIFICATE CONSTITUTES ASSETS
OF A PLAN, OR (II) THE SOURCE OF FUNDS TO BE USED TO ACQUIRE
SUCH CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT,"
WITHIN THE MEANING OF
42
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, 60 FED. REG.
35925 (JULY 12, 1995) (THE "EXEMPTION"), AND THERE IS NO PLAN
WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S
RESERVES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN
(DETERMINED UNDER SECTION 807(d) OF THE CODE), TOGETHER WITH
THE AMOUNT OF THE RESERVES OF THE CONTRACT(S) HELD BY OR ON
BEHALF OF ANY OTHER PLANS (DETERMINED UNDER SECTION 807(D) OF
THE CODE) MAINTAINED BY THE SAME EMPLOYER (OR AN AFFILIATE
THEREOF AS DEFINED IN SECTION V(a)(1) OF THE EXEMPTION) OR BY
THE SAME EMPLOYEE ORGANIZATION, EXCEED 10% OF THE TOTAL OF ALL
LIABILITIES OF SUCH GENERAL ACCOUNT; OR
(B) AN OPINION OF COUNSEL ACCEPTABLE TO SUCH PERSONS THAT (A) THE
PROPOSED ISSUANCE OR TRANSFER OF THE CERTIFICATE TO SUCH
TRANSFEREE WILL NOT CAUSE ANY ASSETS OF THE TRUST TO BE DEEMED
ASSETS OF A PLAN, OR (B) THE PROPOSED ISSUANCE OR TRANSFER OF
THE CERTIFICATE WILL NOT CAUSE THE OWNER TRUSTEE OR THE
CERTIFICATE REGISTRAR OR ANY OF THEIR RESPECTIVE SUCCESSORS TO
BE A FIDUCIARY OF A PLAN WITHIN THE MEANING OF SECTION 3(21)
OF ERISA AND WILL NOT GIVE RISE TO A TRANSACTION DESCRIBED IN
SECTION 406 OF ERISA OR SECTION 4975(c)(1) OF THE CODE FOR
WHICH A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF UNLESS,
PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER
TRUSTEE AND THE CERTIFICATE REGISTRAR A CERTIFICATE STATING THAT SUCH
TRANSFEREE (A) AGREES TO BE BOUND BY AND TO ABIDE BY THE TRANSFER RESTRICTIONS
APPLICABLE TO THIS CERTIFICATE; (B) IS NOT AN ENTITY THAT WILL HOLD THIS
CERTIFICATE AS NOMINEE TO FACILITATE THE CLEARANCE AND SETTLEMENT OF SUCH
SECURITY THROUGH THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
PERSON THAT IS A NON-U.S. PERSON. THE TERM "NON-U.S. PERSON" MEANS A PERSON
WHO IS NOT ONE OF THE FOLLOWING: A CITIZEN OR RESIDENT OF THE UNITED STATES, A
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN OR UNDER THE
LAWS OF THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, AN ESTATE THAT
IS SUBJECT TO U.S. FEDERAL INCOME TAX REGARDLESS OF THE SOURCE OF ITS INCOME OR
A TRUST IF (I) A COURT IN THE UNITED STATES IS ABLE TO EXERCISE PRIMARY
SUPERVISION OVER THE ADMINISTRATION OF THE TRUST AND (II) ONE OR MORE UNITED
STATES FIDUCIARIES HAVE THE AUTHORITY TO CONTROL ALL SUBSTANTIAL DECISIONS OF
THE TRUST.
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IMC HOME EQUITY LOAN OWNER TRUST 1997-6
CERTIFICATE
No. 0001
THIS CERTIFIES THAT IMC Mortgage Company (the "Owner") is the
registered owner of a 99% Percentage Interest in IMC Home Equity Loan Owner
Trust 1997-6 (the "Trust") existing under the laws of the State of Delaware and
created pursuant to the Owner Trust Agreement, dated as of October 1, 1997 (the
"Trust Agreement"), between IMC Securities, Inc., as Depositor, and Wilmington
Trust Company, in its individual capacity and in its fiduciary capacity as
owner trustee under the Trust Agreement (the "Owner Trustee"). Capitalized
terms used but not otherwise defined herein have the meanings assigned to such
terms in the Trust Agreement. The Owner Trustee, on behalf of the Issuer and
not in its individual capacity, has executed this Certificate by one of its
duly authorized signatories as set forth below. This Certificate is one of the
Certificates referred to in the Trust Agreement and is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement to which
the holder of this Certificate by virtue of the acceptance hereof agrees and by
which the holder hereof is bound. Reference is hereby made to the Trust
Agreement for the rights of the holder of this Certificate, as well as for the
terms and conditions of the Trust created by the Trust Agreement.
The holder, by its acceptance hereof, agrees not to transfer this
Certificate except in accordance with terms and provisions of the Agreement.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
IMC HOME EQUITY LOAN OWNER TRUST 1997-6
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By:
-------------------------------------------
Authorized Signatory
DATED: October 23, 1997
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44
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
WILMINGTON TRUST COMPANY
as Owner Trustee
By:
--------------------------------------
Authorized Signatory
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
______________________________________________________________________________
the within Instrument, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________________________________________ Attorney to
transfer said Instrument on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
---------------------
*/
-----------------------------------
Signature Guaranteed:
*/
-----------------------------------
NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Instrument in every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by a member firm
of the New York Stock Exchange or a commercial bank or trust
company.
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46
EXHIBIT B-2
TO THE TRUST AGREEMENT
(FORM OF CERTIFICATE ISSUED TO THE DEPOSITOR)
THE EQUITY INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR
INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE
HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN
THE MEANING OF RULE 3A-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED
(INCLUDING, BUT NOT LIMITED TO, IMC MORTGAGE COMPANY AND IMC SECURITIES, INC.)
IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT
AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS RESIDUAL INTEREST UNDER
THE ACT OR ANY STATE SECURITIES LAWS.
THIS CERTIFICATE IS NONTRANSFERABLE. NOTWITHSTANDING ANYTHING HEREIN OR IN THE
TRUST AGREEMENT TO THE CONTRARY, ANY ATTEMPTED TRANSFER OF THIS CERTIFICATE
SHALL BE NULL AND VOID FOR ALL PURPOSES.
IMC HOME EQUITY LOAN OWNER TRUST 1997-6
CERTIFICATE
No. 0002
THIS CERTIFIES THAT IMC SECURITIES, INC. (the "Owner") is the
registered owner of a 1% Percentage Interest of the IMC Home Equity Loan Owner
Trust 1997-6 (the "Trust") existing under the laws of the State of Delaware and
created pursuant to the Trust Agreement, dated as of October 1, 1997 (the
"Trust Agreement") between IMC Securities, inc., as Depositor and Wilmington
Trust Company, not in its individual capacity but solely in its fiduciary
capacity as owner trustee under the Trust Agreement (the "Owner Trustee").
Capitalized terms used but not otherwise defined herein have the meanings
assigned to them in the Trust Agreement. The
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Owner Trustee, on behalf of the Issuer and not in its individual capacity, has
executed this Certificate by one of its duly authorized signatories as set
forth below. This Certificate is one of the Certificates referred to in the
Trust Agreement and is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement to which the holder of this Certificate by
virtue of acceptance hereof agrees and by which the holder hereof is bound.
Reference is hereby made to the trust Agreement for the rights of the holder of
this Certificate, as well as for the terms and conditions of the Trust created
by the Trust Agreement.
The holder, by its acceptance Certificate hereof, agrees not to transfer this
Certificate.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the trust and not
in its individual capacity, has caused this Certificate to be duly executed.
IMC HOME EQUITY LOAN OWNER TRUST 1997-6
By: Wilmington Trust Company, not in
its individual capacity but solely
as Owner Trustee under the Trust
Agreement
By:
----------------------------------
Authorized Signatory
DATED: October 23, 1997
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CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
By:
---------------------------------
Authenticating Agent
3
