EXHIBIT 4.1
IMPAC CMB TRUST SERIES 1999-1
Issuer
and
LASALLE NATIONAL BANK
Indenture Trustee
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INDENTURE
Dated as of February 26, 1999
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COLLATERALIZED ASSET-BACKED BONDS
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TABLE OF CONTENTS
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Section Page
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ARTICLE I
Definitions
1.01. DEFINITIONS................................................................................2
1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..........................................2
1.03. RULES OF CONSTRUCTION......................................................................2
ARTICLE II
Original Issuance of Bonds
2.01. FORM.......................................................................................4
2.02. EXECUTION, AUTHENTICATION AND DELIVERY.....................................................4
2.03. ACCEPTANCE OF MORTGAGE LOANS BY INDENTURE TRUSTEE..........................................4
ARTICLE III
Covenants
3.01. COLLECTION OF PAYMENTS WITH RESPECT TO THE MORTGAGE LOANS..................................6
3.02. MAINTENANCE OF OFFICE OR AGENCY............................................................6
3.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST; PAYING AGENT.......................................6
3.04. EXISTENCE..................................................................................7
3.05. PAYMENT OF PRINCIPAL AND INTEREST..........................................................8
3.06. PROTECTION OF TRUST ESTATE................................................................11
3.07. OPINIONS AS TO TRUST ESTATE...............................................................12
3.08. PERFORMANCE OF OBLIGATIONS................................................................12
3.09. NEGATIVE COVENANTS........................................................................13
3.10. ANNUAL STATEMENT AS TO COMPLIANCE.........................................................13
3.11. RESERVE FUND..............................................................................14
3.12. REPRESENTATIONS AND WARRANTIES CONCERNING THE MORTGAGE LOANS..............................14
3.13. AMENDMENTS TO SERVICING AGREEMENT.........................................................14
3.14. MASTER SERVICER AS AGENT AND BAILEE OF THE INDENTURE TRUSTEE..............................14
3.15. INVESTMENT COMPANY ACT....................................................................15
3.16. ISSUER MAY CONSOLIDATE, ETC...............................................................15
3.17. SUCCESSOR OR TRANSFEREE...................................................................17
3.18. NO OTHER BUSINESS.........................................................................17
3.19. NO BORROWING..............................................................................17
3.20. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.........................................17
3.21. CAPITAL EXPENDITURES......................................................................17
3.22. DETERMINATION OF BOND INTEREST RATE.......................................................18
3.23. RESTRICTED PAYMENTS.......................................................................18
3.24. NOTICE OF EVENTS OF DEFAULT...............................................................18
3.25. FURTHER INSTRUMENTS AND ACTS..............................................................18
3.26. STATEMENTS TO BONDHOLDERS.................................................................18
3.27. PAYMENTS UNDER THE BOND INSURANCE POLICIES................................................18
3.28. REPLACEMENT BOND INSURANCE POLICIES.......................................................19
ARTICLE IV
The Bonds; Satisfaction and Discharge of Indenture
4.01. THE BONDS.................................................................................20
4.02. REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE OF BONDS;
APPOINTMENT OF BOND REGISTRAR AND CERTIFICATE REGISTRAR...................................20
4.03. MUTILATED, DESTROYED, LOST OR STOLEN BONDS................................................21
4.04. PERSONS DEEMED OWNERS.....................................................................22
4.05. CANCELLATION..............................................................................22
4.06. BOOK-ENTRY BONDS..........................................................................22
4.07. NOTICES TO DEPOSITORY.....................................................................23
4.08. DEFINITIVE BONDS..........................................................................23
4.09. TAX TREATMENT.............................................................................24
4.10. SATISFACTION AND DISCHARGE OF INDENTURE...................................................24
4.11. APPLICATION OF TRUST MONEY................................................................25
4.12. SUBROGATION AND COOPERATION...............................................................25
4.13. REPAYMENT OF MONIES HELD BY PAYING AGENT..................................................26
4.14. TEMPORARY BONDS...........................................................................26
ARTICLE V
DEFAULT AND REMEDIES
5.01. EVENTS OF DEFAULT.........................................................................28
5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT........................................28
5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY INDENTURE TRUSTEE.................29
5.04. REMEDIES; PRIORITIES......................................................................31
5.05. OPTIONAL PRESERVATION OF THE TRUST ESTATE.................................................33
5.06. LIMITATION OF SUITS.......................................................................33
5.07. UNCONDITIONAL RIGHTS OF BONDHOLDERS TO RECEIVE PRINCIPAL AND INTEREST.....................34
5.08. RESTORATION OF RIGHTS AND REMEDIES........................................................34
5.09. RIGHTS AND REMEDIES CUMULATIVE............................................................34
5.10. DELAY OR OMISSION NOT A WAIVER............................................................34
5.11. CONTROL BY BOND INSURER...................................................................35
5.12. WAIVER OF PAST DEFAULTS...................................................................35
5.13. UNDERTAKING FOR COSTS.....................................................................36
5.14. WAIVER OF STAY OR EXTENSION LAWS..........................................................36
5.15. SALE OF TRUST ESTATE......................................................................36
5.16. ACTION ON BONDS...........................................................................38
ARTICLE VI
THE INDENTURE TRUSTEE
6.01. DUTIES OF INDENTURE TRUSTEE...............................................................40
6.02. RIGHTS OF INDENTURE TRUSTEE...............................................................41
6.03. INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE....................................................41
6.04. INDENTURE TRUSTEE'S DISCLAIMER............................................................41
6.05. NOTICE OF EVENT OF DEFAULT................................................................42
6.06. REPORTS BY INDENTURE TRUSTEE TO HOLDERS AND TAX ADMINISTRATION............................42
6.07. COMPENSATION AND INDEMNITY................................................................42
6.08. REPLACEMENT OF INDENTURE TRUSTEE..........................................................43
6.09. SUCCESSOR INDENTURE TRUSTEE BY MERGER.....................................................44
6.10. APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE TRUSTEE.........................44
6.11. ELIGIBILITY; DISQUALIFICATION.............................................................45
6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER..........................................46
6.13. REPRESENTATIONS AND WARRANTIES............................................................46
6.14. DIRECTIONS TO INDENTURE TRUSTEE...........................................................46
6.15. THE AGENTS................................................................................47
ARTICLE VII
BONDHOLDERS' LISTS AND REPORTS
7.01. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF BONDHOLDERS....................48
7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO BONDHOLDERS................................48
7.03. REPORTS OF ISSUER.........................................................................48
7.04. REPORTS BY INDENTURE TRUSTEE..............................................................49
7.05. STATEMENTS TO BONDHOLDERS.................................................................49
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.01. COLLECTION OF MONEY.......................................................................52
8.02. TRUST ACCOUNTS............................................................................52
8.03. OFFICER'S CERTIFICATE.....................................................................52
8.04. TERMINATION UPON DISTRIBUTION TO BONDHOLDERS..............................................53
8.05. RELEASE OF TRUST ESTATE...................................................................53
8.06. SURRENDER OF BONDS UPON FINAL PAYMENT.....................................................53
8.07. OPTIONAL REDEMPTION OF THE BONDS..........................................................53
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF BONDHOLDERS....................................55
9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF BONDHOLDERS.......................................56
9.03. EXECUTION OF SUPPLEMENTAL INDENTURES......................................................58
9.04. EFFECT OF SUPPLEMENTAL INDENTURE..........................................................58
9.05. CONFORMITY WITH TRUST INDENTURE ACT.......................................................58
9.06. REFERENCE IN BONDS TO SUPPLEMENTAL INDENTURES.............................................58
ARTICLE X
MISCELLANEOUS
10.01. COMPLIANCE CERTIFICATES AND OPINIONS, ETC.................................................59
10.02. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE..........................................60
10.03. ACTS OF BONDHOLDERS.......................................................................61
10.04. NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND RATING AGENCIES...........................61
10.05. NOTICES TO BONDHOLDERS; XXXXXX............................................................62
10.06. CONFLICT WITH TRUST INDENTURE ACT.........................................................63
10.07. EFFECT OF HEADINGS........................................................................63
10.08. SUCCESSORS AND ASSIGNS....................................................................63
10.09. SEPARABILITY..............................................................................63
10.10. BENEFITS OF INDENTURE.....................................................................63
10.11. LEGAL HOLIDAYS............................................................................64
10.12. GOVERNING LAW.............................................................................64
10.13. COUNTERPARTS..............................................................................64
10.14. RECORDING OF INDENTURE....................................................................64
10.15. ISSUER OBLIGATION.........................................................................64
10.16. NO PETITION...............................................................................64
10.17. INSPECTION................................................................................65
Signatures and Seals ......................................................................................... 59
Acknowledgments .............................................................................................. 60
EXHIBITS
Exhibit A-1 - Form of Class A-1 Bonds
Exhibit A-2 - Form of Class A-2 Bonds
Exhibit B - Mortgage Loan Schedule
Exhibit C - Custodial Agreement
Appendix A Definitions
This Indenture, dated as of February 26, 1999, between Impac
CMB Trust Series 1999-1, a Delaware business trust, as Issuer (the "Issuer"),
and LaSalle National Bank, a national banking association, as Indenture Trustee
(the "Indenture Trustee"),
WITNESSETH THAT:
Each party hereto agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the Issuer's
Collateralized Asset-Backed Bonds, Series 1999-1 (the "Bonds") and the Bond
Insurer.
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as trustee for the benefit of the Holders of the Bonds and the
Bond Insurer, all of the Issuer's right, title and interest in and to whether
now existing or hereafter created by (a) the Mortgage Loans, Eligible Substitute
Mortgage Loans and the proceeds thereof and all rights under the Related
Documents; (b) all funds on deposit from time to time in the Collection Account
allocable to the Mortgage Loans excluding any investment income from such funds;
(c) all funds on deposit from time to time in the Payment Account and in all
proceeds thereof; (d) all funds on deposit from time to time in the Reserve Fund
and in all proceeds thereof; (e) all rights under the (i) Mortgage Loan Sale and
Contribution Agreement as assigned to the Issuer, (ii) the Servicing Agreement
and any Sub- Servicing Agreements, (iii) any title, hazard and primary insurance
policies with respect to the Mortgaged Properties (including the CMAC PMI
Policy), (iv) the Cap Contract (including the Cap Contract Pledged Collateral);
and (f) all present and future claims, demands, causes and choses in action in
respect of any or all of the foregoing and all payments on or under, and all
proceeds of every kind and nature whatsoever in respect of, any or all of the
foregoing and all payments on or under, and all proceeds of every kind and
nature whatsoever in the conversion thereof, voluntary or involuntary, into cash
or other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, checks, deposit accounts, rights to payment of any
and every kind, and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing (collectively, the "Trust Estate" or the
"Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Bonds, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, as trustee on behalf of the Holders of
the Bonds and the Bond Insurer, acknowledges such Grant, accepts the trust under
this Indenture in accordance with the provisions hereof and agrees to perform
its duties as Indenture Trustee as required herein. The Indenture Trustee agrees
that it will hold the Bond Insurance Policies in trust and that it will hold any
proceeds of any claim made upon the Bond Insurance Policies solely for the use
and benefit of the Holders of the Bonds in accordance with the terms hereof and
the terms of the Bond Insurance Policies.
ARTICLE I
Definitions
Section 1.01. DEFINITIONS. For all purposes of this Indenture, except
as otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions attached hereto as Appendix A which is
incorporated by reference herein. All other capitalized terms used herein shall
have the meanings specified herein.
Section 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act (the
"TIA"), the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Bonds.
"indenture security holder" means a Bondholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rules
and have the meanings assigned to them by such definitions.
Section 1.03. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
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(v) words in the singular include the plural and words
in the plural include the singular; and
(vi) any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in
connection herewith means such agreement, instru ment or statute as
from time to time amended, modified or supplemented and includes (in
the case of agreements or instruments) references to all attachments
thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
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ARTICLE II
Original Issuance of Bonds
Section 2.01. FORM. The Bonds, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the form set forth in
Exhibits A-1 and A-2, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture.
The Bonds shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders).
The terms of the Bonds set forth in Exhibits A-1 and A-2 are part of
the terms of this Indenture.
Section 2.02. EXECUTION, AUTHENTICATION AND DELIVERY. The Bonds shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Bonds may be manual or
facsimile.
Bonds bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Bonds or did not hold
such offices at the date of such Bonds.
The Indenture Trustee shall upon Issuer Request authenticate and
deliver the Class A-1 and Class A-2 Bonds for original issue in an aggregate
initial principal amount of $186,079,669.00.
Each Class of Bonds shall be dated the date of its authentication. The
Bonds shall be issuable as registered Bonds and the Bonds shall be issuable in
the minimum initial Bond Principal Balances of $25,000 and in integral multiples
of $1 in excess thereof.
No Bond shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Bond a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Bond shall be conclusive
evidence, and the only evidence, that such Bond has been duly authenticated and
delivered hereunder.
Section 2.03. ACCEPTANCE OF MORTGAGE LOANS BY INDENTURE TRUSTEE. (a)
The Indenture Trustee, or the Custodian on its behalf, acknowledges receipt of,
subject to the exceptions it notes pursuant to the procedures described below,
the documents (or certified copies thereof) referred to in Section 2.1(b) of the
Mortgage Loan Sale and Contribution Agreement and declares that the Custodian
holds, and, pursuant to the Custodial Agreement attached as Exhibit C hereto,
will continue to hold, the Mortgage Loans and those documents and any
amendments, replacements or supplements thereto on behalf of the Indenture
Trustee in trust for the use and benefit of all present and future Holders of
the Bonds and the Bond Insurer.
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(b) Upon deposit of the Repurchase Price in the Collection Account, the
Indenture Trustee shall direct the Custodian to release to the Seller the
related Mortgage File and shall execute and deliver all instruments of transfer
or assignment, without recourse, furnished to it by the Seller as are necessary
to vest in the Seller title to and rights under the related Mortgage Loan. Such
purchase shall be deemed to have occurred on the date on which certification of
the deposit of the Repurchase Price in the Payment Account was received by the
Indenture Trustee.
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ARTICLE III
Covenants
Section 3.01. COLLECTION OF PAYMENTS WITH RESPECT TO THE MORTGAGE
LOANS. The Indenture Trustee shall establish and maintain an Eligible Account
(the "Payment Account") in which the Indenture Trustee shall, subject to the
terms of this paragraph, deposit, on the same day as it is received from the
Master Servicer, each remittance received by the Indenture Trustee with respect
to the Mortgage Loans. The Indenture Trustee shall make all payments of
principal of and interest on the Bonds, subject to Section 3.03 as provided in
Section 3.05 herein from monies on deposit in the Payment Account.
Section 3.02. MAINTENANCE OF OFFICE OR AGENCY. The Issuer will maintain
in the Borough of Manhattan, The City of New York, an office or agency where,
subject to satisfaction of conditions set forth herein, Bonds may be surrendered
for registration of transfer or exchange, and where notices and demands to or
upon the Issuer in respect of the Bonds and this Indenture may be served. The
Issuer hereby initially appoints the Indenture Trustee to serve as its agent for
the foregoing purposes. If at any time the Issuer shall fail to maintain any
such office or agency or shall fail to furnish the Indenture Trustee with the
address thereof, such surrenders, notices and demands may be made or served at
the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee
as its agent to receive all such surrenders, notices and demands.
Section 3.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST; PAYING AGENT. (a)
As provided in Section 3.01, all payments of amounts due and payable with
respect to any Bonds that are to be made from amounts withdrawn from the Payment
Account pursuant to Section 3.01 shall be made on behalf of the Issuer by the
Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from the
Payment Account for payments of Bonds shall be paid over to the Issuer except as
provided in this Section 3.03.
The Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent it hereby so agrees), subject to the provisions of
this Section 3.03, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts
due with respect to the Bonds in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee and the Bond Insurer
notice of any default by the Issuer of which it has actual knowledge in
the making of any payment required to be made with respect to the
Bonds;
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(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as Paying Agent and forthwith
pay to the Indenture Trustee all sums held by it in trust for the
payment of Bonds if at any time it ceases to meet the standards
required to be met by a Paying Agent at the time of its appointment;
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on any Bonds of
any applicable withholding taxes imposed thereon and with respect to
any applicable reporting requirements in connection therewith; and
(vi) not commence a Bankruptcy proceeding against the
Issuer in connection with this Indenture.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Request direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Bond (other than amounts paid under the
related Bond Insurance Policy) and remaining unclaimed for one year after such
amount has become due and payable shall be discharged from such trust and be
paid to the Issuer on Issuer Request; and the Holder of such Bond shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
an Authorized Newspaper published in the English language, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer. The Indenture
Trustee, with the consent of the Bond Insurer, so long as no Bond Insurer
Default exists, may also adopt and employ, at the expense and direction of the
Issuer, any other reasonable means of notification of such repayment (including,
but not limited to, mailing notice of such repayment to Holders whose Bonds have
been called but have not been surrendered for redemption or whose right to or
interest in monies due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Holder).
Section 3.04. EXISTENCE. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the State
of Delaware (unless it becomes, or any
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successor Issuer hereunder is or becomes, organized under the laws of any other
state or of the United States of America, in which case the Issuer will keep in
full effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Bonds, the
Mortgage Loans and each other instrument or agreement included in the Trust
Estate.
Section 3.05. PAYMENT OF PRINCIPAL AND INTEREST. (a) On each Payment
Date from amounts on deposit in the Payment Account in accordance with Section
8.02 hereof, the Indenture Trustee shall pay to the Persons specified in clauses
(b), (c) and (d) below, to the extent provided therein, the ARM Pool Available
Funds and High LTV Pool Available Funds, any Insured Amounts and the Reserve
Fund Release Amount; PROVIDED, HOWEVER, that any amounts representing payments
from the Bond Insurer shall only be used to pay interest and principal to the
Bondholders pursuant to clauses (b)(i) and (ii), (c)(i) and (ii) and (h) below
and the Reserve Fund Release Amount shall only be used to reimburse the Bond
Insurer or used to pay principal to the Bondholders pursuant to clauses (b)(ii)
and (iii), (c)(ii) and (iii) and (h) and Section 5.02 below. Interest will
accrue on the Bonds during the related Accrual Period on the basis of the actual
number of days in such Accrual Period and a year assumed to consist of 360 days.
(b) On each Payment Date, first, the ARM Pool Available Funds and any
ARM Pool Insured Amount and second, the Reserve Fund Release Amount, subject to
Section 3.11, shall be distributed in the following order of priority, in each
case to the extent of amounts available:
(i) first, to the Class A-1 Bondholders, Accrued Bond
Interest thereon for such Payment Date, subject to the Class A-1
Available Interest;
(ii) second, to the Class A-1 Bondholders, the ARM
Pool Principal Payment Amount, in reduction of the Bond Principal
Balance of the Class A-1 Bonds until the Bond Principal Balance of the
Class A-1 Bonds has been reduced to zero;
(iii) third, provided that no Bond Insurer Default is
occurring, to the Bond Insurer, the aggregate of all payments, if any,
made by the Bond Insurer under the related Bond Insurance Policy and
any other amounts due to the Bond Insurer pursuant to the Insurance
Agreement, to the extent not previously paid or reimbursed;
(iv) fourth, from the amount remaining (the "ARM Pool
Net Monthly Excess Cash Flow"), to the Class A-1 Bondholders, the ARM
Pool Overcollateralization Increase Amount, in reduction of the Bond
Principal Balance of the Class A-1 Bonds until the Bond Principal
Balance of the Class A-1 Bonds has been reduced to zero;
(v) fifth, to the Reserve Fund, the ARM Pool Reserve
Fund Addition for such Payment Date;
(vi) sixth, to pay the ARM Pool Basis Risk Shortfall
Carry-Forward Amount on the Class A-1 Bonds until reduced to zero;
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(vii) seventh, to the Class A-1 Bonds, in respect of
any related Unpaid Interest Shortfalls previously allocated thereto,
until the amount of such Unpaid Interest Shortfalls has been reduced to
zero;
(viii) eighth, any remaining amounts will be
distributed to the Indenture Trustee for amounts owing the Indenture
Trustee hereunder remaining unpaid; and
(ix) ninth, any remaining amounts will be distributed
to the Issuer or the Certificate Paying Agent, as its designee, for the
benefit of the Holders of the Trust Certificates.
(c) On each Payment Date, first, the High LTV Pool Available Funds and
any High LTV Pool Insured Amount, and second, the Reserve Fund Release Amount,
subject to Section 3.11, shall be distributed in the following order of
priority, in each case to the extent of available amounts:
(i) first, to the Class A-2 Bondholders, Accrued Bond
Interest thereon for such Payment Date, subject to the Class A-2
Available Interest;
(ii) second, to the Class A-2 Bondholders, the High
LTV Pool Principal Payment Amount, in reduction of the Bond Principal
Balance of the Class A-2 Bonds until the Bond Principal Balance of the
Class A-2 Bonds has been reduced to zero;
(iii) third, provided that no Bond Insurer Default is
occurring, to the Bond Insurer, the aggregate of all payments, if any,
made by the Bond Insurer under the related Bond Insurance Policy and
any other amounts due to the Bond Insurer pursuant to the Insurance
Agreement, to the extent not previously paid or reimbursed;
(iv) fourth, from the amount remaining (the "High LTV
Pool Net Monthly Excess Cash Flow"), to the Class A-2 Bondholders, the
High LTV Pool Overcollateralization Increase Amount, in reduction of
the Bond Principal Balance of the Class A-2 Bonds until the Bond
Principal Balance of the Class A-2 Bonds has been reduced to zero;
(v) fifth, to the Reserve Fund, the High LTV Pool
Reserve Fund Addition for such Payment Date;
(vi) sixth, to pay the High LTV Pool Basis Risk
Shortfall Carry-Forward Amount on the Class A-2 Bonds until reduced to
zero;
(vii) seventh, to the Class A-2 Bonds, in respect of
any related Unpaid Interest Shortfalls previously allocated thereto,
until the amount of such Unpaid Interest Shortfalls has been reduced to
zero;
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(viii) eighth, any remaining amounts will be
distributed to the Indenture Trustee for amounts owing the Indenture
Trustee hereunder remaining unpaid; and
(ix) ninth, any remaining amounts will be distributed
to the Issuer or the Certificate Paying Agent, as its designee, for the
benefit of the Holders of the Trust Certificates.
(d) On each Payment Date, following payments pursuant to
Section 3.05(b), (c) and (h) and Section 5.02, as applicable, the Reserve Fund
Certificate Payment Amount, if any, will be released to the Issuer or the
Certificate Paying Agent, as its designee, for the benefit of the Holders of the
Trust Certificates. In addition, on each Payment Date where an Insured Amount is
paid by the Bond Insurer, the Indenture Trustee shall reimburse the Bond Insurer
for such Insured Amount from the Reserve Fund prior to any reimbursement
pursuant to Section 3.05(b)(iii) and Section 3.05(c)(iii) above.
(e) Each distribution with respect to a Book-Entry Bond shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Bond Owners that it represents and to each indirect participating brokerage
firm (a "brokerage firm" or "indirect participating firm") for which it acts as
agent. Each brokerage firm shall be responsible for disbursing funds to the Bond
Owners that it represents. None of the Indenture Trustee, the Bond Registrar,
the Depositor or the Master Servicer shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(f) On each Payment Date, the Certificate Paying Agent shall
deposit in the Certificate Distribution Account all amounts it received pursuant
to this Section 3.05 for the purpose of distributing such funds to the
Certificateholders.
(g) Any installment of interest or principal, if any, payable
on any Bond that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall, if such Holder shall have so requested at least
five Business Days prior to the related Record Date, be paid to each Holder of
record on the preceding Record Date, by wire transfer to an account specified in
writing by such Holder reasonably satisfactory to the Indenture Trustee as of
the preceding Record Date or in all other cases or if no such instructions have
been delivered to the Indenture Trustee, by check to such Bondholder mailed to
such Holder's address as it appears in the Bond Register in the amount required
to be distributed to such Holder on such Payment Date pursuant to such Holder's
Bonds; PROVIDED, HOWEVER, that the Indenture Trustee shall not pay to such
Holders any amount required to be withheld from a payment to such Holder by the
Code.
(h) The principal of each Bond shall be due and payable in
full on the Final Scheduled Payment Date for such Bond as provided in the forms
of Bond set forth in Exhibits A-1 and A-2. All principal payments on the Bonds
shall be made to the Bondholders entitled thereto in accordance with the
Percentage Interests represented by such Bonds. Upon notice to the Indenture
Trustee by the Issuer, the Indenture Trustee shall notify the Person in whose
name a
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Xxxx is registered at the close of business on the Record Date preceding the
Final Scheduled Payment Date or other final Payment Date (including any final
Payment Date resulting from any redemption pursuant to Section 8.07 hereof).
Such notice shall to the extent practicable be mailed no later than five
Business Days prior to such Final Scheduled Payment Date or other final Payment
Date and shall specify that payment of the principal amount and any interest due
with respect to such Bond at the Final Scheduled Payment Date or other final
Payment Date will be payable only upon presentation and surrender of such Bond
and shall specify the place where such Bond may be presented and surrendered for
such final payment. No interest shall accrue on the Bonds on or after the Final
Scheduled Payment Date or any such other final Payment Date.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to sign any financing statement, continuation statement or
other instrument required to be signed pursuant to this Section 3.05 upon the
Issuer's preparation thereof and delivery to the Indenture
Trustee.
Section 3.06. PROTECTION OF TRUST ESTATE. (a) The Issuer will from time
to time prepare, execute and deliver all such supplements and amendments hereto
and all such financing statements, continuation statements, instruments of
further assurance and other instruments, and will take such other action
necessary or advisable to:
(i) maintain or preserve the lien and security interest
(and the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(ii) perfect, publish notice of or protect the validity
of any Grant made or to be made by this Indenture;
(iii) cause the Issuer or Master Servicer to enforce
any of the rights to the Mortgage Loans; or
(iv) preserve and defend title to the Trust Estate and
the rights of the Indenture Trustee, the Bond Insurer and the
Bondholders in such Trust Estate against the claims of all persons and
parties.
(b) Except as otherwise provided in this Indenture, the Indenture
Trustee shall not remove any portion of the Trust Estate that consists of money
or is evidenced by an instrument, certificate or other writing from the
jurisdiction in which it was held at the date of the most recent Opinion of
Counsel delivered pursuant to Section 3.07 hereof (or from the jurisdiction in
which it was held as described in the Opinion of Counsel delivered on the
Closing Date pursuant to Section 3.07(a) hereof, or if no Opinion of Counsel has
yet been delivered pursuant to Section 3.07(b) hereof unless the Indenture
Trustee shall have first received an Opinion of Counsel to the effect that the
lien and security interest created by this Indenture with respect to such
property will continue to be maintained after giving effect to such action or
actions).
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to sign any financing statement, continuation statement or
other instrument required to be signed pursuant to this Section 3.06 upon the
Issuer's preparation thereof and delivery to the Indenture Trustee.
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Section 3.07. OPINIONS AS TO TRUST ESTATE. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee, the Bond Insurer and the Owner
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording and filing of
this Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continu ation statements, as are necessary to perfect and make
effective the lien and first priority security interest in the Collateral and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and first priority
security interest effective.
(b) On or before April 15 in each calendar year, beginning in 1999, the
Issuer shall furnish to the Indenture Trustee and the Bond Insurer an Opinion of
Counsel at the expense of the Issuer either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental hereto
and any other requisite documents and with respect to the execution and filing
of any financing statements and continuation statements as is necessary to
maintain the lien and first priority security interest in the Collateral and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security interest.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest in the Collateral until December 31
in the following calendar year.
Section 3.08. PERFORMANCE OF OBLIGATIONS. (a) The Issuer will
punctually perform and observe all of its obligations and agreements contained
in this Indenture, the Basic Documents and in the instruments and agreements
included in the Trust Estate.
(b) The Issuer, with the consent of the Bond Insurer so long as no Bond
Insurer Default exists, may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer.
(c) The Issuer will not take any action or permit any action to be
taken by others which would release any Person from any of such Person's
covenants or obligations under any of the documents relating to the Mortgage
Loans or under any instrument included in the Trust Estate, or which would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any of the documents relating to
the Mortgage Loans or any such instrument, except such actions as the Master
Servicer is expressly permitted to take in the Servicing Agreement. The
Indenture Trustee, as pledgee of the Mortgage Loans, shall with the consent of,
or direction of, the Bond Insurer, so long as no Bond Insurer Default exists, be
able to exercise the rights of the Issuer to direct the actions of the Master
Servicer pursuant to the Servicing Agreement.
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(d) The Issuer may retain an administrator and may enter into contracts
acceptable to the Bond Insurer with other Persons for the performance of the
Issuer's obligations hereunder, and performance of such obligations by such
Persons shall be deemed to be performance of such
obligations by the Issuer.
Section 3.09. NEGATIVE COVENANTS. So long as any Bonds are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture,
sell, transfer, exchange or otherwise dispose of the Trust Estate,
unless directed to do so by the Bond Insurer or the Indenture Trustee
with the consent of the Bond Insurer, so long as no Bond Insurer
Default exists;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Bonds (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Bondholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust
Estate;
(iii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations with
respect to the Bonds under this Indenture except as may be expressly
permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this
Indenture) to be created on or extend to or other wise arise upon or
burden the Trust Estate or any part thereof or any interest therein or
the proceeds thereof or (C) permit the lien of this Indenture not to
constitute a valid first priority security interest in the Trust
Estate; or
(iv) waive or impair, or fail to assert rights under,
the Mortgage Loans, or impair or cause to be impaired the Issuer's
interest in the Mortgage Loans, the Mortgage Loan Sale and Contribution
Agreement or in any Basic Document, if any such action would materially
and adversely affect the interests of the Bondholders or the Bond
Insurer.
Section 3.10. ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will
deliver to the Indenture Trustee and the Bond Insurer, within 120 days after the
end of each fiscal year (which, for the Issuer, is the calendar year) of the
Issuer (commencing with the fiscal year 1999), an Officer's Certificate stating,
as to the Authorized Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such
year and of its performance under this Indenture has been made under
such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year, or, if there has
been a default in its compliance with any such condition or
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covenant, specifying each such default known to such Authorized Officer
and the nature and status thereof.
Section 3.11. RESERVE FUND. The Indenture Trustee shall establish and
maintain an Eligible Account (the "Reserve Fund"). On each Payment Date, the
Trustee shall deposit into and distribute from the Reserve Fund the amounts
described in Section 3.05 hereof. In addition, to the extent the amounts payable
pursuant to Section 3.05 or Section 5.02 exceed amounts available therefor, the
Reserve Fund Release Amount shall be allocated to the Class A-1 Bonds and the
Class A-2 Bonds pro rata based on the remaining shortfall after allocation of
all other available funds.
Section 3.12. REPRESENTATIONS AND WARRANTIES CONCERNING THE MORTGAGE
LOANS. The Indenture Trustee, as pledgee of the Mortgage Loans, has the benefit
of the representations and warranties made by the Seller in the Mortgage Loan
Sale and Contribution Agreement concerning the Seller and the Mortgage Loans and
the right to enforce the remedies against the Seller provided in such Mortgage
Loan Sale and Contribution Agreement to the same extent as though such
representations and warranties were made directly to the Indenture Trustee. If a
Responsible Officer of the Indenture Trustee has actual knowledge of any breach
of any representation or warranty made by the Seller in the Mortgage Loan Sale
and Contribution Agreement, the Indenture Trustee shall promptly notify the
Seller and the Bond Insurer of such finding and the Seller's obligation to cure
such defect or repurchase or substitute for the related Mortgage Loan. As
pledgee under the CMAC PMI Policy, the Indenture Trustee shall enforce such
policy to the extent the Master Servicer fails to do so.
Section 3.13. AMENDMENTS TO SERVICING AGREEMENT. The Issuer covenants
with the Inden ture Trustee and the Bond Insurer that it will not enter into any
amendment or supplement to the Servicing Agreement without the prior written
consent of the Indenture Trustee. The Indenture Trustee, as pledgee of the
Mortgage Loans, may, with the consent of the Bond Insurer so long as no Bond
Insurer Default exists, decline to enter into or consent to any such supplement
or amendment if the Bond Insurer's or Bondholders' rights, duties or immunities
shall be adversely affected.
Section 3.14. MASTER SERVICER AS AGENT AND BAILEE OF THE INDENTURE
TRUSTEE. Solely for purposes of perfection under Section 9-305 of the Uniform
Commercial Code or other similar applicable law, rule or regulation of the state
in which such property is held by the Master Servicer, the Issuer and the
Indenture Trustee hereby acknowledge that the Master Servicer is acting as
bailee of the Indenture Trustee in holding amounts on deposit in the Collection
Account, as well as its bailee in holding any Related Documents released to the
Master Servicer, and any other items constituting a part of the Trust Estate
which from time to time come into the possession of the Master Servicer. It is
intended that, by the Master Servicer's acceptance of such bailee arrangement,
the Indenture Trustee, as a secured party of the Mortgage Loans, will be deemed
to have possession of such Related Documents, such monies and such other items
for purposes of Section 9-305 of the Uniform Commercial Code of the state in
which such property is held by the Master Servicer.
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Section 3.15. INVESTMENT COMPANY ACT. The Issuer shall not become an
"investment company" or be under the "control" of an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (or any
successor or amendatory statute), and the rules and regulations thereunder
(taking into account not only the general definition of the term "investment
company" but also any available exceptions to such general definition);
provided, however, that the Issuer shall be in compliance with this Section 3.15
if it shall have obtained an order exempting it from regulation as an
"investment company" so long as it is in compliance with the conditions imposed
in such order.
Section 3.16. ISSUER MAY CONSOLIDATE, ETC. (a) The Issuer shall not
consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any state or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form reasonably satisfactory to the Indenture Trustee and the Bond
Insurer, the due and punctual payment of the principal of and interest
on all Bonds, and the payment of the Bond Insurance Premium and all
other amounts payable to the Bond Insurer and the Indenture Trustee,
the payment to the Certificate Paying Agent of all amounts due to the
Certificateholders, and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein;
(ii) immediately after giving effect to such
transaction, no Event of Default shall have occurred and be continuing;
(iii) the Rating Agencies shall have notified the Issuer
that such transaction shall not cause the rating of the Bonds to be
reduced, suspended or withdrawn or to be considered by either Rating
Agency to be below investment grade without taking into account the
related Bond Insurance Policy;
(iv) the Issuer and the Bond Insurer shall have received
an Opinion of Counsel (and shall have delivered a copy thereof to the
Indenture Trustee) to the effect that such transaction will not (A)
result in a "substantial modification" of the Bonds under Treasury
Regulation section 1.1001-3, or adversely affect the status of the
Bonds as indebtedness for federal income tax purposes, or (B) if 100%
of the Certificates are not owned by IMH Assets Corp., cause the Trust
to be subject to an entity level tax for federal income tax purposes;
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Indenture
Trustee and the Bond Insurer an Officer's Certificate and an Opinion of
Counsel each stating that such
15
consolidation or merger and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act); and
(vii) the Bond Insurer, so long as no Bond Insurer
Default exists, shall have given its prior written consent.
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer
the properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any state thereof, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Bonds and the payment
of the Bond Insurance Premium and all other amounts payable to the Bond
Insurer and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer to be performed or
observed, all as provided herein, (C) expressly agree by means of such
supplemental indenture that all right, title and interest so conveyed
or transferred shall be subject and subordinate to the rights of the
Holders of the Bonds and the Bond Insurer, (D) unless otherwise
provided in such supplemental indenture, expressly agree to indemnify,
defend and hold harmless the Issuer, the Indenture Trustee, and the
Bond Insurer against and from any loss, liability or expense arising
under or related to this Indenture and the Bonds and (E) expressly
agree by means of such supplemental indenture that such Person (or if a
group of Persons, then one specified Person) shall make all filings
with the Commission (and any other appropriate Person) required by the
Exchange Act in connection with the Bonds;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii the Rating Agencies shall have notified the Issuer
that such transaction shall not cause the rating of the Bonds without
taking into account the related Bond Insurance Policy to be reduced,
suspended or withdrawn;
(iv the Issuer and the Bond Insurer shall have received
an Opinion of Counsel (and shall have delivered a copy thereof to the
Indenture Trustee) to the effect that such transaction will not (A)
result in a "substantial modification" of the Bonds under Treasury
Regulation section 1.1001-3, or adversely affect the status of the
Bonds as indebtedness for federal income tax purposes, or (B) if 100%
of the Certificates are not owned by IMH Assets Corp., cause the Trust
to be subject to an entity level tax for federal income tax purposes;
16
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating
that such conveyance or transfer and such supplemental indenture comply
with this Article III and that all conditions precedent herein provided
for relating to such transaction have been complied with (including any
filing required by the Exchange Act); and
(vii) the Bond Insurer, so long as no Bond Insurer
Default exists, shall have given its prior written consent.
Section 3.17. SUCCESSOR OR TRANSFEREE. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.16(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.16(b), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Bonds immediately upon the delivery of written
notice to the Indenture Trustee and the Bond Insurer of such conveyance or
transfer and approval of such transaction given by the Bond Insurer to the
Indenture Trustee.
Section 3.18. NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning and selling and managing the
Mortgage Loans and the issuance of the Bonds and Certificates in the manner
contemplated by this Indenture and the Basic Documents and all activities
incidental thereto.
Section 3.19. NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Bonds and amounts due to the Bond Insurer under this
Indenture and the Insurance Agreement.
Section 3.20. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except
as contemplated by this Indenture or the Basic Documents, the Issuer shall not
make any loan or advance or credit to, or guarantee (directly or indirectly or
by an instrument having the effect of assuring another's payment or performance
on any obligation or capability of so doing or otherwise), endorse or otherwise
become contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or
agree contingently to do so) any stock, obligations, assets or securities of, or
any other interest in, or make any capital contribution to, any other Person.
Section 3.21. CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long- term or operating lease or otherwise) for capital assets
(either realty or personalty).
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Section 3.22. DETERMINATION OF BOND INTEREST RATE. On the Interest
Determination Date the Indenture Trustee shall determine One-Month LIBOR and the
Bond Interest Rate for the Bonds for the following Accrual Period and shall
inform the Issuer, the Bond Insurer, the Master Servicer, and the Depositor at
their respective facsimile numbers given to the Indenture Trustee in writing
thereof. The establishment of One-Month LIBOR on each Interest Determination
Date by the Indenture Trustee and the Indenture Trustee's calculation of the
rate of interest applicable to the Bonds for the related Accrual Period shall
(in the absence of manifest error) be final and binding.
Section 3.23. RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; PROVIDED, HOWEVER, that
the Issuer may make, or cause to be made, (x) distributions and payments to the
Owner Trustee, the Indenture Trustee and the Certificateholders as contemplated
by, and to the extent funds are available for such purpose under this Indenture
and the Trust Agreement and (y) payments to the Master Servicer pursuant to the
terms of the Servicing Agreement. The Issuer will not, directly or indirectly,
make payments to or distributions from the Collection Account except in
accordance with this Indenture and the Basic Documents.
Section 3.24. NOTICE OF EVENTS OF DEFAULT. The Issuer shall give the
Indenture Trustee, the Bond Insurer and the Rating Agencies prompt written
notice of each Event of Default hereunder and under the Trust Agreement.
Section 3.25. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Indenture Trustee or the Bond Insurer, the Issuer will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
Section 3.26. STATEMENTS TO BONDHOLDERS. On each Payment Date, the
Indenture Trustee and the Certificate Registrar shall make available
electronically to the Bond Insurer and to each Bondholder and Certificateholder,
respectively, the Determination Date Report prepared pursuant to Section 4.01 of
the Servicing Agreement.
Section 3.27. PAYMENTS UNDER THE BOND INSURANCE POLICIES. (a) On the
second Business Day prior to any Payment Date and at such time as it shall
deliver an acceleration notice to the Bondholders pursuant to Section 5.02, the
Indenture Trustee on behalf of the Bondholders shall make a draw on the related
Bond Insurance Policy in an amount, if any, equal to the related Deficiency
Amount.
(b) If the Indenture Trustee determines that a Deficiency Amount will
exist for the following Payment Date, then the Indenture Trustee shall submit a
Notice (as defined in the related Bond Insurance Policy) for payment in the
amount of the Deficiency Amount to the Bond Insurer
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no later than 12:00 Noon, New York City time, on the second Business Day prior
to the applicable Payment Date. Upon receipt of such Deficiency Amount in
accordance with the terms of the related Bond Insurance Policy, the Indenture
Trustee shall deposit such Deficiency Amount in the Payment Account for
distribution to Bondholders pursuant to Section 3.05 hereof or with respect to
an acceleration pursuant to Section 5.02 hereof.
In addition, a draw may be made under either Bond Insurance Policy in
respect of any Preference Amount (as defined in and pursuant to the terms and
conditions of the such Bond Insurance Policy) and the Indenture Trustee shall
submit a Notice (as defined in such Bond Insurance Policy) for payment with
respect thereto together with the other documents required to be delivered to
the Bond Insurer pursuant to the related Bond Insurance Policy in connection
with a draw in respect of any Preference Amount.
Section 3.28. REPLACEMENT BOND INSURANCE POLICIES. In the event of a
Bond Insurer Default (a "Replacement Event"), the Issuer, at its expense, in
accordance with and upon satis faction of the conditions set forth in the
related Bond Insurance Policy, including, without limitation, payment in full of
all amounts owed to the Bond Insurer, may, but shall not be required to,
substitute a new surety bond or surety bonds for the existing Bond Insurance
Policy or may arrange for any other form of credit enhancement; PROVIDED,
HOWEVER, that in each case the Bonds shall be rated no lower than the rating
assigned by each Rating Agency to the Bonds immediately prior to such
Replacement Event and the timing and mechanism for drawing on such new credit
enhancement shall be reasonably acceptable to the Indenture Trustee and provided
further that the premiums under the proposed credit enhancement shall not exceed
such premiums under the existing Bond Insurance Policy. It shall be a condition
to substitution of any new credit enhancement that there be delivered to the
Indenture Trustee (i) an Opinion of Counsel, acceptable in form to the Indenture
Trustee and the Rating Agencies, from counsel to the provider of such new credit
enhancement with respect to the enforceability thereof and such other matters as
the Indenture Trustee and the Rating Agencies may require and (ii) an Opinion of
Counsel to the effect that such substitution would not (a) result in a
"substantial modification" of the Bonds under Treasury Regulation section
1.1001-3, or adversely affect the status of the Bonds as indebtedness for
federal income tax purposes, or (b) if 100% of the Certificates are not owned by
IMH Assets Corp., cause the Trust to be subject to an entity level tax for
federal income tax purposes. Upon receipt of the items referred to above and
payment of all amounts owing to the Bond Insurer and the taking of physical
possession of the new credit enhancement, the Indenture Trustee shall, within
five Business Days following receipt of such items and such taking of physical
possession, deliver the replaced Bond Insurance Policy to the Bond Insurer. In
the event of any such replacement the Issuer shall give written notice thereof
to the Rating Agencies.
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ARTICLE IV
The Bonds; Satisfaction and Discharge of Indenture
Section 4.01. THE BONDS. The Bonds shall be registered in the name of a
nominee desig nated by the Depository. Beneficial Owners will hold interests in
the Bonds through the book- entry facilities of the Depository in minimum
initial Bond Principal Balances of $25,000 and inte gral multiples of $1 in
excess thereof.
The Indenture Trustee may for all purposes (including the making of
payments due on the Bonds) deal with the Depository as the authorized
representative of the Beneficial Owners with respect to the Bonds for the
purposes of exercising the rights of Holders of the Bonds hereunder. Except as
provided in the next succeeding paragraph of this Section 4.01, the rights of
Beneficial Owners with respect to the Bonds shall be limited to those
established by law and agreements between such Beneficial Owners and the
Depository and Depository Participants. Except as provided in Section 4.08
hereof, Beneficial Owners shall not be entitled to definitive certificates for
the Bonds as to which they are the Beneficial Owners. Requests and directions
from, and votes of, the Depository as Holder of the Bonds shall not be deemed
inconsistent if they are made with respect to different Beneficial Owners. The
Indenture Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Bondholders and give notice to the
Depository of such record date. Without the consent of the Issuer and the
Indenture Trustee, no Bond may be transferred by the Depository except to a
successor Depository that agrees to hold such Xxxx for the account of the
Beneficial Owners.
In the event the Depository Trust Company resigns or is removed as
Depository, the Indenture Trustee with the approval of the Issuer may appoint a
successor Depository. If no successor Depository has been appointed within 30
days of the effective date of the Depository's resignation or removal, each
Beneficial Owner shall be entitled to certificates representing the Bonds it
beneficially owns in the manner prescribed in Section 4.08.
The Bonds shall, on original issue, be executed on behalf of the Issuer
by the Owner Trustee, not in its individual capacity but solely as Owner
Trustee, authenticated by the Indenture Trustee and delivered by the Indenture
Trustee to or upon the order of the Issuer.
Section 4.02. REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE
OF BONDS; APPOINTMENT OF BOND REGISTRAR AND CERTIFICATE REGISTRAR. The Issuer
shall cause to be kept at the Corporate Trust Office a Bond Register in which,
subject to such reasonable regulations as it may prescribe, the Bond Registrar
shall provide for the registration of Bonds and of transfers and exchanges of
Bonds as herein provided.
Subject to the restrictions and limitations set forth below, upon
surrender for registration of transfer of any Bond at the Corporate Trust
Office, the Issuer shall execute and the Bond Registrar shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Bonds in authorized initial Bond Principal Balances evidencing the same
aggregate Percentage Interests.
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Subject to the foregoing, at the option of the Bondholders, Bonds may
be exchanged for other Bonds of like tenor and in authorized initial Bond
Principal Balances evidencing the same aggregate Percentage Interests upon
surrender of the Bonds to be exchanged at the Corporate Trust Office of the Bond
Registrar. Whenever any Bonds are so surrendered for exchange, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver the Bonds which
the Bond holder making the exchange is entitled to receive. Each Bond presented
or surrendered for registration of transfer or exchange shall (if so required by
the Bond Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form reasonably satisfactory to the Bond Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing
with such signature guaranteed by a commercial bank or trust company located or
having a correspondent located in the city of New York. Bonds delivered upon any
such transfer or exchange will evidence the same obligations, and will be
entitled to the same rights and privileges, as the Bonds surrendered.
No service charge shall be made for any registration of transfer or
exchange of Bonds, but the Bond Registrar shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Bonds.
The Issuer hereby appoints the Indenture Trustee as (i) Certificate
Registrar to keep at its Corporate Trust Office a Certificate Register pursuant
to Section 3.09 of the Trust Agreement in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges thereof pursuant to
Section 3.05 of the Trust Agreement and (ii) Bond Registrar under this
Indenture. The Indenture Trustee hereby accepts such appointments.
Section 4.03. MUTILATED, DESTROYED, LOST OR STOLEN BONDS. If (i) any
mutilated Bond is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Bond, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer, the Bond Insurer and the
Indenture Trustee harmless, then, in the absence of notice to the Issuer, the
Bond Registrar or the Indenture Trustee that such Bond has been acquired by a
bona fide purchaser, and provided that the requirements of Section 8-405 of the
UCC are met, the Issuer shall execute, and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Bond, a replacement Bond; provided,
however, that if any such destroyed, lost or stolen Bond, but not a mutilated
Bond, shall have become or within seven days shall be due and payable, instead
of issuing a replacement Bond, the Issuer may pay such destroyed, lost or stolen
Xxxx when so due or payable without surrender thereof. If, after the delivery of
such replacement Bond or payment of a destroyed, lost or stolen Bond pursuant to
the proviso to the preceding sentence, a bona fide purchaser of the original
Bond in lieu of which such replacement Bond was issued presents for payment such
original Bond, the Issuer, the Bond Insurer and the Indenture Trustee shall be
entitled to recover such replacement Bond (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Bond from such
Person to whom such replacement Bond was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity
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provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer, the Bond Insurer or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Bond under this Section 4.03, the
Issuer may require the payment by the Holder of such Bond of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Bond issued pursuant to this Section 4.03 in
replacement of any mutilated, destroyed, lost or stolen Bond shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Bond shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Bonds duly issued hereunder.
The provisions of this Section 4.03 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Bonds.
Section 4.04. PERSONS DEEMED OWNERS. Prior to due presentment for
registration of transfer of any Bond, the Issuer, the Bond Insurer, the
Indenture Trustee and any agent of the Issuer, the Bond Insurer or the Indenture
Trustee may treat the Person in whose name any Bond is registered (as of the day
of determination) as the owner of such Bond for the purpose of receiving
payments of principal of and interest, if any, on such Bond and for all other
purposes whatsoever, whether or not such Bond be overdue, and neither the
Issuer, the Bond Insurer, the Indenture Trustee nor any agent of the Issuer, the
Bond Insurer or the Indenture Trustee shall be affected by notice to the
contrary.
Section 4.05. CANCELLATION. All Bonds surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Bonds previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the
Indenture Trustee. No Bonds shall be authenticated in lieu of or in exchange for
any Bonds cancelled as provided in this Section 4.05, except as expressly
permitted by this Indenture. All cancelled Bonds may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Request that they be destroyed or returned to it; provided, however, that such
Issuer Request is timely and the Bonds have not been previously disposed of by
the Indenture Trustee.
Section 4.06. BOOK-ENTRY BONDS. The Bonds, upon original issuance, will
be issued in the form of typewritten Bonds representing the Book-Entry Bonds, to
be delivered to The Depository Trust Company, the initial Depository, by, or on
behalf of, the Issuer. The Bonds shall initially be registered on the Bond
Register in the name of Cede & Co., the nominee of the initial Depository, and
no Beneficial Owner will receive a Definitive Bond representing such
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Beneficial Owner's interest in such Bond, except as provided in Section 4.08.
With respect to such Bonds, unless and until definitive, fully registered Bonds
(the "Definitive Bonds") have been issued to Beneficial Owners pursuant to
Section 4.08:
(i) the provisions of this Section 4.06 shall be in
full force and effect;
(ii) the Bond Registrar and the Indenture Trustee shall
be entitled to deal with the Depository for all purposes of this
Indenture (including the payment of principal of and interest on the
Bonds and the giving of instructions or directions hereunder) as the
sole holder of the Bonds, and shall have no obligation to the
Beneficial Owners of the Bonds;
(iii) to the extent that the provisions of this Section
4.06 conflict with any other provisions of this Indenture, the
provisions of this Section 4.06 shall control;
(iv) the rights of Beneficial Owners shall be exercised
only through the Depository and shall be limited to those established
by law and agreements between such Owners of Bonds and the Depository
and/or the Depository Participants. Unless and until Definitive Bonds
are issued pursuant to Section 4.08, the initial Depository will make
book-entry transfers among the Depository Participants and receive and
transmit payments of principal of and interest on the Bonds to such
Depository Participants; and
(v) whenever this Indenture requires or permits actions
to be taken based upon instructions or directions of Holders of Bonds
evidencing a specified percentage of the Bond Principal Balances of the
Bonds, the Depository shall be deemed to represent such percentage with
respect to the Bonds only to the extent that it has received
instructions to such effect from Beneficial Owners and/or Depository
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Bonds and has delivered
such instructions to the Indenture Trustee.
Section 4.07. NOTICES TO DEPOSITORY. Whenever a notice or other
communication to the Bond Holders is required under this Indenture, unless and
until Definitive Bonds shall have been issued to Beneficial Owners pursuant to
Section 4.08, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Bonds to the
Depository, and shall have no obligation to the Beneficial Owners.
Section 4.08. DEFINITIVE BONDS. If (i) the Indenture Trustee determines
that the Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Bonds and the Indenture Trustee is unable
to locate a qualified successor, (ii) the Indenture Trustee elects to terminate
the book-entry system through the Depository or (iii) after the occurrence of an
Event of Default, Beneficial Owners of Bonds representing beneficial interests
aggregating at least a majority of the Bond Principal Balances of the Bonds
advise the Depository in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Beneficial
Owners, then the Depository shall notify all Beneficial Owners and the Indenture
Trustee of the occurrence of any such event and of the availability of
Definitive Bonds to Beneficial Owners requesting the same. Upon surrender to the
Indenture Trustee of the
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typewritten Bonds representing the Book-Entry Bonds by the Depository,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Bonds in accordance with the
instructions of the Depository. None of the Issuer, the Bond Registrar or the
Indenture Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Bonds, the Indenture Trustee shall
recognize the Holders of the Definitive Bonds as Bondholders.
Section 4.09. TAX TREATMENT. The Issuer has entered into this
Indenture, and the Bonds will be issued, with the intention that, for federal,
state and local income, single business and franchise tax purposes, the Bonds
will qualify as indebtedness. The Issuer, by entering into this Indenture, and
each Bondholder, by its acceptance of its Bond (and each Beneficial Owner by its
acceptance of an interest in the applicable Book-Entry Bond), agree to treat the
Bonds for federal, state and local income, single business and franchise tax
purposes as indebtedness.
Section 4.10. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to the Bonds except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Bonds, (iii) rights of Bondholders (and the Bond
Insurer, as subrogee of the Bondholders) to receive payments of principal
thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.06, 3.09, 3.16, 3.18
and 3.19, (v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.07 and
the obligations of the Indenture Trustee under Section 4.11) and (vi) the rights
of Bondholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Bonds and shall release and deliver the Collateral to or upon the
order of the Issuer, when
(A) either
(1) all Bonds theretofore authenticated and delivered (other
than (i) Bonds that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 4.03 hereof and (ii) Bonds
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 3.03) have
been delivered to the Indenture Trustee for cancellation; or
(2) all Bonds not theretofore delivered to the Indenture
Trustee for cancellation
a. have become due and payable,
b. will become due and payable at the Final
Scheduled Payment Date within one year, or
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c. have been called for early redemption
pursuant to Section 8.07 hereof,
and the Issuer, in the case of a. or b. above, has irrevocably
deposited or caused to be irrevocably deposited with the Indenture
Trustee cash or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire indebtedness on such Bonds
then outstanding not theretofore delivered to the Indenture Trustee for
cancellation when due on the Final Scheduled Payment Date or other
final Payment Date and has delivered to the Indenture Trustee and the
Bond Insurer a verification report from a nationally recognized
accounting firm certifying that the amounts deposited with the
Indenture Trustee are sufficient to pay and discharge the entire
indebtedness of such Bonds, or, in the case of c. above, the Issuer
shall have complied with all requirements of Section 8.07 hereof;
(B) the Issuer has paid or caused to be paid all other sums
payable hereunder and under the Insurance Agreement by the Issuer as
evidenced by the written consent of the Bond Insurer; and
(C) the Issuer has delivered to the Indenture Trustee and the
Bond Insurer an Officer's Certificate and an Opinion of Counsel, each
meeting the applicable requirements of Section 10.01 hereof, each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied
with and, if the Opinion of Counsel relates to a deposit made in
connection with Section 4.10(A)(2)b. above, such opinion shall further
be to the effect that such deposit will constitute an "in-substance
defeasance" within the meaning of Revenue Ruling 85-42, 1985-1 C.B. 36,
and in accordance therewith, the Issuer will be the owner of the assets
deposited in trust for federal income tax purposes.
Section 4.11. APPLICATION OF TRUST MONEY. All monies deposited with the
Indenture Trustee pursuant to Section 4.10 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Bonds and this
Indenture, to the payment, either directly or through any Paying Agent or the
Issuer, Certificate Paying Agent as designee of the Issuer or the Bond Insurer,
as applicable, as the Indenture Trustee may determine, to the Holders of
Securities, of all sums due and to become due thereon for principal and interest
or otherwise; but such monies need not be segregated from other funds except to
the extent required herein or required by law.
Section 4.12. SUBROGATION AND COOPERATION. (a) The Issuer and the
Indenture Trustee acknowledge that (i) to the extent the Bond Insurer makes
payments under either Bond Insurance Policy on account of principal of or
interest on the Bonds, the Bond Insurer will be fully subrogated to the rights
of such Holders to receive such principal and interest from the Issuer, and (ii)
the Bond Insurer shall be paid such principal and interest but only from the
sources and in the manner provided herein and in the Insurance Agreement for the
payment of such principal and interest.
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The Indenture Trustee shall cooperate in all respects with any
reasonable request by the Bond Insurer for action to preserve or enforce the
Bond Insurer's rights or interest under this Indenture or the Insurance
Agreement, consistent with this Indenture and without limiting the rights of the
Bondholders as otherwise set forth in the Indenture, including, without
limitation, upon the occurrence and continuance of a default under the Insurance
Agreement, a request to take any one or more of the following actions:
(i) institute Proceedings for the collection of all
amounts then payable on the Bonds, or under this Indenture in respect
to the Bonds and all amounts payable under the Insurance Agreement,
enforce any judgment obtained and collect from the Issuer monies
adjudged due;
(ii) sell or cause to be sold the Trust Estate or any
portion thereof or rights or interest therein, at one or more public or
private Sales called and conducted in any manner permitted by law;
(iii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture; and
(iv) exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect and enforce the
rights and remedies of the Bond Insurer hereunder;
provided, however, action shall be taken pursuant to this Section 4.12 by the
Indenture Trustee to preserve the Bond Insurer's rights or interest under this
Agreement or the Insurance Agreement only to the extent such action is available
to the Bondholders or the Bond Insurer under other provisions of this Indenture.
Notwithstanding any provision of this Indenture to the contrary, so
long as no Bond Insurer Default exists, the Bond Insurer shall at all times be
treated as if it were the exclusive owner of all Bonds Outstanding for the
purposes of all approvals, consents, waivers and the institution of any action
and the direction of all remedies, and the Indenture Trustee shall act in
accordance with the directions of the Bond Insurer so long as it is indemnified
therefor to its reasonable satisfaction.
Section 4.13. REPAYMENT OF MONIES HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to the Bonds,
all monies then held by any Person other than the Indenture Trustee under the
provisions of this Indenture with respect to such Bonds shall, upon demand of
the Issuer, be paid to the Indenture Trustee to be held and applied according to
Section 3.05 and thereupon such Person shall be released from all further
liability with respect to such monies.
Section 4.14. TEMPORARY BONDS. Pending the preparation of any
Definitive Bonds, the Issuer may execute and upon its written direction, the
Indenture Trustee may authenticate and make available for delivery, temporary
Bonds that are printed, lithographed, typewritten,
26
photocopied or otherwise produced, in any denomination, substantially of the
tenor of the Definitive Bonds in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Bonds may determine, as evidenced by their execution of
such Bonds.
If temporary Bonds are issued, the Issuer will cause Definitive Bonds
to be prepared without unreasonable delay. After the preparation of the
Definitive Bonds, the temporary Bonds shall be exchangeable for Definitive Bonds
upon surrender of the temporary Bonds at the office or agency of the Indenture
Trustee, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Bonds, the Issuer shall execute and the Indenture Trustee
shall authenticate and make available for delivery, in exchange therefor,
Definitive Bonds of authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, such temporary Bonds shall in all respects
be entitled to the same benefits under this Indenture as Definitive Bonds.
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ARTICLE V
DEFAULT AND REMEDIES
Section 5.01. EVENTS OF DEFAULT. The Issuer shall deliver to the
Indenture Trustee and the Bond Insurer, within five days after learning of the
occurrence of an Event of Default, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default under clause (iii) of the definition of "Event
of Default", its status and what action the Issuer is taking or proposes to take
with respect thereto.
Section 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee at the written direction of the Bond Insurer (which such
written direction shall include a statement to the effect that such acceleration
is at the sole option of the Bond Insurer), or if a Bond Insurer Default exists
Holders of Bonds representing not less than a majority of the Bond Principal
Balances of all Bonds may declare the Bonds to be immediately due and payable,
by a notice in writing to the Issuer (and to the Indenture Trustee if given by
Bondholders), and upon any such declaration the unpaid Bond Principal Balance of
the Bonds, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity with
respect to an Event of Default has been made and before a judgment or decree for
payment of the money due has been obtained by the Indenture Trustee as
hereinafter in this Article V provided, the Bond Insurer, unless a Bond Insurer
Default exists, or the Holders of Bonds representing a majority of the Bond
Principal Balances of all Bonds if a Bond Insurer Default exists, by written
notice to the Issuer and the Indenture Trustee, may waive the related Event of
Default and rescind and annul such declaration and its consequences if:
(i) the Issuer or the Bond Insurer has paid or
deposited with the Indenture Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on the
Bonds and all other amounts that would then be due hereunder
or upon the Bonds if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; and
(ii) all Events of Default, other than the nonpayment of
the principal of the Bonds that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.12.
provided, however, the Bond Insurer, so long as no Bond Insurer Default exists,
may waive an Event of Default regardless of Section 5.02(i) above.
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No such rescission shall affect any subsequent default or impair any
right consequent thereto.
Section 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) The Issuer covenants that if (i) default is made in the payment of
any interest on any Bond when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment of
the principal of or any installment of the principal of any Bond when the same
becomes due and payable, the Issuer shall, upon demand of the Indenture Trustee,
at the direction of the Bond Insurer, so long as no Bond Insurer Default exists,
pay to the Indenture Trustee, for the benefit of the Holders of Bonds and the
Bond Insurer, the whole amount then due and payable on the Bonds for principal
and interest, with interest at the Bond Interest Rate upon the overdue
principal, and in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and
its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, and at the direction of the Bond Insurer, so long as no Bond Insurer
Default exists, subject to the provisions of Section 10.16 hereof may institute
a Proceeding for the collection of the sums so due and unpaid, and may prosecute
such Proceeding to judgment or final decree, and may enforce the same against
the Issuer or other obligor upon the Bonds and collect in the manner provided by
law out of the property of the Issuer or other obligor the Bonds, wherever
situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee, at the direction of the Bond Insurer, so long as no Bond Insurer
Default exists, subject to the provisions of Section 10.16 hereof may, as more
particularly provided in Section 5.04 hereof, in its discretion, proceed to
protect and enforce its rights and the rights of the Bondholders and the Bond
Insurer, by such appropriate Proceedings as the Indenture Trustee shall be
directed by the Bond Insurer, so long as no Bond Insurer Default exists, to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Bonds or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Bonds, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, at the direction of the Bond
Insurer, so long as no Bond Insurer Default exists, irrespective of whether the
principal of any Bonds shall then be due and payable as therein expressed or by
declaration or
29
otherwise and irrespective of whether the Indenture Trustee shall have made any
demand pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such
Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of the
Bonds and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith), the Bond Insurer and of the Bondholders
allowed in such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Bonds in any election
of a trustee, a standby trustee or Person performing similar functions
in any such Proceedings;
(iii) to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute
all amounts received with respect to the claims of the Bondholders, the
Bond Insurer and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee, the Bond Insurer or the Holders of Bonds
allowed in any judicial proceedings relative to the Issuer, its
creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Bondholders to make
payments to the Indenture Trustee, with the consent of the Bond Insurer so long
as no Bond Insurer Default exists, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Bondholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith and
all amounts due to the Bond Insurer.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Bondholder any plan of reorganization, arrangement, adjustment or
composition affecting the Bonds or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any Bond
holder in any such proceeding except, as aforesaid, to vote for the election of
a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Bonds, may be enforced by the Indenture Trustee without the
possession of any of the Bonds or
30
the production thereof in any trial or other Proceedings relative thereto, and
any such action or proceedings instituted by the Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and compensation
of the Indenture Trustee, each predecessor Indenture Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the Holders
of the Bonds, subject to Section 5.05 hereof.
(g) In any Proceedings brought by the Indenture Trustee with the
consent of the Bond Insurer so long as no Bond Insurer Default exists (and also
any Proceedings involving the interpretation of any provision of this Indenture
to which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Bonds, and it shall not be necessary to
make any Bondholder a party to any such Proceedings.
Section 5.04. REMEDIES; PRIORITIES. (a) If an Event of Default shall
have occurred and be continuing and if an acceleration has been declared and not
rescinded pursuant to Section 5.02 hereof, the Indenture Trustee subject to the
provisions of Section 10.16 hereof may with the consent of the Bond Insurer, and
at the direction of the Bond Insurer so long as no Bond Insurer Default exists
shall, do one or more of the following (subject to Section 5.05 hereof):
(i) institute Proceedings in its own name and as trustee
of an express trust for the collection of all amounts then payable on
the Bonds or under this Indenture with respect thereto, whether by
declaration or otherwise, and all amounts payable under the Insurance
Agreement, enforce any judgment obtained, and collect from the Issuer
and any other obligor upon such Bonds monies adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Trust Estate;
(iii) exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect and enforce the
rights and remedies of the Indenture Trustee, the Holders of the Bonds
and the Bond Insurer; and
(iv) sell the Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law;
provided, however, that so long as a Bond Insurer Default exists the Indenture
Trustee may not sell or otherwise liquidate the Trust Estate following an Event
of Default, unless (A) the Indenture Trustee obtains the consent of the Holders
of 100% of the aggregate Bond Principal Balance, (B) the proceeds of such sale
or liquidation distributable to the Holders of the Bonds are sufficient to
discharge in full all amounts then due and unpaid upon the Bonds for principal
and interest and to reimburse the Bond Insurer for any amounts drawn under the
related Bond Insurance Policy and any other amounts due to the Bond Insurer
under the Insurance Agreement or (C) the Indenture Trustee determines that the
Mortgage Loans will not continue to provide sufficient funds for the payment of
principal of and interest on the Bonds as they would have become due if the
Bonds had not been declared due and payable, and the Indenture Trustee obtains
the consent of the Holders
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of a majority of the aggregate Bond Principal Balance. In determining such
sufficiency or insufficiency with respect to clause (B) and (C), the Indenture
Trustee may, but need not, obtain and rely upon an opinion (obtained at the
expense of the Trust) of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose. Notwithstanding the foregoing,
so long as an Event of Servicer Termination has not occurred, any Sale of the
Trust Estate shall be made subject to the continued servicing of the Mortgage
Loans by the Master Servicer as provided in the Servicing Agreement.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order;
PROVIDED, HOWEVER, that any amounts representing payments from the Bond Insurer
shall only be used to pay interest and principal to the Bondholders pursuant to
clauses THIRD and FOURTH below:
FIRST: to the Indenture Trustee for amounts due under Section
6.07 hereof;
SECOND: to the Bond Insurer, provided no Bond Insurer Default
exists, with respect to any Premium Amount then due to the
extent unpaid pursuant to the Servicing Agreement;
THIRD: to the Bondholders for amounts due and unpaid on the
Bonds with respect to interest, ratably, without preference or
priority of any kind, according to the amounts due and payable
on the Bonds for interest (including any Unpaid Interest
Shortfalls);
FOURTH: to Bondholders for amounts due and unpaid on the Bonds
with respect to principal (including, but not limited to, any
related ARM Pool Principal Payment Amount or High LTV Pool
Principal Payment Amount), and to each Bondholder ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Bonds for principal, until the
Bond Principal Balance is reduced to zero;
FIFTH: to the payment of all amounts due and owing to the Bond
Insurer under the Insurance Agreement (including any Premium
Amount not paid pursuant to clause SECOND above);
SIXTH: to the Bondholders for amounts due and unpaid on the
Bonds with respect to any Unpaid Interest Shortfalls or
Carry-Forward Amounts, ratably, without preference or priority
of any kind, according to the amounts due and payable on the
Bonds with respect thereto, from amounts available in the
Trust Estate for the Bondholders; and
SEVENTH: to the payment of the remainder, if any to the
Certificate Paying Agent on behalf of the Issuer or to any
other person legally entitled thereto.
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The Indenture Trustee may fix a record date and payment date for any
payment to Bondholders pursuant to this Section 5.04. With respect to any
acceleration at the direction of the Bond Insurer, the first payment date after
the acceleration shall be the first Payment Date after the acceleration. At
least 15 days before such record date, the Indenture Trustee shall mail to each
Bondholder a notice that states the record date, the payment date and the amount
to be paid.
Section 5.05. OPTIONAL PRESERVATION OF THE TRUST ESTATE. If the Bonds
have been declared to be due and payable under Section 5.02 following an Event
of Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, with the consent of the Bond Insurer (which
consent shall not be required if a Bond Insurer default exists), and shall, at
the direction of the Bond Insurer so long as no Bond Insurer Default exists,
elect to take and maintain possession of the Trust Estate. It is the desire of
the parties hereto and the Bondholders that there be at all times sufficient
funds for the payment of principal of and interest on the Bonds and other
obligations of the Issuer including payment to the Bond Insurer, and the
Indenture Trustee, unless directed otherwise by the Bond Insurer, shall take
such desire into account when determining whether or not to take and maintain
possession of the Trust Estate. In determining whether to take and maintain
possession of the Trust Estate, the Indenture Trustee may, but need not, obtain
and rely upon an opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed action and as to
the sufficiency of the Trust Estate for such purpose.
Section 5.06. LIMITATION OF SUITS. No Holder of any Bond shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless and subject to the provisions of Section 10.16 hereof:
(i) such Holder has previously given written notice to
the Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Bond
Principal Balances of the Bonds have made a written request to the
Indenture Trustee to institute such Proceeding in respect of such Event
of Default in its own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the
Indenture Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt
of such notice of request and offer of indemnity has failed to
institute such Proceedings;
(v) no direction inconsistent with such written request
has been given to the Indenture Trustee during such 60-day period by
the Holders of a majority of the Bond Principal Balances of the Bonds;
and
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(vi) such Holder or Holders have the written consent of
the Bond Insurer, unless a Bond Insurer Default exists.
It is understood and intended that no one or more Holders of Bonds shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Bonds or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided.
Subject to the last paragraph of Section 5.11 herein, in the event the
Indenture Trustee shall receive conflicting or inconsistent requests and
indemnity from two or more groups of Holders of Bonds, each representing less
than a majority of the Bond Principal Balances of the Bonds, the Indenture
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
Section 5.07. UNCONDITIONAL RIGHTS OF BONDHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST. Notwithstanding any other provisions in this Indenture, the Holder
of any Bond shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Bond on or
after the respective due dates thereof expressed in such Bond or in this
Indenture and to institute suit for the enforcement of any such payment, and
such right shall not be impaired without the consent of such Holder.
Section 5.08. RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Bondholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee, the Bond Insurer or to such Bondholder, then and in every such case the
Issuer, the Indenture Trustee, the Bond Insurer and the Bondholders shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Indenture Trustee, the Bond Insurer and the Bondholders shall
continue as though no such Proceeding had been instituted.
Section 5.09. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Indenture Trustee, to the Bond Insurer or to
the Bondholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.10. DELAY OR OMISSION NOT A WAIVER. No delay or omission of
the Indenture Trustee, the Bond Insurer or any Holder of any Bond to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee, the Bond Insurer or to the Bondholders may be
34
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee, the Bond Insurer or by the Bondholders, as the case may be.
Section 5.11. CONTROL BY BOND INSURER. The Bond Insurer, unless a Bond
Insurer Default exists, or the Holders of a majority of the Bond Principal
Balances of Bonds, if a Bond Insurer Default exists, shall have the right
(subject to the provisions of Section 5.06) to direct the time, method and place
of conducting any Proceeding for any remedy available to the Indenture Trustee
with respect to the Bonds or exercising any trust or power conferred on the
Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any
rule of law or with this Indenture;
(ii) if a Bond Insurer Default exists, subject to the
express terms of Section 5.04, any direction to the Indenture Trustee
to sell or liquidate the Trust Estate shall be by Holders of Bonds
representing not less than 100% of the Bond Principal Balances of
Bonds;
(iii) if the conditions set forth in Section 5.05 hereof
have been satisfied and the Indenture Trustee, with the consent of the
Bond Insurer (which consent shall not be required if a Bond Insurer
Default exists), elects to retain the Trust Estate pursuant to such
Section, then any direction to the Indenture Trustee by Holders of
Bonds representing less than 100% of the Bond Principal Balances of
Bonds to sell or liquidate the Trust Estate shall be of no force and
effect; and
(iv) if a Bond Insurer Default exists, the Indenture
Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such
direction.
Notwithstanding the rights of Bondholders set forth in this Section, subject to
Section 6.01, the Indenture Trustee need not take any action that it determines
might involve it in liability or might materially adversely affect the rights of
any Bondholders not consenting to such action.
Section 5.12. WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Bonds as provided in Section 5.02 hereof,
the Bond Insurer, unless a Bond Insurer Default exists, or the Holders of Bonds
of not less than a majority of the Bond Principal Balances of the Bonds, if a
Bond Insurer Default exists, may waive any past Event of Default and its
consequences except an Event of Default (a) with respect to payment of principal
of or interest on any of the Bonds, (b) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Bond or (c) the waiver of which would materially and adversely affect the
interests of the Bond Insurer or modify its obligation under the related Bond
Insurance Policy. In the case of any such waiver, the Issuer, the Indenture
Trustee and the Holders of the Bonds shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereto.
35
Upon any such waiver, any Event of Default arising therefrom shall be
deemed to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereto.
Section 5.13. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Bond by such Xxxxxx's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Bondholder, or group of
Bondholders, in each case holding in the aggregate more than 10% of the Bond
Principal Balances of the Bonds or (c) any suit instituted by any Bondholder for
the enforcement of the payment of principal of or interest on any Bond on or
after the respective due dates expressed in such Bond and in this Indenture.
Section 5.14. WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.15. SALE OF TRUST ESTATE. (a) The power to effect any sale or
other disposition (a "Sale") of any portion of the Trust Estate pursuant to
Section 5.04 hereof is expressly subject to the provisions of Section 5.05
hereof and this Section 5.15. The power to effect any such Sale shall not be
exhausted by any one or more Sales as to any portion of the Trust Estate
remaining unsold, but shall continue unimpaired until the entire Trust Estate
shall have been sold or all amounts payable on the Bonds and under this
Indenture and under the Insurance Agreement shall have been paid. The Indenture
Trustee with the consent of the Bond Insurer (which consent shall not be
required if a Bond Insurer Default exists), may from time to time postpone any
public Sale by public announcement made at the time and place of such Sale. The
Indenture Trustee hereby expressly waives its right to any amount fixed by law
as compensation for any Sale.
(b) The Indenture Trustee shall not in any private Sale sell the Trust
Estate, or any portion thereof, unless
(1) the Bond Insurer, unless a Bond Insurer Default exists, or
the Holders of all Bonds if a Bond Insurer Default exists, consent to or direct
the Indenture Trustee to make, such Sale, or
36
(2) the proceeds of such Sale would be not less than the
entire amount which would be payable to the Bondholders under the Bonds and the
Bond Insurer in respect of amounts drawn under the related Bond Insurance Policy
and any other amounts due to the Bond Insurer under the Insurance Agreement, in
full payment thereof in accordance with Section 5.02 hereof, on the Payment Date
next succeeding the date of such Sale, or
(3) the Indenture Trustee determines with the consent of the
Bond Insurer, so long as no Bond Insurer Default exists, that the conditions for
retention of the Trust Estate set forth in Section 5.05 hereof cannot be
satisfied (in making any such determination, the Indenture Trustee may rely upon
an opinion of an Independent investment banking firm obtained and delivered as
provided in Section 5.05 hereof), and the Bond Insurer consents to such Sale, or
if a Bond Insurer Default exists, the Holders of Bonds representing at least
66-2/3% of the Bond Principal Balances of the Bonds consent to such Sale.
The purchase by the Indenture Trustee of all or any portion of the Trust Estate
at a private Sale shall not be deemed a Sale or other disposition thereof for
purposes of this Section 5.15(b).
(c) Unless the Bond Insurer, or if a Bond Insurer Default exists, the
Holders representing at least 66-2/3% of the Principal Balances of the Bonds
have otherwise consented or directed the Indenture Trustee, at any public Sale
of all or any portion of the Trust Estate at which a minimum bid equal to or
greater than the amount described in paragraph (2) of subsection (b) of this
Section 5.15 has not been established by the Indenture Trustee and no Person
bids an amount equal to or greater than such amount, the Indenture Trustee, as
trustee for the benefit of the Holders of the Bonds, shall bid an amount at
least $1.00 more than the highest other bid.
(d) In connection with a Sale of all or any portion of the Trust
Estate,
(1) any Holder or Holders of Bonds may bid for and purchase
the property offered for sale, and upon compliance with the terms of sale may
hold, retain and possess and dispose of such property, without further
accountability, and may, in paying the purchase money therefor, deliver any
Bonds or claims for interest thereon in lieu of cash up to the amount which
shall, upon distribution of the net proceeds of such sale, be payable thereon,
and such Bonds, in case the amounts so payable thereon shall be less than the
amount due thereon, shall be returned to the Holders thereof after being
appropriately stamped to show such partial payment;
(2) the Indenture Trustee, with the consent of the Bond
Insurer so long as no Bond Insurer Default exists, may bid for and acquire the
property offered for Sale in connection with any Sale thereof, and, subject to
any requirements of, and to the extent permitted by, applicable law in
connection therewith, may purchase all or any portion of the Trust Estate in a
private sale, and, in lieu of paying cash therefor, may make settlement for the
purchase price by crediting the gross Sale price against the sum of (A) the
amount which would be distributable to the Holders of the Bonds and Holders of
Certificates and amounts owing to the Bond Insurer as a result of such Sale in
accordance with Section 5.04(b) hereof on the Payment Date next succeeding the
date of such Sale and (B) the expenses of the Sale and of any Proceedings in
connection therewith which are reimbursable to it, without being required to
produce the Bonds
37
in order to complete any such Sale or in order for the net Sale price to be
credited against such Bonds, and any property so acquired by the Indenture
Trustee shall be held and dealt with by it in accordance with the provisions of
this Indenture;
(3) the Indenture Trustee shall execute and deliver an
appropriate instrument of conveyance, prepared by the Issuer and satisfactory to
the Indenture Trustee, transferring its interest in any portion of the Trust
Estate in connection with a Sale thereof;
(4) the Indenture Trustee is hereby irrevocably appointed the
agent and attorney-in-fact of the Issuer to transfer and convey its interest in
any portion of the Trust Estate in connection with a Sale thereof, and to take
all action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be bound
to ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
Section 5.16. ACTION ON BONDS. The Indenture Trustee's right to seek
and recover judgment on the Bonds or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Bondholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Trust Estate
or upon any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.04(b) hereof.
Section 5.17. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS. (a)
Promptly following a request from the Indenture Trustee to do so, the Issuer in
its capacity as holder of the Mortgage Loans, shall take all such lawful action
as the Indenture Trustee or the Bond Insurer may request to cause the Issuer to
compel or secure the performance and observance by the Seller and the Master
Servicer, as applicable, of each of their obligations to the Issuer under or in
connection with the Mortgage Loan Sale and Contribution Agreement and the
Servicing Agreement, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Mortgage Loan Sale and Contribution Agreement and the Servicing Agreement to the
extent and in the manner directed by the Indenture Trustee, with the consent of
the Bond Insurer so long as no Bond Insurer Default exists, as pledgee of the
Mortgage Loans, including the transmission of notices of default on the part of
the Seller or the Master Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Master Servicer of each of their obligations under the Mortgage
Loan Sale and Contribution Agreement and the Servicing Agreement. So long as no
Bond Insurer Default exists, the Bond Insurer shall have the right to approve or
reject any proposed successor to the Master Servicer (other than the Indenture
Trustee) under the Servicing Agreement.
(b) The Indenture Trustee, as pledgee of the Mortgage Loans, subject to
the rights of the Bond Insurer under this Agreement and the Servicing Agreement
may, and at the direction (which direction shall be in writing or by telephone
(confirmed in writing promptly thereafter))
38
of the Bond Insurer or if a Bond Insurer Default exists, Holders of 66-2/3% of
the Bond Principal Balances of the Bonds, shall exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Seller or the Master
Servicer under or in connection with the Mortgage Loan Sale and Contribution
Agreement and the Servicing Agreement, including the right or power to take any
action to compel or secure performance or observance by the Seller or the Master
Servicer, as the case may be, of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Mortgage Loan Sale and Contribution Agreement and
the Servicing Agreement, as the case may be, and any right of the Issuer to take
such action shall not be suspended.
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ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. DUTIES OF INDENTURE TRUSTEE. (a) If an Event of Default
has occurred and is continuing, the Indenture Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into
this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; however, the
Indenture Trustee shall examine the certificates and opinions to
determine whether or not they conform on their face to the requirements
of this Indenture to the extent specified herein.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 6.01;
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless it
is proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it (A) from Bondholders, which
they are entitled to give under any of the Basic Documents or (B) from
the Bond Insurer, which it is entitled to give under any of the Basic
Documents.
(d) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other trust funds except to the extent required by law or the terms of this
Indenture or the Trust
Agreement.
(f) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
40
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section
and to the provisions of the TIA.
(h) The Indenture Trustee shall act in accordance with Sections 6.03
and 6.04 of the Servicing Agreement and shall act as successor to the Master
Servicer in accordance with Section
6.02 of the Servicing Agreement.
Section 6.02. RIGHTS OF INDENTURE TRUSTEE. (a) The Indenture Trustee
may rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Indenture Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on an Officer's Certificate or Opinion of
Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee and shall not be liable for the
action or inaction of any such person appointed by it with due
care.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Bonds shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
Section 6.03. INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Bonds and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Bond Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Indenture Trustee must comply with Sections 6.11 and 6.12 hereof.
Section 6.04. INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Bonds, it shall not be accountable for the
Issuer's use of the proceeds from the Bonds, and it shall not be responsible for
any statement of the Issuer or any other Person in the Indenture or in any
document issued in connection with the sale of the Bonds or in the Bonds other
than the Indenture Trustee's certificate of authentication.
41
Section 6.05. NOTICE OF EVENT OF DEFAULT. If an Event of Default occurs
and is continuing and if it is actually known to a Responsible Officer of the
Indenture Trustee, the Indenture Trustee shall give prompt notice thereof to the
Bond Insurer. The Trustee shall mail to each Bondholder notice of the Event of
Default within 10 days after a Responsible Officer of the Indenture Trustee
obtains actual knowledge thereof, unless such Event of Default shall have been
waived or cured. Except in the case of an Event of Default in payment of
principal of or interest on any Bond, the Indenture Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Bondholders.
Section 6.06. REPORTS BY INDENTURE TRUSTEE TO HOLDERS AND TAX
ADMINISTRATION. The Indenture Trustee shall deliver to each Bondholder such
information as may be required to enable such holder to prepare its federal and
state income tax returns. In addition, upon the Issuer's written request, the
Indenture Trustee shall promptly furnish information reasonably requested by the
Issuer that is reasonably available to the Indenture Trustee to enable the
Issuer to perform its federal and state income tax reporting obligations.
The Indenture Trustee shall prepare and file (or cause to be prepared
and filed), on behalf of the Owner Trustee, all reports of the Issuer as are
necessary for preparation of tax returns and information reports as provided in
Section 5.03 of the Trust Agreement.
For purposes of preparing Form 1099 and any other information report
requiring the provision of a federal employer identification number (EIN), so
long as the Trust is disregarded for federal income tax purposes the Indenture
Trustee shall use the EIN of IMPAC Mortgage Holdings, Inc. In the event the
Trust is to be treated as a partnership or the certificates are in any event
transferred to another person, the Master Servicer shall provide the Indenture
Trustee with the applicable EIN.
Section 6.07. COMPENSATION AND INDEMNITY. The Issuer shall pay to the
Indenture Trustee on each Payment Date reasonable compensation for its services.
The amount of the Indenture Trustee Fee shall be paid by the Master Servicer to
the Indenture Trustee on each Payment Date pursuant to Section 3.07(a)(x) of the
Servicing Agreement and all amounts owing to the Indenture Trustee hereunder
(including amounts owing from the Issuer for indemnification and otherwise) in
excess of such amount shall be paid solely as provided in Section 3.05(b)(viii),
Section 3.05(c)(viii) and Section 5.04(b) hereof. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to compensation for its services. Such expenses shall
include reasonable compensation and expenses, disbursements and advances of the
Indenture Trustee's agents, counsel, accountants and experts. The Issuer shall
indemnify the Indenture Trustee and any director, officer, employee or agent of
the Indenture Trustee or any Person that "controls" the Trustee within the
meaning of the Securities Act and the Exchange Act against any and all loss,
liability or expense (including attorneys' fees) incurred by it in connection
with the administration of this Trust and the performance of its duties
hereunder. The Indenture Trustee shall notify the Issuer promptly of any claim
for which it may seek indemnity. Failure by the Indenture Trustee
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to so notify the Issuer shall not relieve the Issuer of its obligations
hereunder. The Issuer shall defend any such claim, and the Indenture Trustee may
have separate counsel and the Issuer shall pay the fees and expenses of such
counsel. The Issuer is not obligated to reimburse any expense or indemnify
against any loss, liability or expense incurred by the Indenture Trustee through
the Indenture Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section 6.07 shall survive the discharge of this Indenture and the
termination or resignation of the Indenture Trustee. When the Indenture Trustee
incurs expenses after the occurrence of an Event of Default with respect to the
Issuer, the expenses are intended to constitute expenses of administration under
Title 11 of the United States Code or any other applicable federal or state
bankruptcy, insolvency or similar law.
Section 6.08. REPLACEMENT OF INDENTURE TRUSTEE. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee
may resign at any time by so notifying the Issuer and the Bond Insurer. The Bond
Insurer or, if a Bond Insurer Default exists, the Holders of a majority of Bond
Principal Balances of the Bonds may remove the Indenture Trustee by so notifying
the Indenture Trustee and the Bond Insurer and may appoint a successor Indenture
Trustee. The Issuer shall, with the consent of the Bond Insurer so long as no
Bond Insurer Default exists, remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section
6.11 hereof;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of
the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable
of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of the Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall, with the consent of the Bond Insurer so long as no Bond Insurer
Default exists, promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, to the Bond Insurer and to the
Issuer. Thereupon, the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to
Bondholders. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
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If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer, the Bond Insurer or the Holders of a majority of
Bond Principal Balances of the Bonds may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
No termination of the Indenture Trustee without cause will be effective
unless the costs and expenses of such Indenture Trustee have been reimbursed in
connection with such removal.
Section 6.09. SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation, without any further act, shall be the successor Indenture Trustee;
provided, that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.11 hereof. The Indenture Trustee shall
provide the Rating Agencies and the Bond Insurer with prior written notice of
any such transaction.
If at the time such successor or successors by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture and any of the Bonds shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee and deliver such Bonds so
authenticated; and if at that time any of the Bonds shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Bonds either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is in the Bonds or in this Indenture provided
that the certificate of the Indenture Trustee shall have.
Section 6.10. APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE
TRUSTEE. (a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meet ing any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Bondholders and the Bond Insurer, such title to the Trust Estate, or any part
hereof, and, subject to the other provisions of this Section, such powers,
duties, obli gations, rights and trusts as the Indenture Trustee or the Bond
Insurer may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 6.11 hereof and notice to the Bond Insurer but not to the
Bondholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.08 hereof.
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(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Indenture Trustee shall be conferred or imposed
upon and exercised or performed by the Indenture Trustee and such
separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this 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 Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11. ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee
shall at all times satisfy the requirements of TIA ss. 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and it or its
parent shall have a long-term debt rating of Baa3 or better by Xxxxx'x and BBB
or better by Standard & Poor's. The Indenture Trustee shall comply with TIA ss.
310(b), including the optional provision permitted by the second sentence of TIA
ss. 310(b)(9); provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures
45
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA ss. 310(b)(1) are met.
Section 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). An Indenture Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
Section 6.13. REPRESENTATIONS AND WARRANTIES. The Indenture Trustee
hereby represents that:
(i) The Indenture Trustee is duly organized and validly
existing as a national banking association in good standing under the
laws of the United States with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted;
(ii) The Indenture Trustee has the power and authority to
execute and deliver this Indenture and to carry out its terms; and the
execution, delivery and performance of this Indenture have been duly
authorized by the Indenture Trustee by all necessary corporate action;
(iii) The consummation of the transactions contemplated by
this Indenture and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the organizational documents of the Indenture Trustee or any agreement
or other instrument to which the Indenture Trustee is a party or by
which it is bound; and
(iv) To the Indenture Trustee's knowledge, there are no
proceedings or investigations pending or threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Indenture Trustee or its
properties: (A) asserting the invalidity of this Indenture (B) seeking
to prevent the consummation of any of the transactions contemplated by
this Indenture or (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Indenture
Trustee of its obligations under, or the validity or enforceability of,
this Indenture.
Section 6.14. DIRECTIONS TO INDENTURE TRUSTEE. The Indenture Trustee is
hereby directed:
(a) to accept the pledge of the Mortgage Loans and hold the assets of
the Owner Trust Estate in trust for the Bondholders and the Bond Insurer;
(b) to authenticate and deliver the Bonds substantially in the form
prescribed by Exhibits A-1 and A-2 in accordance with the terms of this
Indenture; and
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(c) to take all other actions as shall be required to be taken by the
terms of this Indenture.
Section 6.15. THE AGENTS. The provisions of this Indenture relating to
the limitations of the Indenture Trustee's liability and to its indemnity shall
inure also to the Paying Agent and Bond Registrar.
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ARTICLE VII
BONDHOLDERS' LISTS AND REPORTS
Section 7.01. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES
OF BONDHOLDERS. The Issuer will furnish or cause to be furnished to the
Indenture Trustee (a) not more than five days after each Record Date, a list, in
such form as the Indenture Trustee may reasonably require, of the names and
addresses of the Holders of Bonds as of such Record Date, (b) at such other
times as the Indenture Trustee and the Bond Insurer may request in writing,
within 30 days after receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 10 days prior to the time
such list is furnished; provided, however, that so long as the Indenture Trustee
is the Bond Registrar, no such list shall be required to be furnished to the
Indenture Trustee.
Section 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
BONDHOLDERS. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Bonds
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 hereof and the names and addresses of Holders of Bonds received
by the Indenture Trustee in its capacity as Bond Registrar. The Indenture
Trustee may destroy any list furnished to it as provided in such Section 7.01
upon receipt of a new list so furnished.
(b) Bondholders may communicate pursuant to TIA ss. 312(b) with other
Bondholders with respect to their rights under this Indenture or under the
Bonds.
(c) The Issuer, the Indenture Trustee and the Bond Registrar shall have
the protection of TIA ss. 312(c).
Section 7.03. REPORTS OF ISSUER. (a)(i) The Indenture Trustee shall
file with the Commission on behalf of the Issuer, with a copy to the Issuer
within 15 days before the Issuer is required to file the same with the
Commission, the annual reports and the information, documents and other reports
(or such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) that the Issuer may be required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act and, on
behalf of the Issuer, to eliminate the reporting requirement through a filing
pursuant to Section 15(d) of the Exchange Act;
(ii) The Indenture Trustee shall file with the
Commission, on behalf of the Issuer, in accordance with rules and
regulations prescribed from time to time by the Commission such
additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) The Indenture Trustee shall supply (and the
Indenture Trustee shall transmit by mail to all Bondholders described
in TIA ss. 313(c)) such summaries of any information,
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documents and reports required to be filed by the Issuer pursuant to
clauses (i) and (ii) of this Section 7.03(a) and by rules and
regulations prescribed from time to time by the Commission.
A copy of the filings pursuant to Section 7.03(a)(i) through (iii) above shall
be delivered by the Indenture Trustee to the Bond Insurer. In respect of the
foregoing, the only filings required to made by the Indenture Trustee with the
Commission shall be Distribution Date statements to Bondholders (filed pursuant
to Section 13) and any delisting filings (which filings the Indenture Trustee is
hereby directed to make at its discretion) in respect of Section 15(d) of the
Exchange Act. All other filings shall be made by the Issuer.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 7.04. REPORTS BY INDENTURE TRUSTEE. If required by TIA ss.
313(a), within 60 days after each June 26 beginning with June 26, 1999, the
Indenture Trustee shall mail to each Bondholder as required by TIA ss. 313(c)
and the Bond Insurer a brief report dated as of such date that complies with TIA
ss. 313(a). The Indenture Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Bondholders shall
be filed by the Indenture Trustee with the Commission via XXXXX.
Section 7.05. STATEMENTS TO BONDHOLDERS. (a) Based solely upon the
Determination Date Report, upon which the Indenture Trustee may conclusively
rely, with respect to each Payment Date, the Indenture Trustee shall deliver to
each Certificateholder, Bondholder, the Bond Insurer, the Depositor, the Owner
Trustee, the Certificate Paying Agent and each Rating Agency, a statement
setting forth the following information as to each Class of Bonds, to the extent
appli cable:
(i) the aggregate amount of collections with respect to
the ARM Loans and the High LTV Loans;
(ii) the ARM Pool Available Funds, the High LTV Pool
Available Funds, the ARM Pool Net Monthly Excess Cashflow and the High
LTV Pool Net Monthly Excess Cashflow payable to the Bondholders for
such Payment Date, the ARM Pool Basis Risk Shortfall Carry-Forward
Amount on the Class A-1 Bonds and the High LTV Pool Basis Risk
Shortfall Carry-Forward Amount on the Class A-2 Bonds for such Payment
Date and the aggregate Unpaid Interest Shortfall on the Class A-1 Bonds
and Class A-2 Bonds for all prior Payment Dates;
(iii) (a) the amount of such distribution to the Holders of
such Class applied to reduce the Bond Principal Balance thereof, and
(b) the aggregate amount included therein representing Principal
Prepayments;
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(iv) the Insured Amounts, if any, paid by the Bond Insurer
under the related Bond Insurance Policy for such Payment Date and the
aggregate Insured Amounts for all prior Payment Dates paid by the Bond
Insurer under the related Bond Insurance Policy and not yet reimbursed;
(v) the amount of such distribution to Holders of such
Class of Bonds allocable to interest;
(vi) the amount of such distribution to the Trust
Certificates;
(vii) if the distribution to the Holders of such Class of
Bonds is less than the full amount that would be distributable to such
Holders if there were sufficient funds available
therefor, the amount of the shortfall;
(viii) the number and the aggregate Principal Balance of the
Mortgage Loans after giving effect to the distribution of principal on
such Payment Date;
(ix) the aggregate Bond Principal Balance of each Class of
the Bonds, after giving effect to the amounts distributed on such
Payment Date, separately identifying any reduction thereof due to
Realized Losses other than pursuant to an actual distribution of
principal and the aggregate Bond Principal Balance of all of the Bonds
after giving effect to the distribution of principal on such Payment
Date;
(x) the number and aggregate Principal Balances of
Mortgage Loans (a) as to which the Monthly Payment is delinquent for
30-59 days, 60-89 days, 90 or more days, respectively, (b) in
foreclosure and (c) that have become REO Property, in each case as of
the end of the preceding Due Period; PROVIDED, HOWEVER, that such
information will not be provided on the statements relating to the
first Payment Date;
(xi) the ARM Pool Cap Contract Payment Amount and the
High LTV Pool Cap Contract Payment Amount;
(xii) the ARM Pool Required Overcollateralization Amount,
ARM Pool Overcollateralization Amount, ARM Pool Net Monthly Excess
Cashflow, ARM Pool Excess Overcollateralization Amount, ARM Pool
Overcollateralization Increase Amount, High LTV Pool Required
Overcollateralization Amount, High LTV Pool Overcollateralization
Amount, High LTV Pool Net Monthly Excess Cashflow, High LTV Pool Excess
Overcollateralization Amount and High LTV Pool Overcollateralization
Increase Amount, if any, in each case as the end of the related Payment
Date;
(xiii) the amount of any Advances and Compensating
Interest payments;
(xiv) the amount of any ARM Pool Reserve Fund Addition,
High LTV Pool Reserve Fund Addition, Reserve Fund Release Amount or
Reserve Fund Certificate Payment Amount;
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(xv) the aggregate Realized Losses with respect to the
related Payment Date and cumulative Realized Losses since the Closing
Date;
(xvi) the number and aggregate Principal Balance of
Mortgage Loans repurchased pursuant to the Mortgage Loan Sale and
Contribution Agreement for the related Payment Date and cumulatively
since the Closing Date;
(xvii) the Cumulative Loss Percentage, Delinquency
Percentage and Rolling Delinquency Percentage for such Payment Date;
(xviii) the book value of any REO Property;
(xix) the amount of any Prepayment Interest Shortfalls
or Relief Act Shortfalls for such Payment Date; and
(xx) the aggregate Principal Balance of Mortgage Loans
purchased pursuant to Section 3.18 of the Servicing Agreement for the
related Payment Date and cumulatively since the Closing Date.
Items (iii), (v) and (vi) above shall be presented on the basis of a
Bond having a $1,000 denomination. In addition, by January 31 of each calendar
year following any year during which the Bonds are outstanding, the Indenture
Trustee shall furnish a report to each Bondholder of record if so requested in
writing at any time during each calendar year as to the aggregate of amounts
reported pursuant to (iii), (iv), (vi) and (xii) with respect to the Bonds for
such calendar year.
The initial Indenture Trustee may make available information regarding
the Mortgage Loans at its website at xxx.xxxxxx.xxx or its electronic bulletin
board service at (000) 000-0000 or such other mechanism as the Indenture Trustee
may have in place from time to time.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. COLLECTION OF MONEY. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
Section 8.02. TRUST ACCOUNTS. (a) On or prior to the Closing Date, the
Issuer shall cause the Indenture Trustee to establish and maintain, in the name
of the Indenture Trustee, for the benefit of the Bondholders and the Bond
Insurer, the Payment Account as provided in Section 3.01 hereof.
(b) All monies deposited from time to time in the Payment Account and
all investments made with such monies including all income or other gain from
such investments and all deposits therein pursuant to this Indenture are for the
benefit of the Bondholders and the Bond Insurer..
On each Payment Date, the Indenture Trustee shall distribute all
amounts remaining on deposit in the Payment Account, after payment to the
Indenture Trustee of the Indenture Trustee Fee, to the Bondholders in respect of
the Bonds and to such other persons in the order of priority set forth in
Section 3.05 hereof (except as otherwise provided in Section 5.04(b) hereof).
The Indenture Trustee shall invest any funds in the Payment Account in
Eligible Investments, as directed by the Master Servicer, maturing no later than
the Business Day preceding each Payment Date and such Eligible Investments shall
not be sold or disposed of prior to their maturity. In the absence of such
direction, the Indenture Trustee shall invest the funds in the Payment Account
in money market funds as further described in clause (vii) of the definition of
Eligible Investments. In no event shall the Indenture Trustee have any liability
for such investments and any losses thereon.
Section 8.03. OFFICER'S CERTIFICATE. The Indenture Trustee shall
receive at least seven Business Days' notice when requested by the Issuer to
take any action pursuant to Section 8.05(a) hereof, accompanied by copies of any
instruments to be executed, and the Indenture Trustee shall also require, as a
condition to such action, an Officer's Certificate, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with.
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Section 8.04. TERMINATION UPON DISTRIBUTION TO BONDHOLDERS. This
Indenture and the respective obligations and responsibilities of the Issuer and
the Indenture Trustee created hereby shall terminate upon the distribution to
Bondholders, the Bond Insurer, the Certificate Paying Agent on behalf of the
Certificateholders and the Indenture Trustee of all amounts required to be
distributed pursuant to Article III; provided, however, that in no event shall
the trust created here by continue beyond the expiration of 21 years from the
death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Section 8.05. RELEASE OF TRUST ESTATE. (a) Subject to the payment of
its fees and expenses, the Indenture Trustee may, and when required by the
provisions of this Indenture shall, execute instruments delivered to it and
satisfactory to it to release property from the lien of this Indenture, or
convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Indenture Trustee as
provided in Article VIII hereunder shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent,
or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as (i) there are no Bonds
Outstanding, (ii) all sums due to the Indenture Trustee pursuant to this
Indenture have been paid and (iii) all sums due to the Bond Insurer have been
paid, release any remaining portion of the Trust Estate that
secured the Bonds from the lien of this Indenture.
(c) The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.05 only upon receipt of a request from the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel stating
that all applicable requirements have been satisfied, and a letter from the Bond
Insurer stating that the Bond Insurer has no objection to such request from the
Issuer.
Section 8.06. SURRENDER OF BONDS UPON FINAL PAYMENT. By acceptance of
any Xxxx, the Holder thereof agrees to surrender such Xxxx to the Indenture
Trustee promptly, prior to such Bondholder's receipt of the final payment
thereon.
Section 8.07. OPTIONAL REDEMPTION OF THE BONDS. (a) The Issuer shall
have the option to redeem the Bonds in whole, but not in part, on any Payment
Date on or after the earlier of (i) the Payment Date on which the aggregate
Principal Balance of the Mortgage Loans is less than or equal to 25% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date or (ii)
the Payment Date occurring in March 2006. The aggregate redemption price for the
Bonds, as evidenced by an Officer's Certificate of the Master Servicer addressed
to the Indenture Trustee attesting to the accuracy and detailing the steps of
such calculation, will be equal to the unpaid Bond Principal Balance of the
Bonds as of the Payment Date on which the proposed redemption will take place in
accordance with the foregoing, together with accrued and unpaid interest thereon
at the Bond Interest Rate through such Payment Date (including any Unpaid
Interest Shortfalls and Carry-Forward Amounts), plus an amount sufficient to pay
in full all amounts owing to the Bond Insurer and the Indenture Trustee under
this Indenture and the Insurance Agreement (which
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amounts shall be specified in writing upon request of the Issuer by the
Indenture Trustee and the Bond Insurer).
(b) In order to exercise the foregoing option, the Issuer shall, not
less than 15 days prior to the proposed Payment Date on which such redemption is
to be made, deposit the aggregate redemption price specified in (a) above with
the Indenture Trustee, and shall provide written notice of its exercise of such
option to the Indenture Trustee, the Bond Insurer, the Owner Trustee and the
Master Servicer. Following receipt of the notice and the aggregate redemption
price, calculated as specified in Section 8.07(a) hereof, pursuant to the
foregoing, the Indenture Trustee shall provide notice to the Bondholders of the
final payment on the Bonds and shall apply such funds to make final payments of
principal and interest on the Bonds in accordance with Section 3.05(b) and
3.05(c) hereof, and this Indenture shall be discharged subject to the provisions
of Section 4.10 hereof. If for any reason the amount deposited by the Issuer is
not sufficient to make such redemption or such redemption cannot be completed
for any reason, the amount so deposited by the Issuer with the Indenture Trustee
shall be immediately returned to the Issuer in full and shall not be used for
any other purpose or be deemed to be part of the Trust Estate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF BONDHOLDERS.
(a) Without the consent of the Holders of any Bonds but with the prior written
consent of the Bond Insurer and prior notice to the Rating Agencies and the Bond
Insurer, the Issuer and the Indenture Trustee, when authorized by an Issuer
Request, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the TIA
as in force at the date of the execution thereof), in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture, or better
to assure, convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this Indenture, or
to subject to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Bonds contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Bonds, or to surrender any right or power
herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture;
(vi) to make any other provisions with respect to
matters or questions arising under this Indenture or in any
supplemental indenture; provided, that such action shall not materially
and adversely affect the interests of the Holders of the Bonds;
(vii) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Bonds
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI hereof; or
(viii) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA;
55
provided, however, that no such indenture supplements shall be entered into
unless the Indenture Trustee shall have received an Opinion of Counsel that (i)
such indenture supplement is permitted hereunder and (ii) entering into such
indenture supplement will not result in a "substantial modification" of the
Bonds under Treasury Regulation Section 1.1001.3 or adversely affect the status
of the Bonds as indebtedness for federal income tax purposes.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Request, may, also without the consent of any of the Holders of the Bonds but
with the prior written consent of the Bond Insurer and prior notice to the
Rating Agencies and the Bond Insurer, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Bonds under this
Indenture; provided, however, that such action as evidenced by an Opinion of
Counsel, (i) is permitted by this Indenture, and shall not (ii) adversely affect
in any material respect the interests of any Bondholder or (iii) if 100% of the
Certificates are not owned by IMH Assets Corp., cause the Issuer to be subject
to an entity level tax for federal income tax purposes.
Section 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF BONDHOLDERS. The
Issuer and the Indenture Trustee, when authorized by an Issuer Request, also
may, with prior notice to the Rating Agencies and, with the prior written
consent of the Bond Insurer and with the consent of the Holders of not less than
a majority of the Bond Principal Balances of the Bonds affected thereby, by Act
(as defined in Section 10.03 hereof) of such Holders delivered to the Issuer and
the Indenture Trustee, enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Bonds under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Bond affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Bond, or reduce the principal amount
thereof or the interest rate thereon, change the provisions of this
Indenture relating to the application of collections on, or the
proceeds of the sale of, the Trust Estate to payment of principal of or
interest on the Bonds, or change any place of payment where, or the
coin or currency in which, any Bond or the interest thereon is payable,
or impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any
such amount due on the Bonds on or after the respective due dates
thereof;
(ii) reduce the percentage of the Bond Principal
Balances of the Bonds, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of
which is required for any waiver of compliance with certain
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provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to
the definition of the term "Outstanding" or modify or alter the
exception in the definition of the term "Holder";
(iv) reduce the percentage of the Bond Principal
Balances of the Bonds required to direct the Indenture Trustee to
direct the Issuer to sell or liquidate the Trust Estate pursuant to
Section 5.04 hereof;
(v) modify any provision of this Section 9.02 except to
increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or the Basic Documents cannot
be modified or waived without the consent of the Holder of each Bond
affected thereby;
(vi) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the amount of any payment
of interest or principal due on any Bond on any Payment Date (including
the calculation of any of the individual components of such
calculation); or
(vii) permit the creation of any lien ranking prior to
or on a parity with the lien of this Indenture with respect to any part
of the Trust Estate or, except as otherwise permitted or contemplated
herein, terminate the lien of this Indenture on any property at any
time subject hereto or deprive the Holder of any Bond of the security
provided by the lien of this Indenture; and provided, further, that
such action shall not, as evidenced by an Opinion of Counsel, cause the
Issuer (if 100% of the Certificates are not owned by IMH Assets Corp.)
to be subject to an entity level tax.
The Indenture Trustee may, with the consent of the Bond Insurer, so
long as no Bond Insurer Default exists, in its discretion determine whether or
not any Bonds would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Bonds, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
It shall not be necessary for any Act of Bondholders under this Section
9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section 9.02, the Indenture Trustee
shall mail to the Holders of the Bonds to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
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Section 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02 hereof, shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Indenture Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
that affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
Section 9.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
with respect to the Bonds affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Holders of the Bonds
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the require ments of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
Section 9.06. REFERENCE IN BONDS TO SUPPLEMENTAL INDENTURES. Bonds
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Inden ture
Trustee shall so determine, new Bonds so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Bonds.
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ARTICLE X
MISCELLANEOUS
Section 10.01. COMPLIANCE CERTIFICATES AND OPINIONS, ETC. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee and to the Bond Insurer (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such
certificate or opinion has read or has caused to be read such covenant
or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation as
is necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
(4) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with; and
(5) if the signatory of such certificate or opinion
is required to be Independent, the statement required by the definition
of the term "Independent".
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 10.01(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee and the Bond
Insurer an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days prior to
such deposit) to the Issuer of the Collateral or other property or securities to
be so deposited and a report from a nationally recognized accounting firm
verifying such value.
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(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee and the Bond Insurer an Officer's Certificate certifying
or stating the opinion of any signer thereof as to the matters described in
clause (i) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate from a nationally recognized accounting firm as to the
same matters, if the fair value of the securities to be so deposited and of all
other such securities made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this clause (ii), is 10%
or more of the Bond Principal Balances of the Bonds, but such a certificate need
not be furnished with respect to any securities so deposited, if the fair value
thereof as set forth in the related Officer's Certificate is less than $25,000
or less than one percent of the Bond Principal Balances of the Bonds.
(iii) Whenever any property or securities are to be
released from the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee and the Bond Insurer an Officer's Certificate certifying or
stating the opinion of each person signing such certificate as to the fair value
(within 90 days prior to such release) of the property or securities proposed to
be released and stating that in the opinion of such person the proposed release
will not impair the security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish to
the Indenture Trustee and the Bond Insurer an Officer's Certificate certifying
or stating the opinion of any signer thereof as to the matters described in
clause (iii) above, the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the property
or securities and of all other property or securities released from the lien of
this Indenture since the commencement of the then-current calendar year, as set
forth in the certificates required by clause (iii) above and this clause (iv),
equals 10% or more of the Bond Principal Balances of the Bonds, but such
certificate need not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the then Bond
Principal Balances of the Bonds.
Section 10.02. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Seller or the Issuer, stating that the information with respect to
60
such factual matters is in the possession of the Seller or the Issuer, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
Section 10.03. ACTS OF BONDHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Bondholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Bondholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Bondholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01 hereof) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this Section 10.03
hereof.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Bonds shall be proved by the Bond Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Bonds shall bind the Holder of every
Bond issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Bond.
Section 10.04. NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Bondholders or other
61
documents provided or permitted by this Indenture shall be in writing and if
such request, demand, authorization, direction, notice, consent, waiver or act
of Bondholders is to be made upon, given
or furnished to or filed with:
(i) the Indenture Trustee by any Bondholder or by
the Issuer shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Indenture Trustee
at the Corporate Trust Office. The Indenture Trustee shall promptly
transmit any notice received by it from the Bondholders to the Issuer,
or
(ii) the Issuer by the Indenture Trustee or by any
Bondholder shall be sufficient for every purpose hereunder if in
writing and mailed first-class, postage prepaid to the Issuer addressed
to: Impac CMB Trust Series 1999-1, in care of Wilmington Trust Company,
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration, or at any other
address previously furnished in writing to the Indenture Trustee by the
Issuer. The Issuer shall promptly transmit any notice received by it
from the Bondholders to the Indenture Trustee, or
(iii) the Bond Insurer by the Issuer, the Indenture
Trustee or by any Bondholders shall be sufficient for every purpose
hereunder if in writing and mailed, first-class postage pre-paid, or
personally delivered or telecopied to: Ambac Assurance Corporation, Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured
Finance-Mortgage Backed Securities, Telephone (000) 000-0000,
Telecopier: (212) 363- 1459. The Bond Insurer shall promptly transmit
any notice received by it from the Issuer, the Indenture Trustee or the
Bondholders to the Issuer or Indenture Trustee, as the case may be.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, mailed first-class
postage pre-paid, to (i) in the case of Moody's, at the following address:
Xxxxx'x Investors Service, Inc., Residential Mortgage Monitoring Department, 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) in the case of Standard &
Poor's, at the following address: Standard & Poor's, 00 Xxxxxxxx (00xx Xxxxx),
Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Surveillance Department; or
as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
Section 10.05. NOTICES TO BONDHOLDERS; WAIVER. Where this Indenture
provides for notice to Bondholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Bondholder affected by such
event, at such Person's address as it appears on the Bond Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Bondholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Bondholder shall affect the sufficiency of such notice with
respect to other Bondholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given regardless of
whether such notice is in fact actually received.
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Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Bondholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Bondholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any
circumstance constitute an Event of Default.
Section 10.06. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA xx.xx. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
Section 10.07. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 10.08. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture and the Bonds by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents.
Section 10.09. SEPARABILITY. In case any provision in this Indenture or
in the Bonds shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.10. BENEFITS OF INDENTURE. The Bond Insurer and its
successors and assigns shall be a third-party beneficiary to the provisions of
this Indenture. To the extent that this Indenture confers upon or gives or
grants to the Bond Insurer any right, remedy or claim under or by reason of this
Indenture, the Bond Insurer may enforce any such right, remedy or claim
conferred, given or granted hereunder. Nothing in this Indenture or in the
Bonds, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Bondholders and the Bond Insurer,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
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Section 10.11. LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Bonds or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 10.12. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.13. COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 10.14. RECORDING OF INDENTURE. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
at its expense (which may be counsel to the Indenture Trustee or any other
counsel reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Bondholders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
Section 10.15. ISSUER OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Bonds or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI, VII and VIII of the Trust Agreement.
Section 10.16. NO PETITION. The Indenture Trustee, by entering into
this Indenture, and each Bondholder, by accepting a Bond, hereby covenant and
agree that they will not at any time prior to one year from the date of
termination hereof, institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer of, any bankruptcy,
reorganization,
64
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Bonds, this Indenture or any of the Basic
Documents.
Section 10.17. INSPECTION. The Issuer agrees that, at its expense, on
reasonable prior notice, it shall permit any representative of the Indenture
Trustee and the Bond Insurer, during the Issuer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Issuer, to make copies and extracts therefrom, to cause such books to be audited
by Independent certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers, employees, and
Independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee and the Bond Insurer
shall cause their representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the extent
that the Indenture Trustee or the Bond Insurer may reasonably determine that
such disclosure is consistent with its obligations hereunder.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
IMPAC CMB TRUST SERIES 1999-1,
as Issuer
Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By:_________________________________
Name:
Title:
LASALLE NATIONAL BANK,
as Indenture Trustee
By:________________________________
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On this 26th day of February 1999, before me personally appeared
____________ to me known, who being by me duly sworn, did depose and say, that
he/she is the ______________________ of the Indenture Trustee, one of the
corporations described in and which executed the above instrument; and that she
signed her name thereto by like order.
Notary Public
_______________________________
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF DELAWARE )
) ss.:
COUNTY OF NEW CASTLE )
On this 26th day of February, 1999, before me personally appeared
Xxxxxxxx X. Xxxxx to me known, who being by me duly sworn, did depose and say,
that she resides at Newark, DE and is the Financial Services Officer of the
Owner Trustee, one of the corporations described in and which executed the above
instrument; and that she signed her name thereto by like order.
Notary Public
_______________________________
NOTARY PUBLIC
[NOTARIAL SEAL]
EXHIBIT A-1
FORM OF CLASS A-1 BONDS
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS BOND IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF
PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AND THE RELATED BOND
INSURANCE POLICY AS PROVIDED IN THE INDENTURE REFERRED TO BELOW. THE ISSUER IS
NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON THIS BOND.
PRINCIPAL OF THIS BOND IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS BOND AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
IMPAC CMB TRUST SERIES 1999-1
COLLATERALIZED ASSET-BACKED BONDS
CLASS A-1
AGGREGATE BOND PRINCIPAL BOND INTEREST
BALANCE: $________________ RATE:____%
INITIAL BOND PRINCIPAL BOND NO. ___
BALANCE OF THIS BOND: $_______________
PERCENTAGE INTEREST: ______% CUSIP NO. ___________
Impac CMB Trust Series 1999-1 (the "Issuer"), a Delaware business
trust, for value received, hereby promises to pay to CEDE & CO. or registered
assigns, the principal sum of __________________________________________________
($_________________) in monthly installments on the twenty-fifth day of each
month or, if such day is not a Business Day, the next succeeding Business Day
(each a "Payment Date"), commencing in March 1999 and ending on or before the
Payment Date occurring in _____________________________ (the "Stated Maturity")
and to pay interest on the Bond Principal Balance of this Class A-1 Bond (this
"Bond") outstanding from time to time as provided below.
This Bond is one of a duly authorized issue of the Issuer's
Collateralized Asset-Backed Bonds, Series 1999-1 (the "Bonds"), issued under an
Indenture dated as of February 26, 1999 (the "Indenture"), between the Issuer
and LaSalle National Bank, as indenture trustee (the "Indenture Trustee", which
term includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights thereunder of the Issuer, the Indenture
Trustee, and the Holders of the Bonds and the terms upon which the Bonds are to
be authenticated and delivered. All terms used in this Bond which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
Ambac Assurance Corporation (the "Bond Insurer"), in consideration of
the payment of the premium and subject to the terms of the bond insurance policy
(the "Bond Insurance Policy") issued thereby, has unconditionally and
irrevocably guaranteed the payment of the Insured Amount with respect to the
Class A-1 Bonds with respect to each Payment Date. Such Bond Insurance Policy
will not cover any Prepayment Interest Shortfalls, Relief Act Shortfalls or ARM
Basis Risk Shortfall Carry-Forward Amount.
Payments of principal and interest on this Bond will be made on each
Payment Date to the Bondholder of record as of the related Record Date. On each
Payment Date, Bondholders will be entitled to receive interest payments in an
aggregate amount equal to the aggregate Accrued Bond Interest for such Payment
Date, together with principal payments in an aggregate amount equal to the ARM
Pool Principal Payment Amount, if any, for such Payment Date. The "Bond
Principal Balance" of a Bond as of any date of determination is equal to the
initial Bond Principal Balance thereof, reduced by the aggregate of all amounts
previously paid with respect to such Bond on account of principal and the
aggregate amount of cumulative Realized Losses allocated to such Bond on all
prior Payment Dates.
The principal of, and interest on, this Bond are due and payable as
described in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. All payments made by the Issuer with respect to this Bond shall
be equal to this Bond's pro rata share of the aggregate payments on all Bonds as
described above, and shall be applied as between interest and principal as
provided in the Indenture.
All principal and interest accrued on the Bonds, if not previously
paid, will become finally due and payable at the Final Scheduled Payment Date.
The Bonds are subject to redemption in whole, but not in part, by the
Issuer on any Payment Date on or after the earlier of (i) the Payment Date on
which the aggregate Principal Balance of the Mortgage Loans is less than or
equal to 25% of the aggregate Principal Balance of the Mortgage Loans as of the
Cut-off Date and (ii) the Payment Date in March 2006.
The Issuer shall not be liable upon the indebtedness evidenced by the
Bonds except to the extent of amounts available from the Trust Estate which
constitutes security for the payment of the Bonds. The assets included in the
Trust Estate and payments under the Bond Insurance Policy will be the sole
source of payments on the Bonds, and each Holder hereof, by its acceptance of
this Bond, agrees that (i) such Bond will be limited in right of payment to
amounts available from the Trust Estate and the Bond Insurance Policy as
provided in the Indenture and (ii) such Holder shall have no recourse to the
Issuer, the Owner Trustee, the Indenture Trustee, IMH Assets Corp., Impac
Mortgage Holdings, Inc. (formerly known as Imperial Credit Mortgage Holdings,
Inc.), the Master Servicer or any of their respective affiliates, or to the
assets of any of the foregoing entities, except the assets of the Issuer pledged
to secure the Bonds pursuant to the Indenture and the rights conveyed to the
Issuer under the Indenture and the Bond Insurance Policy.
Any payment of principal or interest payable on this Bond which is
punctually paid on the applicable Payment Date shall be paid to the Person in
whose name such Xxxx is registered at the close of business on the Record Date
for such Payment Date by check mailed to such person's address as it appears in
the Bond Register on such Record Date, except for the final installment of
principal and interest payable with respect to such Bond, which shall be payable
as provided below. Notwithstanding the foregoing, upon written request with
appropriate instructions by the Holder of this Bond delivered to the Indenture
Trustee at least five Business Days prior to the Record Date, any payment of
principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Xxxxxx. All reductions in the principal amount of a Bond (or
one or more Predecessor Bonds) effected by payments of principal made on any
Payment Date shall be binding upon all Holders of this Bond and of any bond
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, whether or not such payment is noted on such Bond. The final
payment of this Bond shall be payable upon presentation and surrender thereof on
or after the Payment Date thereof at the Corporate Trust Office or the office or
agency of the Issuer maintained by it for such purpose pursuant to Section 3.02
of the Indenture.
Subject to the foregoing provisions, each Bond delivered under the
Indenture, upon registration of transfer of or in exchange for or in lieu of any
other Bond shall carry the right to unpaid principal and interest that were
carried by such other Bond.
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Bonds, the Bonds may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs prior to the payment of the entire unpaid
Bond Principal Balance of the Bonds, the amount payable to the Holder of this
Bond will be equal to the sum of the unpaid Bond Principal Balance of the Bonds,
together with accrued and unpaid interest thereon as described in the Indenture.
The
Indenture provides that, notwithstanding the acceleration of the maturity of the
Bonds, under certain circumstances specified therein, all amounts collected as
proceeds of the Trust Estate securing the Bonds or otherwise shall continue to
be applied to payments of principal of and interest on the Bonds as if they had
not been declared due and payable.
The failure to pay any Unpaid Interest Shortfall at any time when funds
are not available to make such payment as provided in the Indenture shall not
constitute an Event of Default under the Indenture.
Pursuant to the Indenture, unless a Bond Insurer Default (as defined in
the Indenture) exists (i) the Bond Insurer shall be deemed to be the holder of
the Bonds for certain purposes specified in the Indenture (other than with
respect to payment on the Bonds), and will be entitled to exercise all rights of
the Bondholders thereunder, including the rights of Bondholders relating to the
occurrence of, and the remedies with respect to, an Event of Default, without
the consent of such Bondholders, and (ii) the Trustee may take actions which
would otherwise be at its option or within its discretion, including actions
relating to the occurrence of, and the remedies with respect to, an Event of
Default, only at the direction of the Bond Insurer.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Bond may be registered on the Bond Register of
the Issuer. Upon surrender for registration of transfer of, or presentation of a
written instrument of transfer for, this Bond at the office or agency designated
by the Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the Indenture Trustee, one or more new Bonds
of any authorized denominations and of a like aggregate initial Bond Principal
Balance, will be issued to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of this Bond,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Bond is registered as the owner
of such Bond (i) on the applicable Record Date for the purpose of making
payments and interest of such Bond, and (ii) on any other date for all other
purposes whatsoever, as the owner hereof, whether or not this Bond be overdue,
and neither the Issuer, the Indenture Trustee nor any such agent of the Issuer
or the Indenture Trustee shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Bonds under the Indenture at any
time by the Issuer with the consent of the Bond Insurer and the Holders of a
majority of all Bonds at the time outstanding. The Indenture also contains
provisions permitting (i) the Bond Insurer or (ii) if a Bond Insurer Default
exists, the Holders of Bonds representing specified percentages of the aggregate
Bond Principal Balance of the Bonds on behalf of the Holders of all the Bonds,
to waive any past Default under the Indenture and its consequences. Any such
waiver by the Holder, at the time of the giving thereof, of this Bond (or any
one or more Predecessor Bonds) shall bind the Holder of every Bond issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon such Bond.
The Indenture also permits the Issuer and the Indenture Trustee to amend or
waive certain terms and conditions set forth in the Indenture without the
consent of the Holders of the Bonds issued thereunder.
Initially, the Bonds will be registered in the name of CEDE & Co. as
nominee of DTC, acting in its capacity as the Depository for the Bonds. The
Bonds will be delivered by the clearing agency in denominations as provided in
the Indenture and subject to certain limitations therein set forth. The Bonds
are exchangeable for a like aggregate initial Bond Principal Balance of Bonds of
different authorized denominations, as requested by the Holder surrendering
same.
Unless the Certificate of Authentication hereon has been executed by
the Indenture Trustee by manual signature, this Bond shall not be entitled to
any benefit under the Indenture, or be valid or obligatory for any purpose.
AS PROVIDED IN THE INDENTURE, THIS BOND AND THE INDENTURE CREATING THIS
BOND SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated: February 26, 1999
IMPAC CMB TRUST SERIES 1999-1
BY: WILMINGTON TRUST COMPANY, not
in its individual capacity but solely
in its capacity as Owner Trustee
By:_______________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Bonds referred to in the within-mentioned
Indenture.
LASALLE NATIONAL BANK, as Indenture Trustee
By:______________________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of the Bond, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- _________________ Custodian __________________________
(Cust) Minor)
under Uniform Gifts to Minor Act________________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE:
______________________________________________________________
______________________________________________________________
______________________________________________________________
(Please print or typewrite name and address, including zip code, of assignee)
________________________________________________________________________________
the within Bond and all rights thereunder, and hereby irrevocably constitutes
and appoints __________________________ attorney to transfer said Bond on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:__________________________________ ___________________________________
Signature Guaranteed by ________________________________________________________
NOTICE: The signature(s) to this assignment must correspond with the
name as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatsoever. Signature(s) must be
guaranteed by a commercial bank or by a member firm of the New York Stock
Exchange or another national securities exchange. Notarized or witnessed
signatures are not acceptable.
EXHIBIT A-2
FORM OF CLASS A-2 BONDS
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS BOND IS A NON-RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED IN RIGHT OF
PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AND THE RELATED BOND
INSURANCE POLICY AS PROVIDED IN THE INDENTURE REFERRED TO BELOW. THE ISSUER IS
NOT OTHERWISE PERSONALLY LIABLE FOR PAYMENTS ON THIS BOND.
PRINCIPAL OF THIS BOND IS PAYABLE OVER TIME AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS BOND AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
IMPAC CMB TRUST SERIES 1999-1
COLLATERALIZED ASSET-BACKED BONDS
CLASS A-2
AGGREGATE BOND PRINCIPAL BOND INTEREST
BALANCE: $________________ RATE:____%
INITIAL BOND PRINCIPAL
BALANCE OF THIS BOND: $_______________ BOND NO. ___
PERCENTAGE INTEREST: ______% CUSIP NO.___________
Impac CMB Trust Series 1999-1 (the "Issuer"), a Delaware business
trust, for value received, hereby promises to pay to CEDE & CO. or registered
assigns, the principal sum of __________________________________________________
($_________________) in monthly installments on the twenty-fifth day of each
month or, if such day is not a Business Day, the next succeeding Business Day
(each a "Payment Date"), commencing in March 1999 and ending on or before the
Payment Date occurring in _____________________ (the "Stated Maturity") and to
pay interest on the Bond Principal Balance of this Class A-2 Bond (this "Bond")
outstanding from time to time as provided below.
This Bond is one of a duly authorized issue of the Issuer's
Collateralized Asset-Backed Bonds, Series 1999-1 (the "Bonds"), issued under an
Indenture dated as of February 26, 1999 (the "Indenture"), between the Issuer
and LaSalle National Bank, as indenture trustee (the "Indenture Trustee", which
term includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights thereunder of the Issuer, the Indenture
Trustee, and the Holders of the Bonds and the terms upon which the Bonds are to
be authenticated and delivered. All terms used in this Bond which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
Payments of principal and interest on this Bond will be made on each
Payment Date to the Bondholder of record as of the related Record Date. On each
Payment Date, Bondholders will be entitled to receive interest payments in an
aggregate amount equal to the aggregate Accrued Bond Interest for such Payment
Date, together with principal payments in an aggregate amount equal to the High
LTV Pool Principal Payment Amount, if any, for such Payment Date. The "Bond
Principal Balance" of a Bond as of any date of determination is equal to the
initial Bond Principal Balance thereof, reduced by the aggregate of all amounts
previously paid with respect to such Bond on account of principal and the
aggregate amount of cumulative Realized Losses allocated to such Bond on all
prior Payment Dates.
The principal of, and interest on, this Bond are due and payable as
described in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. All payments made by the Issuer with respect to this Bond shall
be equal to this Bond's pro rata share of the aggregate payments on all Bonds as
described above, and shall be applied as between interest and principal as
provided in the Indenture.
Ambac Assurance Corporation (the "Bond Insurer"), in consideration of
the payment of the premium and subject to the terms of the bond insurance policy
(the "Bond Insurance Policy") issued thereby, has unconditionally and
irrevocably guaranteed the payment of the Insured Amount for the Class A-2 Bonds
with respect to each Payment Date. Such Bond Insurance Policy will not cover any
Prepayment Interest Shortfalls, Relief Act Shortfalls or High LTV Pool Basis
Risk Shortfall Carry-Forward Amount.
All principal and interest accrued on the Bonds, if not previously
paid, will become finally due and payable at the Final Scheduled Payment Date.
The Bonds are subject to redemption in whole, but not in part, by the
Issuer on any Payment Date on or after the earlier of (i) the Payment Date on
which the aggregate Principal Balance of the Mortgage Loans is less than or
equal to 25% of the aggregate Principal Balance of the Mortgage Loans as of the
Cut-off Date and (ii) the Payment Date in March 2006.
The Issuer shall not be liable upon the indebtedness evidenced by the
Bonds except to the extent of amounts available from the Trust Estate which
constitutes security for the payment of the Bonds. The assets included in the
Trust Estate and payments under the related Bond Insurance Policy will be the
sole source of payments on the Bonds, and each Holder hereof, by its acceptance
of this Bond, agrees that (i) such Bond will be limited in right of payment to
amounts available from the Trust Estate and the related Bond Insurance Policy as
provided in the Indenture and (ii) such Holder shall have no recourse to the
Issuer, the Owner Trustee, the Indenture Trustee, IMH Assets Corp., Impac
Mortgage Holdings, Inc. (formerly known as Imperial Credit Mortgage Holdings,
Inc.), the Master Servicer or any of their respective affiliates, or to the
assets of any of the foregoing entities, except the assets of the Issuer pledged
to secure the Bonds pursuant to the Indenture and the rights conveyed to the
Issuer under the Indenture and the related Bond Insurance Policy.
Any payment of principal or interest payable on this Bond which is
punctually paid on the applicable Payment Date shall be paid to the Person in
whose name such Xxxx is registered at the close of business on the Record Date
for such Payment Date by check mailed to such person's address as it appears in
the Bond Register on such Record Date, except for the final installment of
principal and interest payable with respect to such Bond, which shall be payable
as provided below. Notwithstanding the foregoing, upon written request with
appropriate instructions by the Holder of this Bond delivered to the Indenture
Trustee at least five Business Days prior to the Record Date, any payment of
principal or interest, other than the final installment of principal or
interest, shall be made by wire transfer to an account in the United States
designated by such Xxxxxx. All reductions in the principal amount of a Bond (or
one or more Predecessor Bonds) effected by payments of principal made on any
Payment Date shall be binding upon all Holders of this Bond and of any bond
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, whether or not such payment is noted on such Bond. The final
payment of this Bond shall be payable upon presentation and surrender thereof on
or after the Payment Date thereof at the Corporate Trust Office or the office or
agency of the Issuer maintained by it for such purpose pursuant to Section 3.02
of the Indenture.
Subject to the foregoing provisions, each Bond delivered under the
Indenture, upon registration of transfer of or in exchange for or in lieu of any
other Bond shall carry the right to
unpaid principal and interest that were carried by such other Bond.
If an Event of Default as defined in the Indenture shall occur and be
continuing with respect to the Bonds, the Bonds may become or be declared due
and payable in the manner and with the effect provided in the Indenture. If any
such acceleration of maturity occurs prior to the payment of the entire unpaid
Bond Principal Balance of the Bonds, the amount payable to the
Holder of this Bond will be equal to the sum of the unpaid Bond Principal
Balance of the Bonds, together with accrued and unpaid interest thereon as
described in the Indenture. The Indenture provides that, notwithstanding the
acceleration of the maturity of the Bonds, under certain circumstances specified
therein, all amounts collected as proceeds of the Trust Estate securing the
Bonds or otherwise shall continue to be applied to payments of principal of and
interest on the Bonds as if they had not been declared due and payable.
The failure to pay any Unpaid Interest Shortfall at any time when funds
are not available to make such payment as provided in the Indenture shall not
constitute an Event of Default under
the Indenture.
Pursuant to the Indenture, unless a Bond Insurer Default (as defined in
the Indenture) exists (i) the Bond Insurer shall be deemed to be the holder of
the Bonds for certain purposes specified in the Indenture (other than with
respect to payment on the Bonds), and will be entitled to exercise all rights of
the Bondholders thereunder, including the rights of Bondholders relating to the
occurrence of, and the remedies with respect to, an Event of Default, without
the consent of such Bondholders, and (ii) the Trustee may take actions which
would otherwise be at its option or within its discretion, including actions
relating to the occurrence of, and the remedies with respect to, an Event of
Default, only at the direction of the Bond Insurer.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Bond may be registered on the Bond Register of
the Issuer. Upon surrender for registration of transfer of, or presentation of a
written instrument of transfer for, this Bond at the office or agency designated
by the Issuer pursuant to the Indenture, accompanied by proper instruments of
assignment in form satisfactory to the Indenture Trustee, one or more new Bonds
of any authorized denominations and of a like aggregate initial Bond Principal
Balance, will be issued to the designated transferee or transferees.
Prior to the due presentment for registration of transfer of this Bond,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Bond is registered as the owner
of such Bond (i) on the applicable Record Date for the purpose of making
payments and interest of such Bond, and (ii) on any other date for all other
purposes whatsoever, as the owner hereof, whether or not this Bond be overdue,
and neither the Issuer, the Indenture Trustee nor any such agent of the Issuer
or the Indenture Trustee shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Bonds under the Indenture at any
time by the Issuer with the consent of the Bond Insurer and the Holders of a
majority of all Bonds at the time outstanding. The Indenture also contains
provisions permitting (i) the Bond Insurer or (ii) if a Bond Insurer Default
exists, the Holders of Bonds representing specified percentages of the aggregate
Bond Principal Balance of the Bonds on behalf of the Holders of all the Bonds,
to waive any past Default under the Indenture and its
consequences. Any such waiver by the Holder, at the time of the giving thereof,
of this Bond (or any one or more Predecessor Bonds) shall bind the Holder of
every Bond issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not notation of such consent or waiver is made
upon such Bond. The Indenture also permits the Issuer and the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of the Holders of the Bonds issued thereunder.
Initially, the Bonds will be registered in the name of CEDE & Co. as
nominee of DTC, acting in its capacity as the Depository for the Bonds. The
Bonds will be delivered by the clearing agency in denominations as provided in
the Indenture and subject to certain limitations therein set forth. The Bonds
are exchangeable for a like aggregate initial Bond Principal Balance of Bonds of
different authorized denominations, as requested by the Holder surrendering
same.
The Bonds are exchangeable for a like aggregate initial Bond Principal
Balance of Bonds of different authorized denominations, as requested by the
Holder surrendering same.
Unless the Certificate of Authentication hereon has been executed by
the Indenture Trustee by manual signature, this Bond shall not be entitled to
any benefit under the Indenture, or be valid or obligatory for any purpose.
AS PROVIDED IN THE INDENTURE, THIS BOND AND THE INDENTURE CREATING THIS
BOND SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated: February 26, 1999
IMPAC CMB TRUST SERIES 1999-1
BY: WILMINGTON TRUST COMPANY, not
in its individual capacity but solely
in its capacity as Owner Trustee
By:_______________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Bonds referred to in the within-mentioned
Indenture.
LASALLE NATIONAL BANK, as Indenture Trustee
By:______________________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of the Bond, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- _________________ Custodian __________________________
(Cust) Minor)
under Uniform Gifts to Minor Act________________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE:
______________________________________________________________
______________________________________________________________
______________________________________________________________
(Please print or typewrite name and address, including zip code, of assignee)
________________________________________________________________________________
the within Bond and all rights thereunder, and hereby irrevocably constitutes
and appoints __________________________ attorney to transfer said Bond on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:__________________________________ ___________________________________
Signature Guaranteed by ________________________________________________________
NOTICE: The signature(s) to this assignment must correspond with the
name as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatsoever. Signature(s) must be
guaranteed by a commercial bank or by a member firm of the New York Stock
Exchange or another national securities exchange. Notarized or witnessed
signatures are not acceptable.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(provided upon request)
EXHIBIT C
CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT
-------------------
THIS CUSTODIAL AGREEMENT (as amended and supplemented from
time to time, the "Agreement"), dated as of February 26, 1999 (the "Closing
Date"), by and among LASALLE NATIONAL BANK (the "Indenture Trustee") as pledgee
of the Mortgage Loans of the Impac CMB Trust Series 1999-1 (the "Issuer"), IMPAC
FUNDING CORPORATION, (together with any successor in interest or successor under
the Servicing Agreement referred to below, the "Master Servicer") and BANKERS
TRUST COMPANY (together with any successor in interest or any successor
appointed xxxxxxxxx, the "Custodian").
W I T N E S S E T H T H A T :
- - - - - - - - - - - - - -
WHEREAS, pursuant to the terms of a Mortgage Loan Sale and
Contribution Agreement, dated as of the Closing Date (the "MLSCA"), Impac
Mortgage Holdings, Inc. (sometimes referred to herein as the "Seller") desires
to sell to IMH Assets Corp. (the "Purchaser") the Cut-off Date Loan Balances of
the Mortgage Loans pursuant to the terms of the MLSCA together with the Related
Documents on the Closing Date.
WHEREAS, pursuant to the terms of the Servicing Agreement
dated February 1, 1999 (the "Servicing Agreement") between the Issuer and the
Master Servicer, the Master Servicer will service the Mortgage Loans for the
Issuer directly or through one or more Subservicers;
WHEREAS, the Custodian has agreed to act as agent for the
Indenture Trustee for the purposes of receiving and holding certain documents
and other instruments delivered by the Master Servicer in respect of the
Mortgage Loans, upon the terms and conditions and subject to the limitations
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the Indenture Trustee,
the Master Servicer and the Custodian hereby agree as follows:
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ARTICLE I
Definitions
Section 1.1. DEFINITIONS. Capitalized terms used and not
defined herein shall have the meanings assigned thereto in the Definitions
contained in Appendix A to the Indenture dated February 26, 1999 (the
"Indenture"), between Impac CMB Trust Series 1999-1, as issuer, and LaSalle
National Bank, as indenture trustee, which is incorporated by reference herein.
ARTICLE II
Custody of the Mortgage Documents
Section 2.1. CUSTODIAN TO ACT AS AGENT; ACCEPTANCE OF THE
MORTGAGE FILES. The Custodian, as the duly appointed agent of the Indenture
Trustee for these purposes, acknowledges receipt of the mortgage files (the
"Mortgage Files") purporting to contain the Related Documents relating to each
of the Mortgage Loans identified on Schedule A attached hereto (the "Mortgage
Loan Schedule") and declares that it holds and will hold the Mortgage Files as
agent solely for the Indenture Trustee in trust, for the use and benefit of the
Securities and the Bond Insurer.
Pursuant to Section 8.05 of the Indenture, the Indenture
Trustee, as pledgee of the Mortgage Loans, may execute instruments to release
property from the Issuer, in a manner consistent with the provisions of the
Indenture. In connection with the foregoing, the Indenture Trustee, as pledgee
of the Mortgage Loans, shall provide promptly a copy of such executed
instruments to the Custodian. No party relying upon an instrument executed by
the Indenture Trustee, as pledgee of the Mortgage Loans, as provided in this
Section 2.1 shall be bound to ascertain the Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any moneys.
Section 2.2. RECORDATION OF ASSIGNMENTS. If and to the extent
requested to do so by the Seller, the Custodian shall complete the assignment of
Mortgage in blank included in each Mortgage File in the name of the Indenture
Trustee, as pledgee of the Mortgage Loans, and shall deliver each such
assignment to the Seller for the purpose of recording it in the appropriate
public office for real property records. The Seller, at no expense to the
Custodian, shall, pursuant to Section 2.1(c) of the MLSCA, promptly cause to be
recorded in the appropriate public office for real property records of each such
assignment completed in favor of the Indenture Trustee, as pledgee of the
Mortgage Loans, and, upon receipt thereof from such public office, shall return
each such assignment to the Custodian.
Section 2.3. REVIEW OF THE MORTGAGE FILES.
(a) The Custodian acknowledges receipt of, subject to the
exceptions it notes pursuant to the procedures described below, the documents
(or certified copies thereof) referred to in Section 2.1(b)(i) through (v) of
the MLSCA and declares that it holds and will continue to hold
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those documents and any amendments, replacements or supplements thereto on
behalf of the Indenture Trustee in trust for the use and benefit of all present
and future Holders of the Bonds and the Bond Insurer. No later than 45 days
after the Closing Date (or, with respect to any Eligible Substitute Mortgage
Loan, within 5 Business Days after the receipt by the Custodian thereof and,
with respect to any documents received beyond 45 days after the Closing Date,
promptly thereafter), the Custodian agrees, for the benefit of the Bondholders
and the Bond Insurer, to review each Mortgage File delivered to it and to
execute and deliver, or cause to be executed and delivered, to the Indenture
Trustee, as pledgee of the Mortgage Loans, an Initial Certification in the form
annexed hereto as Exhibit 1. In conducting such review, the Custodian will
ascertain whether all required documents described in Section 2.1(b) of the
MLSCA have been executed and received and whether those documents relate,
determined on the basis of the Mortgagor name, original principal balance and
loan number, to the Mortgage Loans it has received, as identified in Schedule A,
as supplemented (PROVIDED, HOWEVER, that with respect to those documents
described in subclause (b)(vii) of such section, the Custodian's obligations
shall extend only to documents actually delivered pursuant to such subclause).
In performing any such review, the Custodian may conclusively rely on the
purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If the Custodian finds any
document constituting part of the Mortgage File not to have been executed or
received, or to be unrelated to the Mortgage Loans identified in Schedule A or
to appear to be defective on its face, the Custodian shall promptly notify the
Indenture Trustee, the Seller and the Bond Insurer of such finding and the
Seller's obligation to cure such defect or repurchase or substitute for the
related Mortgage Loan.
(b) No later than 180 days after the Closing Date, the Custodian will
review on behalf of the Indenture Trustee as pledgee of the Mortgage Loans, for
the benefit of the Bondholders and the Bond Insurer, the Mortgage Files and will
execute and deliver or cause to be executed and delivered to the Indenture
Trustee, as pledgee of the Mortgage Loans, a Final Certification in the form
annexed hereto as Exhibit 2. In conducting such review, the Custodian will
ascertain whether an original of each document described in subclauses
(b)(ii)-(iv) of Section 2.1 of the MLSCA required to be recorded has been
returned from the recording office with evidence of recording thereon or a
certified copy has been obtained from the recording office. If the Custodian
finds any document constituting part of the Mortgage File has not been received,
or to be unrelated, determined on the basis of the Mortgagor name, original
principal balance and loan number, to the Mortgage Loans identified in Schedule
A or to appear defective on its face, the Custodian shall promptly notify the
Indenture Trustee, the Seller and the Bond Insurer.
Upon receipt of written request from the Indenture Trustee, as
pledgee of the Mortgage Loans, the Custodian shall as soon as practicable supply
the Indenture Trustee, as pledgee of the Mortgage Loans, with a list of all of
the documents relating to the Mortgage Loans then contained in the Mortgage
Files and reviewed as required pursuant to Section 2.3 hereof.
Custodian makes no representations as to (i) the validity,
legality, sufficiency, enforceability, due authorization, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans, or (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan, and Custodian shall incur no liability or
responsibility in respect of any such matters.
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Section 2.4. NOTIFICATION OF BREACHES OF REPRESENTATIONS AND
WARRANTIES. Upon discovery by the Custodian of a breach of any representation or
warranty made by (i) the Seller in the MLSCA or assigned by the Seller pursuant
to the MLSCA or (ii) the Master Servicer in the Servicing Agreement or assigned
by the Master Servicer pursuant to the Servicing Agreement, with respect to a
Mortgage Loan relating to a Mortgage File, the Custodian shall give prompt
written notice to the Seller or the Master Servicer, as applicable, and the Bond
Insurer.
Section 2.5. CUSTODIAN TO COOPERATE; RELEASE OF THE MORTGAGE
FILES. The Master Servicer shall notify the Custodian (with a copy to the
Indenture Trustee) of the termination of or the payment in full and the
termination of any Mortgage Loan, by a certification of a Request for Release in
one of the forms of Exhibit 3 (or an electronic request in a form acceptable to
the Custodian) of this Agreement, signed by a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payments which are required to be
deposited pursuant to the Servicing Agreement have been or will be so deposited)
and shall request delivery to it of the Mortgage File. The Custodian agrees,
upon receipt of such certification and request, promptly to release to the
Master Servicer the related Mortgage File. The Master Servicer shall deliver to
the Custodian and the Custodian agrees to accept the Mortgage Note and other
documents constituting the Mortgage File with respect to any Eligible Substitute
Loan.
From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, the Custodian shall, upon request of the
Master Servicer and delivery to the Custodian, with a copy to the Indenture
Trustee, as pledgee of the Mortgage Loans, of a trust receipt in one of the
forms annexed hereto as Exhibit 3, signed by a Servicing Officer, release or
cause to be released the related Mortgage File to the Master Servicer. Such
trust receipt shall obligate the Master Servicer to return the Mortgage File to
the Custodian (specified in such receipt) when the need therefor by the Master
Servicer no longer exists unless the Mortgage Loan shall be liquidated, in which
case, upon receipt of a Request for Release of a Servicing Officer in one of the
forms of Exhibit 3, the trust receipt shall be released to the Master Servicer.
Section 2.6. ASSUMPTION AGREEMENTS. In the event that any
assumption agreement or substitution of liability agreement is entered into with
respect to any Mortgage Loan subject to this Agreement in accordance with the
terms and provisions of the Servicing Agreement, the Master Servicer shall
notify the Custodian, the Indenture Trustee and the Bond Insurer that such
assumption or substitution agreement has been completed and shall forward to the
Custodian, with a copy to the Bond Insurer, the original of such assumption or
substitution agreement, which shall be added to the related Mortgage File and,
for all purposes, shall be considered a part of such Mortgage File to the same
extent as all other documents and instruments constituting parts thereof.
ARTICLE III
Concerning the Custodian
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Section 3.1. CUSTODIAN AS BAILEE AND AGENT OF THE INDENTURE
TRUSTEE. With respect to each Mortgage Note, Mortgage and other Related
Documents constituting each Mortgage File which are delivered to the Custodian,
the Custodian is exclusively the bailee of the Indenture Trustee and has no
instructions to hold any Mortgage Note or Mortgage for the benefit of any person
other than the Indenture Trustee and undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. Except upon
compliance with the provisions of Section 2.2, Section 2.3(b) or Section 2.5 of
this Agreement, no Mortgage Note, Mortgage or other document constituting a part
of a Mortgage File shall be delivered by the Custodian to the Master Servicer or
otherwise released from the possession of the Custodian.
Section 3.2. INDEMNIFICATION. The Master Servicer hereby
agrees to indemnify and hold the Custodian harmless from and against all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature, which the Custodian
may incur or with which the Custodian may be threatened by reason of its acting
as custodian under this Agreement, including indemnification of the Custodian
against any and all expenses, including reasonable attorney's fees, and the cost
of defending any action, suit or proceedings or resisting any claim.
Notwithstanding the foregoing, it is specifically understood and agreed that in
the event any such claim, liability, loss, action, suit or proceeding or other
expense, fee or charge shall have been caused by reason of any negligent act,
negligent failure to act, willful misconduct or bad faith on the part of the
Custodian, or which shall constitute a willful breach of its duties hereunder,
the indemnification provisions of this Agreement shall not apply.
Section 3.3. CUSTODIAN MAY OWN SECURITIES. The Custodian in
its individual or any other capacity may become the owner or pledgee of the
Securities with the same rights it would have if it were not Custodian.
Section 3.4. MASTER SERVICER TO PAY CUSTODIAN'S FEES AND
EXPENSES. The Master Servicer covenants and agrees on behalf of the Issuer to
pay to the Custodian from time to time, and the Custodian shall be entitled to,
reasonable compensation for all services rendered by it in the exercise and
performance of any of the powers and duties hereunder of the Custodian, and the
Master Servicer will pay or reimburse the Custodian upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Custodian in accordance with any of the provisions of this Agreement (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence, willful misconduct or
bad faith.
Section 3.5. CUSTODIAN MAY RESIGN; INDENTURE TRUSTEE MAY
REMOVE CUSTODIAN. The Custodian may resign from the obligations and duties
hereby imposed upon it as such obligations and duties relate to its acting as
the Custodian of the Mortgage Loans. Upon receiving such notice of resignation,
the Indenture Trustee, as pledgee of the Mortgage Loans and with the consent of
the Bond Insurer, shall either take custody of the Mortgage Files itself and
give prompt notice thereof to the Master Servicer, the Bond Insurer and the
Custodian, or promptly appoint a successor Custodian by written instrument, in
triplicate, one copy of which instrument shall be delivered to the resigning
Custodian, one copy to the successor Xxxxxxxxx and one copy to the Bond Insurer.
If the Indenture Trustee, as pledgee of the Mortgage Loans shall not have taken
custody of the Mortgage
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Files and no successor Xxxxxxxxx shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Custodian may petition any court of competent jurisdiction for the
appointment of a successor Xxxxxxxxx.
The Indenture Trustee, as pledgee of the Mortgage Loans may
remove the Custodian at any time for cause, based upon a material breach by the
Custodian of its duties and obligations hereunder. In such event, the Indenture
Trustee, as pledgee of the Mortgage Loans shall appoint, or petition a court of
competent jurisdiction to appoint, a successor Custodian hereunder. Any
successor Custodian shall be a depository institution subject to supervision or
examination by federal or state authority and shall be able to satisfy the other
requirements contained in Section 3.7 and shall be unaffiliated with the
Depositor or the Issuer.
Any resignation or removal of the Custodian and appointment of
a successor Custodian pursuant to any of the provisions of this Section 3.5
shall become effective upon acceptance of appointment by the successor
Custodian. The Indenture Trustee, as pledgee of the Mortgage Loans shall give
prompt notice to the Depositor and the Master Servicer of the appointment of any
successor Custodian. No successor Custodian other than LaSalle National Bank
shall be appointed by the Indenture Trustee, as pledgee of the Mortgage Loans
without the prior approval of the Depositor, the Bond Insurer and the Master
Servicer.
Section 3.6. MERGER OR CONSOLIDATION OF CUSTODIAN. Any Person
into which the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 3.7. REPRESENTATIONS OF THE CUSTODIAN. The Custodian
hereby represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $10,000,000 and is qualified to do business in the
jurisdictions in which it will hold any Mortgage File.
Section 3.8. INDEMNIFICATION OF THE INDENTURE TRUSTEE. The
Indenture Trustee and any director, officer, employee or agent of the Indenture
Trustee or any Person that "controls" the Indenture Trustee within the meaning
of the 1933 Act and the 1934 Act shall be entitled to indemnification by the
Custodian for any loss, liability or expense (including without limitation costs
and expenses of litigation, and of investigation, counsel fees, damages,
judgments and amounts paid in settlement) incurred by the Indenture Trustee or
such other person and arising out of the transactions contemplated by this
Agreement including, without limitation, those incurred in connection with the
Indenture Trustee or Custodian (i) performing their respective duties under this
Agreement and the Indenture Trustee enforcing its rights and remedies and
protecting the interests, and enforcing the rights and remedies of the
Bondholders and (ii) the defending or prosecuting any legal action in respect of
this Agreement or the Bonds; provided, however, that such indemnification will
not extend to any loss, liability or expense incurred by reason of willful
misfeasance, bad faith
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or negligence on the part of the Indenture Trustee in the performance of its
obligations and duties thereunder; provided, however, that with respect to any
third party claim:
(1) the Indenture Trustee shall have given the Custodian
written notice thereof promptly after a Responsible
Officer of the Indenture Trustee shall have actual
knowledge thereof except that any failure to give
such notice shall not in any way limit the right to
indemnification set forth in this Section 3.8;
(2) while maintaining control over its own defense, the
Indenture Trustee shall cooperate and consult fully
with the Custodian in preparing such defense; and
(3) notwithstanding anything to the contrary in this
Section 3.8, the Custodian shall not be liable for
settlement of any such claim by the Indenture
Trustee, entered into without the prior consent of
the Custodian, which consent shall not be
unreasonably withheld.
The foregoing indemnification shall survive any termination or assignment of
this Agreement.
ARTICLE IV
Miscellaneous Provisions
Section 4.1. NOTICES. All notices, requests, consents and
demands and other communications required under this Agreement or pursuant to
any other instrument or document delivered hereunder shall be in writing and,
unless otherwise specifically provided, may be delivered personally, by telecopy
or telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar notice
in writing), and to the Bond Insurer at Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Structured Finance-Mortgage Backed Securities, Telephone
(000) 000-0000, Telecopier: (000) 000-0000, in which case the notice will be
deemed delivered when received.
Section 4.2. AMENDMENTS. No modification or amendment of or
supplement to this Agreement shall be valid or effective unless the same is in
writing, signed by all parties hereto and consented to by the Bond Insurer, and
neither the Indenture Trustee, the Custodian nor the Master Servicer shall enter
into any amendment hereof except as permitted by the Indenture, the Trust
Agreement or the Servicing Agreement.
SECTION 4.3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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Section 4.4. RECORDATION OF AGREEMENT. To the extent permitted
by applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer and at its
expense on direction by the Indenture Trustee, as pledgee of the Mortgage Loans,
but only upon direction accompanied by an Opinion of Counsel obtained at the
expense of the Master Servicer and reasonably satisfactory to the Master
Servicer to the effect that the failure to effect such recordation is likely to
materially and adversely affect the interests of the Securities or the Bond
Insurer.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts
shall constitute but one and the same instrument.
Section 4.5. SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed 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 Securities or
the rights of the Holders thereof.
Section 4.6. RELIANCE OF CUSTODIAN. In the absence of bad
faith on the part of the Custodian, the Custodian may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any request, instructions, certificate, opinion or other document
furnished to the Custodian, reasonably believed by the Custodian to be genuine
and to have been signed or presented by the proper party or parties and
conforming to the requirements of this Agreement; but in the case of any loan
document or other request, instruction, document or certificate which by any
provision hereof is specifically required to be furnished to the Custodian, the
Custodian shall be under a duty to examine the same to determine whether or not
it conforms to the requirements of this Agreement
Section 4.7. TRANSMISSION OF MORTGAGE FILES AND OTHER
DOCUMENTS. Prior to any shipment of any Mortgage Files hereunder, the requesting
party shall deliver to the Custodian written instructions as to the method of
shipment and shipper(s) the Custodian is to utilize in connection with the
transmission of Mortgage Files or other loan documents in the performance of the
Custodian's duties hereunder. The requesting party shall arrange for the
provision of such services at its sole cost and expense (or, at the Custodian's
option, reimburse the Custodian for all costs and expenses incurred by the
Custodian consistent with such instructions) and will maintain such insurance
against loss or damage to mortgage files or other loan documents as the
requesting party deems appropriate. Without limiting the generality of the
provisions of Section 3.2 above, it is expressly agreed that in no event shall
the Custodian have any liability for any losses or damages to any person,
including without limitation, the Indenture Trustee or the Master Servicer,
arising out of actions of the Custodian consistent with instruction of the
requesting party. In the event the
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Custodian does not receive such written instructions, the Custodian shall be
authorized and shall be indemnified as provided herein to utilize a nationally
recognized courier service.
IN WITNESS WHEREOF, this Agreement is executed as of the date
first above written.
Address: LASALLE NATIONAL BANK, not in its
individual capacity but solely as
pledgee of the Mortgage Loans
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
By:_______________________________
Name:
Title:
Address: IMPAC FUNDING CORPORATION,
as Master Servicer
00000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000
By:_______________________________
Name:
Title:
Address: BANKERS TRUST COMPANY,
as Custodian
0 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Mortgage Custody IM9901 By:_______________________________
Name:
Title:
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 26th day of February, 1999, before me, a notary public
in and for said State, personally appeared _______________, known to me to be a
_____________ of LaSalle National Bank, one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation and acknowledged to me that such corporation executed
the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________
Notary Public
[Notarial Seal]
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 26th day of February, 1999, before me, a notary public
in and for said State, personally appeared ___________, known to me to be a
_________ of Impac Funding Corporation, one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________________
Notary Public
[Notarial Seal]
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 26th day of February, 1999, before me, a notary public
in and for said State, personally appeared ____________, known to me to be a
__________ of Bankers Trust Company, one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said national banking association, and acknowledged to me that such
national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________________
Notary Public
[Notarial Seal]
EXHIBIT 1
FORM OF CUSTODIAN INITIAL CERTIFICATION
___________________, 199_
[Issuer]
[Bond Insurer]
[Master Servicer]
[Indenture Trustee]
Attention: Impac CMB Trust Series 1999-1
Re: Custodial Agreement dated as of February 26, 1999, by
and among LaSalle National Bank, as pledgee of the
Mortgage Loans of Impac CMB Trust Series 1999-1,
Impac Funding Corporation and Bankers Trust Company
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned
Custodial Agreement, and Section 2.1(b)(i)-(v) of the Mortgage Loan Sale and
Contribution Agreement, dated as of February 26, 1999 between Impac Mortgage
Holdings, Inc. (formerly known as Imperial Credit Mortgage Holdings, Inc.) and
Impac Funding Corporation (formerly known as ICI Funding Corporation) (the
"MLSCA"; and together with the Indenture, the "Agreements"), the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
exception report attached hereto) it has reviewed the Mortgage File and the
Mortgage Loan Schedule and has determined that: (i) all documents required to be
included in the Mortgage File are in its possession; (ii) such documents have
been reviewed by it and appear regular on their face and relate to such Mortgage
Loan; and (iii) based on examina tion by it, and only as to such documents, the
information set forth in items (iii) and (v) of the definition or description of
"Mortgage Loan Schedule" is correct.
The Custodian has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the above-referenced Agreements. The Custodian makes no
representation that any documents specified in clause (v) of Section 2.1(b) of
the MLSCA should be included in any Mortgage File. The Custodian makes no
representations as to and shall not be responsible to verify: (i) the validity,
legality, sufficiency, enforceability, due authorization, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan, or (iii) the existence of any assumption, modification, written assurance
or substitution agreement with respect to any Mortgage File if no such documents
appear in the Mortgage File delivered to the Custodian.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
BANKERS TRUST COMPANY,
as Custodian
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT 2
FORM OF CUSTODIAN FINAL CERTIFICATION
___________________, 199_
[Issuer]
[Bond Insurer]
[Master Servicer]
[Indenture Trustee]
Attention: Impac CMB Trust Series 1999-1
Re: Custodial Agreement, dated as of February 26, 1999,
by and among LaSalle National Bank, as pledgee of the
Mortgage Loans of the Impac CMB Trust Series 1999-1,
Impac Funding Corporation and Bankers Trust Company
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned
Custodial Agreement, and Section 2.1(b) of the Mortgage Loan Sale and
Contribution Agreement, dated as of February 26, 1999, between Impac Mortgage
Holdings, Inc. (formerly known as Imperial Credit Mortgage Holdings, Inc.) and
Impac Funding Corporation (formerly known as ICI Funding Corporation) (the
"MLSCA"; and together with the Indenture, the "Agreements"), the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
exception report attached hereto) it has received the documents set forth in
Section 2.1(b) of the MLSCA.
The Custodian has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Agreements. The Custodian makes no representation that any
documents specified in clause (v) of Section 2.1(b) should be included in any
Mortgage File. The Custodian makes no representations as to and shall not be
responsible to verify: (i) the validity, legality, sufficiency, enforceability,
due authorization, recordability or genuineness of any of the documents
contained in each Mortgage File of any of the Mortgage Loans identified on the
Mortgage Loan Schedule, (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan or (iii) the existence of any assumption,
modification, written assurance or substitution agreement with respect to any
Mortgage File if no such documents appear in the Mortgage File delivered to the
Custodian.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
BANKERS TRUST COMPANY,
as Custodian
By:_______________________________
Name:_____________________________
Title:____________________________
EXHIBIT 3
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the Mortgage Loans, we request the
release of the Mortgage File described below.
Servicing Agreement Dated:
Series #:
Account #:
Pool #:
Loan #:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan Prepaid in Full
Other
Mortgage Loan Repurchased
Please deliver the Mortgage File to:__________________________________________
______________________________________________________________________________
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Servicing Agreement."
_____________________________________
[Name of Master Servicer]
Authorized Signature
SCHEDULE A
MORTGAGE LOAN SCHEDULE
TO BE PROVIDED UPON REQUEST
APPENDIX A
DEFINITIONS
ACCRUAL PERIOD: With respect to the Bonds and any Payment
Date, the period commencing on the preceding Payment Date (or, in the case of
the first Payment Date, on the Closing Date) through the day preceding such
Payment Date.
ACCRUED BOND INTEREST: With respect to each Payment Date, as
to each Class of Bonds, interest accrued during the related Accrual Period at
the related Bond Interest Rate on the Bond Principal Balance thereof immediately
prior to such Payment Date. Accrued Bond Interest for the Bonds shall be
calculated on the basis of the actual number of days in the Accrual Period and a
360-day year.
ADJUSTMENT DATE: As to each ARM Loan, each date set forth in
the related Mortgage Note on which an adjustment to the interest rate on such
Mortgage Loan becomes effective.
ADVANCE: As to any Mortgage Loan, any advance made by the
Master Servicer (or the Indenture Trustee as successor Master Servicer),
pursuant to Section 4.04 of the Servicing Agreement. Anything in the Basic
Documents referring to an "Advance" by the Master Servicer shall be deemed to
mean the Indenture Trustee as Master Servicer, if the Master Servicer has been
terminated pursuant to Section 6.01 of the Servicing Agreement and the Indenture
Trustee has made such Advance.
AFFILIATE: With respect to any Person, any other Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" means the power to direct the management
and policies of a Person, directly or indirectly, whether through ownership of
voting securities, by contract or otherwise and "controlling" and "controlled"
shall have meanings correlative to the foregoing.
APPRAISED VALUE: The appraised value of a Mortgaged Property
based upon the lesser of (i) the appraisal made at the time of the origination
of the related Mortgage Loan, or (ii) the sales price of such Mortgaged Property
at such time of origination. With respect to a Mortgage Loan the proceeds of
which were used to refinance an existing mortgage loan, the appraised value of
the Mortgaged Property based upon the appraisal obtained at the time of
refinancing.
ARM LOANS: At any time, collectively, all the mortgage loans
that have been sold to the Depositor under the Mortgage Loan Sale and
Contribution Agreement which have adjustable rates and will be secured by first
liens on the related Mortgage Property.
ARM POOL: The ARM Loans in the aggregate.
ARM POOL AVAILABLE FUNDS: With respect to any Payment Date,
the sum of the following, in each case with respect to the ARM Loans:
(i) each previously undistributed Monthly Payment due after
the Cut-Off Date received on or prior to the related Determination Date
or advanced prior to such Payment Date (other than Monthly Payments due
after the related Due Period, which shall be treated as if received
during the Due Period they were due and other than Monthly Payments
with respect to which the Master Servicer has made an unreimbursed
Advance) on each Outstanding Mortgage Loan in the ARM Pool (less the
related Servicing Fees, any subservicing fees under any Subservicing
Agreement and any fees or penalties retained by the Servicer or any
subservicer, the fees of the Owner Trustee and the Indenture Trustee
and the premium with respect to the related Bond Insurance Policy);
(ii) all proceeds of any ARM Loan repurchased during the
related Collection Period (or deemed to have been so repurchased in
accordance with the Servicing Agreement) pursuant to the Servicing
Agreement and the amount of any shortfall deposited in the Collection
Account in connection with the substitution of a Deleted Mortgage Loan
pursuant to the Servicing Agreement during the related Collection
Period; and
(iii) all other unscheduled collections (including, without
limitation, Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related Due Period (or
deemed to have been so received) to the extent applied by the Master
Servicer as recoveries of principal of the related ARM Loan pursuant to
the Servicing Agreement;
(iv) interest on amounts in the Collection Account in respect
of deposits from the ARM Loans;
(v) any fees or penalties on the ARM Loans, including
prepayment penalties and assumption fees, not retained by any
Subservicer pursuant to the terms of the related Subservicing
Agreement; and
(vi) the ARM Pool Cap Contract Payment Amount;
MINUS
(viii) expenses incurred by and reimbursable to Master
Servicer or the Depositor pursuant to the Servicing Agreement or
otherwise, or in connection with enforcing any repurchase, substitution
or indemnification obligation of the Seller (other than an Affiliate
of the Depositor) in respect of an ARM Loan; and
(ix) amounts expended by the Master Servicer (a) pursuant to
the Servicing Agreement in good faith in connection with the
restoration of property related to an ARM Loan damaged by an Uninsured
Cause, and (b) in connection with the liquidation of a
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ARM Loan or disposition of an REO Property related to an ARM Loan to
the extent not otherwise reimbursed to the Master Servicer pursuant to
the Servicing Agreement; and
(x) if the Bonds have been declared due and payable
following an Event of Default on such Payment Date, any
amounts owed to the Indenture Trustee by the Issuer
pursuant to Section 6.07 of the Indenture.
ARM POOL BASIS RISK SHORTFALL: On each Payment Date, the
excess, if any, of (x) Accrued Bond Interest on the Class A-1 Bonds calculated
pursuant to clause (i) of the definition of Bond Interest Rate thereof over (y)
interest accrued on the related Mortgage Loans at the Class A-1 Available Funds
Rate.
ARM POOL BASIS RISK SHORTFALL CARRY-FORWARD AMOUNT: With
respect to any Payment Date, an amount equal to the aggregate amount of ARM Pool
Basis Risk Shortfall for the Class A-1 Bonds on such Payment Date, plus any
unpaid ARM Pool Basis Risk Shortfall from prior Payment Dates, plus interest
thereon at the related Bond Interest Rate for such Payment Date, to the extent
previously unreimbursed by the ARM Pool Net Monthly Excess Cash Flow.
ARM POOL CAP CONTRACT PAYMENT AMOUNT: With respect to any
Payment Date, the amount payable by the Cap Counterparty under the Cap Contract
based upon the Confirmation attached as Exhibit I and related to Transaction
1737/1831.
ARM POOL CUT-OFF DATE BALANCE: $123,993,721.
ARM POOL EXCESS OVERCOLLATERALIZATION AMOUNT: With respect to
any Payment Date, the excess, if any, of (a) the ARM Pool Overcollateralization
Amount that would apply on such Payment Date after taking into account all
distributions to be made on such Payment Date over (b) the ARM Pool Required
Overcollateralization Amount for such Payment Date.
ARM POOL INSURED AMOUNT: Shall have the meaning assigned to
the term "Insured Amount" in the Bond Insurance Policy applicable to the Class
A-1 Bonds.
ARM POOL OVERCOLLATERALIZATION AMOUNT: As of any Payment Date,
the excess, if any, of (a) the aggregate Principal Balances of the ARM Loans
immediately following such Payment Date over (b) the Bond Principal Balance of
the Class A-1 Bonds as of such Payment Date (after taking into account the
payments to the Class A-1 Bonds of the ARM Pool Principal Payment Amount).
ARM POOL OVERCOLLATERALIZATION DEFICIT: As of any Payment
Date, the excess, if any, of (a) the Bond Principal Balance of the Class A-1
Bonds as of such Payment Date (after taking into account the payments to the
Class A-1 Bonds of the ARM Pool Principal Payment Amount) over (b) the aggregate
Principal Balances of the ARM Loans immediately following such Payment Date.
3
ARM POOL OVERCOLLATERALIZATION INCREASE AMOUNT: On any Payment
Date, an amount equal to the lesser of (i) the ARM Pool Available Funds and any
Insured Amount and Reserve Fund Release Amount in respect of the Class A-1 Bonds
after distributions pursuant to Section 3.05(b)(i) through (iii) of the
Indenture and (ii) the excess of (a) the ARM Pool Required Overcollateralization
Amount for such Payment Date over (b) the ARM Pool Overcollateralization Amount
that would apply on such Payment Date after taking into account all
distributions to be made on such Payment Date.
ARM POOL OVERCOLLATERALIZATION REDUCTION AMOUNT: As of any
Payment Date, any ARM Pool Excess Overcollateralization Amount as of such
Payment Date after distribution of the ARM Pool Principal Payment Amount on such
Payment Date.
ARM POOL PRINCIPAL PAYMENT AMOUNT: With respect to any Payment
Date, the sum of the following, in each case with respect to the ARM Loans:
(i) the principal portion of each previously undistributed
Monthly Payment due after the Cut-Off Date received on or prior to the
related Determination Date or advanced prior to such Payment Date
(other than Monthly Payments due after the related Due Period, which
shall be treated as if received during the Due Period they were due) on
each Outstanding Mortgage Loan in the ARM Pool;
(ii) the principal portion of all proceeds of any ARM Loan
repurchased during the related Prepayment Period (or deemed to have
been so repurchased in accordance with the Servicing Agreement)
pursuant to the Servicing Agreement and the amount of any shortfall
deposited in the Collection Account in connection with the substitution
of a Deleted Mortgage Loan pursuant to the Servicing Agreement during
the related Collection Period;
(iii) the principal portion of all other unscheduled
collections (including, without limitation, Principal Prepayments,
Insurance Proceeds, Liquidation Proceeds and REO Proceeds) received
during the related Prepayment Period (or deemed to have been so
received) to the extent applied by the Master Servicer as recoveries of
principal of the related ARM Loan pursuant to the Servicing Agreement;
and
(iv) the portion of any ARM Pool Insured Amount or Reserve
Fund Release Amount for such Payment Date in respect of any ARM Pool
Overcollateralization Deficit;
MINUS
(v) the amount of any ARM Pool Overcollateralization Reduction
Amount for such Payment Date.
ARM POOL NET MONTHLY EXCESS CASH FLOW: For any Payment Date,
the amount as defined in Section 3.05(b)(iv) of the Indenture.
4
ARM POOL REQUIRED OVERCOLLATERALIZATION AMOUNT: With respect
to any Payment Date (i) prior to the ARM Pool Step-Down Date, 2.25% of the ARM
Pool Cut-off Date Balance and (ii) on or after the ARM Pool Step-Down Date, the
greatest of (a) 4.50% of the then current aggregate Principal Balance of the ARM
Loans as of the end of the related Due Period, (b) the aggregate Principal
Balance of the three largest ARM Loans, (c) two times the excess of (1) 50% of
the aggregate Principal Balance of the ARM Loans 90 or more days delinquent over
(2) three times the ARM Pool Net Monthly Excess Cash Flow for such Payment Date
and (d) 0.50% of the ARM Pool Cut-off Date Balance.
ARM POOL RESERVE FUND ADDITION: With respect to any Payment
Date, if, following distributions to be made with respect to such Payment Date,
the ARM Pool Overcollateralization Amount is equal to the ARM Pool Required
Overcollateralization Amount, an amount equal to the excess, if any, of (i) the
sum of ARM Pool Required Overcollateralization Amount and the High LTV Pool
Required Overcollateralization Amount over (ii) the sum of ARM Pool
Overcollateralization Amount, the High LTV Pool Overcollateralization Amount and
the amount in the Reserve Fund.
ARM POOL STEP-DOWN DATE: The later of (i) the first Payment
Date occurring after February 2002 and (ii) the first Payment Date on which the
Principal Balance of the ARM Loans is equal to or less than 50% of the ARM Pool
Cut-off Date Balance.
ASSIGNMENT OF MORTGAGE: An assignment of Mortgage, notice of
transfer or equivalent instrument, in recordable form, which is sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to reflect of record the sale of the Mortgage, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering Mortgages secured by Mortgaged Properties located in the
same county, if permitted by law.
AUTHORIZED NEWSPAPER: A newspaper of general circulation in
the Borough of Manhattan, The City of New York, printed in the English language
and customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays.
AUTHORIZED OFFICER: With respect to the Issuer, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identi fied on the list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter).
AVAILABLE FUNDS: The ARM Pool Available Funds or High LTV Pool
Available Funds, as applicable.
BACK-UP SERVICER: A Person selected by and acceptable to the
Seller and the Bond Insurer to be the successor to Xxxxxxxx as Subservicer with
respect to the High LTV Loans.
5
BALLOON LOAN: Each of the Mortgage Loans identified in the
Mortgage Loan Schedule as having an original term to maturity that is shorter
than the related amortization term.
BALLOON PAYMENT: With respect to any Balloon Loan, the related
Monthly Payment payable on the stated maturity date of such Balloon Loan.
BANKRUPTCY CODE: The Bankruptcy Code of 1978, as amended.
BASIC DOCUMENTS: The Trust Agreement, the Certificate of
Trust, the Indenture, the Servicing Agreement, the Insurance Agreement, the
Mortgage Loan Sale and Contribution Agreement, the Cap Contract and the other
documents and certificates delivered in connection with any of the above.
BENEFICIAL OWNER: With respect to any Bond, the Person who is
the beneficial owner of such Xxxx as reflected on the books of the Depository or
on the books of a Person maintaining an account with such Depository (directly
as a Depository Participant or indirectly through a Depository Participant, in
accordance with the rules of such Depository).
BOND INSURANCE POLICY: With respect to the Class A-1 Bonds,
the certificate guaranty insurance policy number #AB0235BE, issued by the Bond
Insurer to the Indenture Trustee for the benefit of the Class A-1 Bondholders.
With respect to the Class A-2 Bonds, the certificate guaranty insurance policy
number #AB0236BE, issued by the Bond Insurer to the Indenture Trustee for the
benefit of the Class A-2 Bondholders.
BOND INSURANCE PREMIUM: The premium payable to the Bond
Insurer with respect to each Bond Insurance Policy, as specified in the
Insurance Agreement.
BOND INSURER: Ambac Assurance Corporation, a
Wisconsin-domiciled stock insurance corporation, any successor thereto or any
replacement bond insurer substituted pursuant to Section 3.29 of the Indenture.
XXXX INSURER DEFAULT: The existence and continuance of any of
the following: (a) a failure by the Bond Insurer to make a payment required
under the related Bond Insurance Policy in accordance with its terms; or (b)(i)
the Bond Insurer (A) files any petition or commences any case or proceeding
under any provision or chapter of the Bankruptcy Code or any other similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization, (B) makes a general assignment for the benefit of
its creditors, or (C) has an order for relief entered against it under the
Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization which is
final and nonappealable; or (ii) a court of competent jurisdiction, the New York
or Wisconsin Department of Insurance or other competent regulatory authority
enters a final and nonappealable order, judgment or decree (A) appointing a
custodian, trustee, agent or receiver for the Bond Insurer or for all or any
material portion of its property or (B) authorizing the taking of possession by
a
6
custodian, trustee, agent or receiver of the Bond Insurer (or the taking of
possession of all or any material portion of the property of the Bond Insurer).
BOND INTEREST RATE: With respect to each Payment Date and the
Class A-1 Bonds, a floating rate equal to the lesser of (i) One-Month LIBOR plus
the related Bond Margin and (ii) the Maximum Class A-1 Bond Rate with respect to
such Payment Date. With respect to each Payment Date and the Class A-2 Bonds, a
floating rate equal to the lesser of (i) One-Month LIBOR plus the related Bond
Margin and (ii) the Maximum Class A-2 Bond Rate with respect to such Payment
Date.
BOND MARGIN: With respect the Class A-1 Bonds is equal to
0.40% prior to the Step-Up Date and 0.80% thereafter. With respect the Class A-2
Bonds is equal to 0.63% prior to the Step-Up Date and 1.26% thereafter.
BOND OWNER: The Beneficial Owner of a Bond.
BOND PRINCIPAL BALANCE: With respect to any Bond and any date
of determination, the initial Bond Principal Balance as stated on the face
thereof, minus all amounts distributed in respect of principal with respect to
such Bond and the aggregate amount of Realized Losses allocated to such Bond on
all prior Payment Dates. Reimbursement of the principal portion of Realized
Losses from the Interest Remittance Amount shall not reduce the Bond Principal
Balance of any Bond.
BOND REGISTER: The register maintained by the Bond Registrar
in which the Bond Registrar shall provide for the registration of Bonds and of
transfers and exchanges of Bonds.
BOND REGISTRAR: The Indenture Trustee, in its capacity as Bond
Registrar, or any successor to the Indenture Trustee in such capacity.
BONDHOLDER OR HOLDER: The Person in whose name a Bond is
registered in the Bond Register, except that, any Bond registered in the name of
the Depositor, the Issuer or the Indenture Trustee or any Affiliate of any of
them shall be deemed not to be a holder or holder, nor shall any so owned be
considered outstanding, for purposes of giving any request, demand,
authorization, direction, notice, consent or waiver under the Indenture or the
Trust Agreement; provided that, in determining whether the Indenture Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Bonds that the Indenture Trustee or
the Owner Trustee knows to be so owned shall be so disregarded. Owners of Bonds
that have been pledged in good faith may be regarded as Holders if the pledgee
establishes to the satisfaction of the Indenture Trustee or the Owner Trustee
the pledgee's right so to act with respect to such Bonds and that the pledgee is
not the Issuer, any other obligor upon the Bonds or any Affiliate of any of the
foregoing Persons. Any bonds on which payments are made under the related Bond
Insurance Policy shall be deemed Outstanding until the Bond Insurer has been
reimbursed with respect thereto and the Bond Insurer shall be deemed the
Bondholder thereof to the extent of such unreimbursed payment.
7
BONDS: The Class A-1 Bonds and Class A-2 Bonds issued and
outstanding at any time pursuant to the Indenture.
BOOK-ENTRY BONDS: Beneficial interests in the Bonds, ownership
and transfers of which shall be made through book entries by the Depository as
described in Section 4.06 of the Indenture.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the City of New York, Delaware or
California or in the city in which the corporate trust offices of the Indenture
Trustee or the principal office of the Bond Insurer are
located, are required or authorized by law to be closed.
BUSINESS TRUST STATUTE: Chapter 38 of Title 12 of the Delaware
Code, 12 DEL. Code ss.ss.3801 ET SEQ., as the same may be amended from time to
time.
CAP CONTRACT: The ISDA Master Agreement, including the Credit
Support Annex and the Confirmations thereto, dated February 26, 1999, between
the Cap Counterparty and the Issuer.
CAP CONTRACT DEPOSIT: The amount equal to $508,000 deposited
by the Company into the Trust to allow the Owner Trustee on behalf of the Issuer
to acquire the Cap Contract.
CAP CONTRACT PLEDGED COLLATERAL: The collateral pledged by the
Cap Counterparty to the Issuer pursuant to the Cap Contract.
CAP COUNTERPARTY: DLJ Financial Products Limited, and its
successors and assigns.
CARRY-FORWARD AMOUNT: The ARM Pool Basis Risk Shortfall
Carry-Forward Amount or High LTV Pool Basis Risk Shortfall Carry-Forward Amount,
as applicable.
CASH LIQUIDATION: As to any defaulted Mortgage Loan other than
a Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Master Servicer that it has received all Insurance Proceeds, Liquidation
Proceeds and other payments or cash recoveries which the Master Servicer
reasonably and in good faith expects to be finally recoverable with
respect to such Mortgage Loan.
CERTIFICATE DISTRIBUTION ACCOUNT: The account or accounts
created and maintained pursuant to Section 3.10(c) of the Trust Agreement. The
Certificate Distribution Account shall be an Eligible Account.
CERTIFICATE PAYING AGENT: The meaning specified in Section
3.10 of the Trust Agreement.
8
CERTIFICATE PERCENTAGE INTEREST: With respect to each
Certificate, the Certificate Percentage Interest stated on the face thereof.
CERTIFICATE REGISTER: The register maintained by the
Certificate Registrar in which the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates.
CERTIFICATE REGISTRAR: Initially, the Indenture Trustee, in
its capacity as Certificate Registrar, or any successor to the Indenture Trustee
in such capacity.
CERTIFICATE OF TRUST: The Certificate of Trust filed for the
Trust pursuant to Section 3810(a) of the Business Trust Statute.
CERTIFICATES OR TRUST CERTIFICATES: The IMH Assets Corp.,
Trust Certificates, Series 1999-1, evidencing the beneficial ownership interest
in the Issuer and executed by the Owner Trustee in substantially the form set
forth in Exhibit A to the Trust Agreement.
CERTIFICATEHOLDER OR HOLDER: The Person in whose name a
Certificate is registered in the Certificate Register. Owners of Certificates
that have been pledged in good faith may be regarded as Holders if the pledgee
establishes to the satisfaction of the Indenture Trustee or the Owner Trustee,
as the case may be, the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Issuer, any other obligor upon the
Certificates or any Affiliate of any of the foregoing Persons.
CLASS: Collectively, all of the Bonds bearing the same
designation.
CLASS A-1 AVAILABLE INTEREST: On any Payment Date, an amount
equal to interest accrued on the ARM Loans at the Class A-1 Available Funds Rate
for such Payment Date
CLASS A-1 AVAILABLE FUNDS RATE: On any Payment Date, a rate
equal to the sum of (A)(i)(a) the weighted average of the Mortgage Rates on the
ARM Loans minus the sum of the related Servicing Fee Rate, Indenture Trustee Fee
Rate, Owner Trustee Fee Rate, 0.50% per annum, and, if applicable, the related
CMAC PMI Policy Rate, weighted on the basis of the Principal Balances thereof as
of the end of the prior Due Period, times a fraction equal to (1) the aggregate
Principal Balance of the ARM Loans as of the end of the prior Due Period over
(2) the Bond Principal Balance of the Class A-1 Bonds immediately prior to such
Payment Date, minus (b) the related Policy Premium Rate, times (ii) a fraction
equal to (x) 30 divided by (y) the number of days in the related Accrual Period
plus (B)(i) a fraction, converted to a per annum percentage, (x) the numerator
of which is equal to the sum of (a) the ARM Pool Cap Contract Payment Amount for
such Payment Date (whether or not received) and (b) amounts in respect of
interest received with respect to the ARM Loans for such Payment Date with
respect to clauses (iv) and (v) of the definition of ARM Pool Available Funds,
and (y) the denominator of which is the aggregate Principal Balance of the ARM
Loans as of the end of the prior Due Period, times (ii) a fraction equal to (x)
30 divided by (y) the number of days in the related Accrual Period.
9
CLASS A-2 AVAILABLE INTEREST: On any Payment Date, an amount
equal to interest accrued on the High LTV Loans at the Class A-2 Available Funds
Rate for such Payment Date
CLASS A-2 AVAILABLE FUNDS RATE: A rate equal to the sum of
(A)(i)(a) the weighted average of the Mortgage Rates on the High LTV Loans minus
the sum of the related Servicing Fee Rate, Indenture Trustee Fee Rate, Owner
Trustee Fee Rate and 2.50% per annum, weighted on the basis of the Principal
Balances thereof as of the end of the prior Due Period, times a fraction equal
to (1) the aggregate Principal Balance of the High LTV Loans as of the end of
the prior Due Period over (2) the Bond Principal Balance of the Class A-2 Bonds
immediately prior to such Payment Date, minus (b) the related Policy Premium
Rate, times (ii) a fraction equal to (x) 30 divided by (y) the number of days in
the related Accrual Period plus (B)(i) a fraction, converted to a per annum
percentage, (x) the numerator of which is equal to the sum of (a) the High LTV
Pool Cap Contract Payment Amount for such Payment Date (whether or not received)
and (b) amounts in respect of interest received with respect to the ARM Loans
for such Payment Date with respect to clauses (iv), (v) and (vi) of the
definition of High LTV Pool Available Funds, and (y) the denominator of which is
the aggregate Principal Balance of the High LTV Loans as of the end of the prior
Due Period, times (ii) a fraction equal to (x) 30 divided by (y) the number of
days in the related Accrual Period.
CLOSING DATE: February 26, 1999.
CMAC: Commonwealth Mortgage Assurance Corporation, or its
successor in interest.
CMAC PMI POLICY: The modified primary insurance policy issued
with respect to certain of the ARM Loans by CMAC.
CMAC PMI POLICY FEE: With respect to each Mortgage Loan
covered by the CMAC PMI Policy and any Payment Date, the product of (i) the CMAC
PMI Policy Rate divided by 12 and (ii) the Principal Balance of such Mortgage
Loan as of the first day of the related Due
Period.
CMAC PMI POLICY RATE: With respect to any ARM Loan covered by
the CMAC PMI Policy, the rate per annum at which the premium with respect to
such policy accrues.
CODE: The Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
COLLATERAL: The meaning specified in the Granting Clause of
the Indenture.
COLLATERAL ACCOUNT CONTROL AGREEMENT: The Collateral Account
Control Agreement between the Issuer and the Securities Intermediary, whereby
which the Cap Contract Pledged Collateral under the Cap Contract is held by the
Securities Intermediary.
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COLLECTION ACCOUNT: The account or accounts created and
maintained pursuant to Section 3.06(d) of the Servicing Agreement. The
Collection Account shall be an Eligible Account.
COLLECTION PERIOD: With respect to each Payment Date, the
calendar month immediately preceding the month in which such Payment Date
occurs.
COMBINED LOAN-TO-VALUE RATIO: With respect to any Mortgage
Loan and any date, the percentage equivalent of a fraction, the numerator of
which is the Cut-Off Date Principal Balance of such Mortgage Loan and of any
mortgage loan or mortgage loans that are secured by liens on the Mortgaged
Property that are subordinate to the Mortgage and the denominator of which is
the Appraised Value of the related Mortgaged Property.
COMPENSATING INTEREST: With respect to any Determination Date,
an amount equal to the lesser of (i) the aggregate amount of Prepayment Interest
Shortfall for the related Collection Period and (ii) the Servicing Fee for such
Determination Date.
CONDOSELECT LOAN: The Mortgage Loans that are
cross-collateralized and cross- defaulted and indicated on the Mortgage Loan
Schedule as "CondoSelect Loans."
CONVERTED MORTGAGE LOAN: Any Convertible Mortgage Loan with
respect to which the interest rate borne by such Mortgage Loan has been
converted from an adjustable interest rate to a fixed interest rate.
CONVERTIBLE MORTGAGE LOAN: Any Mortgage Loan which by its
terms grants to the related Mortgagor the option to convert the interest rate
borne by such Mortgage Loan from an adjustable interest rate to a fixed interest
rate.
CONVERTING MORTGAGE LOAN: Any Convertible Mortgage Loan with
respect to which the related Mortgagor has given notice of his intent to convert
from an adjustable interest rate to a fixed interest rate and prior to the
conversion of such Mortgage Loan.
CORPORATE TRUST OFFICE: With respect to the Indenture Trustee,
Certificate Registrar, Certificate Paying Agent and Paying Agent, the principal
corporate trust office of the Indenture Trustee and Bond Registrar at which at
any particular time its corporate trust business shall be administered, which
office at the date of the execution of this instrument is located at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Impac CMB Trust Series
1999-1. With respect to the Owner Trustee, the principal corporate trust office
of the Owner Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of the execution of
this Trust Agreement is located at Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Impac
CMB Trust Series 1999-1.
CUMULATIVE LOSS PERCENTAGE: As to any Payment Date and the
Mortgage Loans, the percentage equivalent of the fraction obtained by dividing
(i) the aggregate of Realized Losses
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on the Mortgage Loans from the Cut-Off Date through such Payment Date by (ii)
the aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date.
CUSTODIAN: Bankers Trust Company of California, N.A., or its
successor.
CUSTODIAL AGREEMENT: The Custodial Agreement dated February
26, 1999, among the Custodian, the Indenture Trustee and the Master Servicer.
CUT-OFF DATE: With respect to the ARM Loans, February 1, 1999.
With respect to the High LTV Loans, the close of business on January 31, 1999.
CUT-OFF DATE PRINCIPAL BALANCE: With respect to any Mortgage
Loan, the unpaid principal balance thereof as of the Cut-Off Date after applying
the principal portion of Monthly Payments due on or before such date, whether or
not received, and without regard to any payments due after such date.
DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction constituting a Deficient Valuation or any reduction that results in a
permanent forgiveness of principal.
DEFAULT: Any occurrence which is or with notice or the lapse
of time or both would become an Event of Default.
DEFICIENCY AMOUNT: The meaning provided in the related Bond
Insurance Policy.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding indebtedness under the Mortgage Loan, or
any reduction in the amount of principal to be paid in connection with any
scheduled Monthly Payment that constitutes a permanent forgiveness of principal,
which valuation or reduction results from a proceeding under the Bankruptcy
Code.
DEFINITIVE BONDS: The meaning specified in Section 4.06 of the
Indenture.
DELETED MORTGAGE LOAN: A Mortgage Loan replaced or to be
replaced with an Eligible Substitute Mortgage Loan.
DELINQUENCY PERCENTAGE: As of the last day of any Due Period
and with respect to the Mortgage Loans, the percentage equivalent of a fraction,
the numerator of which equals the aggregate Principal Balance of the Mortgage
Loans that are 60 or more days delinquent, in foreclosure or converted to REO
Properties as of such last day of such Due Period, and the denominator of which
is the aggregate Principal Balance of the Mortgage Loans as of the last day of
such Due Period.
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DEPOSITOR: IMH Assets Corp., a California corporation, or its
successor in interest.
DEPOSITORY OR DEPOSITORY AGENCY: The Depository Trust Company
or a successor appointed by the Indenture Trustee. Any successor to the
Depository shall be an organization registered as a "clearing agency" pursuant
to Section 17A of the Exchange Act and the regulations of the Securities and
Exchange Commission thereunder.
DEPOSITORY PARTICIPANT: A Person for whom, from time to time,
the Depository effects book-entry transfers and pledges of securities deposited
with the Depository.
DETERMINATION DATE: With respect to any Payment Date, the 15th
of the related month, or if the 15th day of such month is not a Business Day,
the immediately preceding Business Day.
DETERMINATION DATE REPORT: The report prepared by the Master
Servicer pursuant to Section 4.01 of the Servicing Agreement.
DUE DATE: The date on which the Monthly Payment on the related
Mortgage Loan is due in accordance with the terms of the related Mortgage Note.
DUE PERIOD: With respect to any Payment Date and the ARM
Loans, the period commencing on the second day of the month preceding the month
of such Payment Date (or, with respect to the first Due Period, the day
following the Cut-Off Date) and ending on the first day of the month of such
Payment Date. With respect to any Payment Date and the High LTV Loans, the
period is the calendar month preceding the month of such Payment Date.
ELIGIBLE ACCOUNT: An account that is any of the following: (i)
maintained with a depository institution the short term deposits of which have
been rated by each Rating Agency in its highest rating available, or (ii) an
account or accounts in a depository institution in which such accounts are fully
insured to the limits established by the FDIC, PROVIDED that any deposits not so
insured shall, to the extent acceptable to the Bond Insurer and each Rating
Agency, as evidenced in writing, be maintained such that (as evidenced by an
Opinion of Counsel delivered to the Indenture Trustee, the Bond Insurer and each
Rating Agency) the Indenture Trustee has a claim with respect to the funds in
such account or a perfected first security interest against any collateral
(which shall be limited to Eligible Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution with which such account is main tained, or (iii) in the case of the
Collection Account, either (A) a trust account or accounts maintained at the
Corporate Trust Department of the Indenture Trustee or (B) an account or
accounts maintained at the Corporate Trust Department of the Indenture Trustee,
as long as its short term debt obligations are rated P-1 by Xxxxx'x and A-1 by
Standard & Poor's or better and its long term debt obligations are rated A2 by
Xxxxx'x and A by Standard & Poor's or better, or (iv) in the case of the
Collection Account and the Payment Account, a trust account or accounts
maintained in the corporate trust division of the Indenture Trustee, or (v) an
account or accounts of a depository institution acceptable to each Rating Agency
as evidenced in writing by each
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Rating Agency that use of any such account as the Collection Account or the
Payment Account will not reduce the rating assigned to any of the Securities by
such Rating Agency below investment grade without taking into account the
related Bond Insurance Policy and acceptable to
the Bond Insurer as evidenced in writing.
ELIGIBLE INVESTMENTS: One or more of the following:
(i) direct obligations of, and obligations fully
guaranteed by, the United States of America, the Federal Home Mortgage
Corporation, the Federal National Mortgage Association, the Federal
Home Loan Banks or any agency or instrumentality of the United States
of America the obligations of which are backed by the full faith and
credit of the United States of America;
(ii) (A) demand and time deposits in, certificates of
deposit of, banker's acceptances issued by or federal funds sold by any
depository institution or trust company (including the Indenture
Trustee or its agent acting in their respective commercial capacities)
incorporated under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
and/or state authorities, so long as at the time of such investment or
contractual commitment providing for such investment, such depository
institution or trust company has a short term unsecured debt rating in
the highest available rating category of each of the Rating Agencies
and provided that each such investment has an original maturity of no
more than 365 days, and (B) any other demand or time deposit or deposit
which is fully insured by the FDIC;
(iii) repurchase obligations with a term not to exceed 30
days with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting as
a principal) rated "A" or higher by Standard & Poor's and A2 or higher
by Xxxxx'x; provided, however, that collateral transferred pursuant to
such repurchase obligation must (A) be valued weekly at current market
price plus accrued interest, (B) pursuant to such valuation, equal, at
all times, 105% of the cash transferred by the Indenture Trustee in
exchange for such collateral and (C) be delivered to the Indenture
Trustee or, if the Indenture Trustee is supplying the collateral, an
agent for the Indenture Trustee, in such a manner as to accomplish
perfection of a security interest in the collateral by possession of
certificated securities.
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any State thereof which has a long term unsecured
debt rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
(v) commercial paper having an original maturity of
less than 365 days and issued by an institution having a short term
unsecured debt rating in the highest available rating category of each
of the Rating Agencies at the time of such investment;
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(vi) a guaranteed investment contract approved by each
of the Rating Agencies and the Bond Insurer and issued by an insurance
company or other corporation having a long term unsecured debt rating
in the highest available rating category of each
of the Rating Agencies at the time of such investment;
(vii) money market funds having ratings in the highest
available long-term rating category of each of the Rating Agencies at
the time of such investment; any such money market funds which provide
for demand withdrawals being conclusively deemed to satisfy any
maturity requirement for Eligible Investments set forth in the
Indenture; and
(viii) any investment approved in writing by each of the
Rating Agencies and the Bond Insurer.
The Indenture Trustee may purchase from or sell to itself or an affiliate, as
principal or agent, the Eligible Investments listed above.
PROVIDED, HOWEVER, that each such instrument shall be acquired in an arm's
length transaction and no such instrument shall be an Eligible Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations; PROVIDED FURTHER, HOWEVER, that each such instrument acquired shall
not be acquired at a price in excess of par.
ELIGIBLE SUBSTITUTE MORTGAGE LOAN: A Mortgage Loan substituted
by the Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in an Officer's Certificate delivered to the
Indenture Trustee, (i) have an outstanding principal balance, after deduction of
the principal portion of the monthly payment due in the month of substitution
(or in the case of a substitution of more than one Mortgage Loan for a Deleted
Mortgage Loan, an aggregate outstanding principal balance, after such
deduction), not in excess of the outstanding principal balance of the Deleted
Mortgage Loan (the amount of any shortfall to be deposited by the Seller in the
Collection Account in the month of substitution); (ii)(A) if such Mortgage Loan
is an ARM Loan, comply with each representation and warranty set forth in
clauses (i) through (lxiii) of Section 3.1(b) of the Mortgage Loan Sale and
Contribution Agreement other than clauses (ii) through (xiii) and clause (lvii)
thereof or (B) if such Mortgage Loan is a High LTV Loan, comply with each
representation and warranty set forth in clauses (i) through (lix) of Section
3.1(c) of the Mortgage Loan Sale and Contribution Agreement other than clauses
(ii) through and (xiii) and clause (lvi) thereof, in each case as of the date of
substitution; (iii) have a Mortgage Rate no lower than and not more than 1% per
annum higher than the Mortgage Rate of the Deleted Mortgage Loan as of the date
of substitution; (iv) have a Loan-to-Value Ratio and a Combined Loan-to-Value
Ratio at the time of substitution no higher than that of the Deleted Mortgage
Loan at the time of substitution; (v) have a remaining term to stated maturity
not greater than (and not more than one year less than) that of the Deleted
Mortgage Loan, (vi) not be 30 days or more delinquent and (vii) not be a
CondoSelect Loan or Convertible Mortgage Loan.
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ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
EVENT OF DEFAULT: With respect to the Indenture, any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) a default in (a) the payment of Accrued Bond
Interest on any class of Bonds or the Bond Principal Distribution
Amount with respect to a Payment Date on such Payment Date or (b) the
Unpaid Interest Shortfall with respect to any class of Bonds, but only,
with respect to clause (b), to the extent funds are available to make
such payment as provided in the Indenture; or
(ii) the failure by the Issuer on the Final Scheduled
Payment Date to reduce the Bond Principal Balance to zero; or
(iii) there occurs a default in the observance or
performance of any covenant or agreement of the Issuer made in the
Indenture, or any representation or warranty of the Issuer made in the
Indenture or in any certificate or other writing delivered pursuant
hereto or in connection herewith proving to have been incorrect in any
material respect as of the time when the same shall have been made, and
such default shall continue or not be cured, or the circumstance or
condition in respect of which such representation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the Issuer
and the Indenture Trustee by the Bond Insurer, or if a Bond Insurer
Default exists the Holders of at least 25% of the aggregate Bond
Principal Balance of the Outstanding Bonds, a written notice specifying
such default or incorrect representation or warranty and requiring it
to be remedied and stating that such notice is a notice of default
hereunder; or
(iv) there occurs the filing of a decree or order for
relief by a court having jurisdiction in the premises in respect of the
Issuer or any substantial part of the Trust Estate in an involuntary
case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or for any substantial part of the Trust Estate,
or ordering the winding-up or liquidation of the Issuer's affairs, and
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(v) there occurs the commencement by the Issuer of a
voluntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the
consent by the Issuer to the entry of an order for relief in an
involuntary case under any such law, or the consent by the Issuer to
the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or
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similar official of the Issuer or for any substantial part of the
assets of the Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of
any action by the Issuer in furtherance of any of the foregoing.
EVENT OF SERVICER TERMINATION: With respect to the Servicing
Agreement, a Servicing Default as defined in Section 6.01 of the Servicing
Agreement.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
EXPENSE FEE RATE: With respect to each Mortgage Loan, the sum
of the Servicing Fee Rate, the Indenture Trustee Fee Rate, the Owner Trustee Fee
Rate and, if applicable, the CMAC PMI Policy Rate.
EXPENSES: The meaning specified in Section 7.02 of the Trust
Agreement.
FDIC: The Federal Deposit Insurance Corporation or any
successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
FINAL DISPOSITION: With respect to a defaulted Mortgage Loan,
upon a determination by the Master Servicer that it has received all Insurance
Proceeds, Liquidation Proceeds and other payments or cash recoveries which the
Master Servicer reasonably and in good faith expects to be finally recoverable
with respect to such Mortgage Loan.
FINAL SCHEDULED PAYMENT DATE: With respect to the Class A-1
Bonds, the Payment Date in March 2029. With respect to the Class A-2 Bonds, the
Payment Date in June 2023.
FNMA: The Federal National Mortgage Association, or any
successor thereto.
FORECLOSURE PROFIT: With respect to a Liquidated Mortgage
Loan, the amount, if any, by which (i) the aggregate of its Net Liquidation
Proceeds exceeds (ii) the related Principal Balance (plus accrued and unpaid
interest thereon at the applicable Mortgage Rate from the date interest was last
paid through the date of receipt of the final Liquidation Proceeds) of such
Liquidated Mortgage Loan immediately prior to the final recovery of its
Liquidation Proceeds.
GRANT: Pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of such collateral
17
or other agreement or instrument and all other moneys payable thereunder, to
give and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring proceedings in the name
of the granting party or otherwise, and generally to do and receive anything
that the granting party is or may be entitled to do or receive thereunder or
with respect thereto.
GROSS MARGIN: With respect to any Mortgage Loan, the
percentage set forth as the "Gross Margin" for such Mortgage Loan on the
Mortgage Loan Schedule, as adjusted from time to time in accordance with the
terms of the Servicing Agreement.
HIGH LTV LOANS: At any time, collectively, all the mortgage
loans that have been sold to the Depositor under the Mortgage Loan Sale and
Contribution Agreement which have fixed rates and will be secured by second or
third liens on the related Mortgage Property.
HIGH LTV POOL: The High LTV Loans in the aggregate.
HIGH LTV POOL AVAILABLE FUNDS: With respect to any Payment
Date, the sum of the following, in each case with respect to the High LTV Loans:
(i) each previously undistributed Monthly Payment due after
the Cut-off Date received on or prior to the related Determination Date
or advanced prior to such Payment Date (other than Monthly Payments due
after the related Collection Period, which shall be treated as if
received during the Due Period they were due) on each Outstanding
Mortgage Loan in the High LTV Pool (less the related Servicing Fees,
any subservicing fees under any Subservicing Agreement and any fees or
penalties retained by the Servicer or any subservicer, the fees of the
Owner Trustee and the Indenture Trustee and the premium with respect to
the related Bond Insurance Policy);
(ii) all proceeds of any High LTV Loan repurchased during the
related Collection Period (or deemed to have been so repurchased in
accordance with the Servicing Agreement) pursuant to the Servicing
Agreement and the amount of any shortfall deposited in the Collection
Account in connection with the substitution of a Deleted Mortgage Loan
pursuant to the Servicing Agreement during the related Collection
Period; and
(iii) all other unscheduled collections (including, without
limitation, Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related Collection
Period (or deemed to have been so received) to the extent applied by
the Master Servicer as recoveries of principal of the related High LTV
Loan pursuant to the Servicing Agreement;
(iv) interest on amounts in the Collection Account in respect
of deposits from the High LTV Loans;
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(v) any fees or penalties on the High LTV Loans, including
prepayment penalties and assumption fees, not retained by any
Subservicer pursuant to the terms of the related Subservicing
Agreement;
(vi) any amounts received with respect to a High LTV Loan that
was 180 or more days delinquent in payment of interest (including
amounts with respect to principal); and
(vii) the High LTV Pool Cap Contract Payment Amount;
MINUS
(viii) expenses incurred by and reimbursable to the Master
Servicer or the Depositor pursuant to the Servicing Agreement or
otherwise, or in connection with enforcing any repurchase, substitution
or indemnification obligation of the Seller (other than an Affiliate of
the Depositor) in respect of a High LTV Loan;
(ix) amounts expended by the Master Servicer (a) pursuant to
the Servicing Agreement in good faith in connection with the
restoration of property related to a High LTV Loan damaged by an
Uninsured Cause, and (b) in connection with the liquidation of a High
LTV Loan or disposition of an REO Property related to a High LTV Loan
to the extent not otherwise reimbursed to the Master Servicer pursuant
to the Servicing Agreement; and
(x) if the Bonds have been declared due and payable
following an Event of Default on such Payment Date, any
amounts owed to the Indenture Trustee by the Issuer
pursuant to Section 6.07 of the Indenture.
HIGH LTV POOL BASIS RISK SHORTFALL: On each Payment Date, the
excess, if any, of (x) Accrued Bond Interest on the Class A-2 Bonds calculated
pursuant to clause (i) of the definition of Bond Interest Rate thereof over (y)
interest accrued on the related Mortgage Loans at the Class A-2 Available Funds
Rate.
HIGH LTV POOL BASIS RISK SHORTFALL CARRY-FORWARD AMOUNT: For
any Payment Date, an amount equal to the aggregate amount of High LTV Pool Basis
Risk Shortfall for the Class A-2 Bonds on such Payment Date, plus any unpaid
High LTV Pool Basis Risk Shortfall from prior Payment Dates, plus interest
thereon at the related Bond Interest Rate for such Payment Date, to the extent
previously unreimbursed by the High LTV Pool Net Monthly Excess Cash Flow.
HIGH LTV POOL CAP CONTRACT PAYMENT AMOUNT: With respect to any
Payment Date, the amount payable by the Cap Counterparty under the Cap Contract
based upon the Confirmation attached as Exhibit I and related to Transaction
1736/1827/1828/1829/1830.
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HIGH LTV POOL EXCESS OVERCOLLATERALIZATION AMOUNT: With
respect to any Payment Date, the excess, if any, of (a) the High LTV Pool
Overcollateralization Amount that would apply on such Payment Date after taking
into account all distributions to be made on such Payment Date over (b) the High
LTV Pool Required Overcollateralization Amount for such Payment Date.
HIGH LTV POOL INSURED AMOUNT: Shall have the meaning assigned
to the term "Insured Amount" in the Bond Insurance Policy applicable to the
Class A-2 Bonds.
HIGH LTV POOL NET MONTHLY EXCESS CASH FLOW: For any Payment
Date, the amount as defined in Section 3.05(c)(iv) of the Indenture.
HIGH LTV POOL OVERCOLLATERALIZATION AMOUNT: As of any Payment
Date, the excess, if any, of (a) the aggregate Principal Balances of the High
LTV Loans immediately following such Payment Date over (b) the Bond Principal
Balance of the Class A-2 Bonds as of such Payment Date (after taking into
account the payments to the Class A-2 Bonds of the High
LTV Pool Principal Payment Amount).
HIGH LTV POOL OVERCOLLATERALIZATION DEFICIT: As of any Payment
Date, the excess, if any, of (a) the Bond Principal Balance of the Class A-2
Bonds as of such Payment Date (after taking into account the payments to the
Class A-2 Bonds of the High LTV Pool Principal Payment Amount) over (b) the
aggregate Principal Balances of the High LTV Loans immediately following such
Payment Date.
HIGH LTV POOL OVERCOLLATERALIZATION INCREASE AMOUNT: On any
Payment Date, an amount equal to the lesser of (i) the High LTV Pool Available
Funds and any Insured Amount and Reserve Fund Release Amount in respect of the
Class A-2 Bonds after distributions pursuant to Section 3.05(c)(i) through (iii)
of the Indenture and (ii) the excess of (a) the High LTV Pool Required
Overcollateralization Amount for such Payment Date over (b) the High LTV Pool
Overcollateralization Amount that would apply on such Payment Date after taking
into account all distributions to be made on such Payment Date.
HIGH LTV POOL OVERCOLLATERALIZATION REDUCTION AMOUNT: As of
any Payment Date, any High LTV Pool Excess Overcollateralization Amount as of
such Payment Date after distribution of the High LTV Pool Principal Payment
Amount on such Payment Date.
HIGH LTV POOL PRINCIPAL PAYMENT AMOUNT: With respect to any
Payment Date, the sum of the following, in each case with respect to the High
LTV Loans:
(i) the principal portion of each previously undistributed
Monthly Payment due after the Cut-Off Date received on or prior to the
related Determination Date or advanced prior to such Payment Date
(other than Monthly Payments due after the related Collection Period,
which shall be treated as if received during the Due Period they were
due) on each Outstanding Mortgage Loan in the High LTV Pool;
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(ii) the principal portion of all proceeds of any High LTV
Loan repurchased during the related Collection Period (or deemed to
have been so repurchased in accordance with the Servicing Agreement)
pursuant to the Servicing Agreement and the amount of any shortfall
deposited in the Collection Account in connection with the substitution
of a Deleted Mortgage Loan pursuant to the Servicing Agreement during
the related Collection Period;
(iii) the principal portion of all other unscheduled
collections (including, without limitation, Principal Prepayments,
Insurance Proceeds, Liquidation Proceeds and REO Proceeds) received
during the related Collection Period (or deemed to have been so
received) to the extent applied by the Master Servicer as recoveries of
principal of the related High LTV Loan pursuant to the Servicing
Agreement; and
(iv) the portion of any High LTV Pool Insured Amount or
Reserve Fund Release Amount for such Payment Date in respect of any
High LTV Pool Overcollateralization
Deficit;
MINUS
(v) the amount of any High LTV Pool Overcollateralization
Reduction Amount for such Payment Date.
HIGH LTV POOL NET MONTHLY EXCESS CASH FLOW: For any Payment
Date, the amount as defined in Section 3.05(c)(iv) of the Indenture.
HIGH LTV POOL REQUIRED OVERCOLLATERALIZATION AMOUNT: With
respect to any Payment Date, (i) prior to the High LTV Pool Step-Down Date,
16.50% of the High LTV Pool Cut-off Date Balance, and (ii) on or after the High
LTV Pool Step-Down Date, the greater of (x) 33.00% of the then current aggregate
Principal Balance of the High LTV Loans as of the end of the related Due Period
and (y) 3.00% of the High LTV Pool Cut-off Date Balance; provided that the High
LTV Pool Required Overcollateralization Amount shall not be reduced on any
Payment Date after the Step-Down Date unless (i) cumulative losses on the High
LTV Loans are less than 7.00% of the High LTV Pool Cut-off Date Balance in March
2003 (or 8.00% and 9.00% in March 2004, and March 2005 or thereafter,
respectively), and (ii) the average losses on the High LTV Loans over the past
six Payment Dates is less than one-half of the average High LTV Pool Net Monthly
Excess Cash Flow over the past six Payment Dates; and provided further, that the
High LTV Pool Required Overcollateralization Amount shall be unlimited on any
Payment Date where the aggregate Realized Losses for the prior twelve months
exceeds 5.00% of the aggregate Principal Balance of the High LTV Loans as of the
first day of such twelve-month period.
HIGH LTV POOL RESERVE FUND ADDITION: With respect to any
Payment Date, if, following distributions to be made with respect to such
Payment Date, the High LTV Pool Overcollateralization Amount is equal to the
High LTV Pool Required Overcollateralization Amount, the excess, if any, of (i)
the sum of ARM Pool Required Overcollateralization Amount
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and the High LTV Pool Required Overcollateralization Amount over (ii) the sum of
ARM Pool Overcollateralization Amount, the High LTV Pool Overcollateralization
Amount and the amount in the Reserve Fund.
HIGH LTV POOL STEP-DOWN DATE: The later of (i) the first
Payment Date occurring after February 2003 and (ii) the first Payment Date on
which the Principal Balance of the High LTV Loans is equal to or less than 50%
of the High LTV Pool Cut-off Date Balance.
IMPAC HOLDINGS: Impac Mortgage Holdings, Inc. (formerly known
as Imperial Credit Mortgage Holdings, Inc.), a Maryland corporation, and its
successors and assigns.
INDEMNIFIED PARTY: The meaning specified in Section 7.02 of
the Trust Agreement.
INDENTURE: The indenture dated as of February 26, 1999,
between the Issuer, as debtor, and the Indenture Trustee, as Indenture Trustee,
relating to the Impac CMB Trust Series 1999-1 Bonds.
INDENTURE TRUSTEE: LaSalle National Bank, and its successors
and assigns or any successor indenture trustee appointed pursuant to the terms
of the Indenture.
INDENTURE TRUSTEE FEE: With respect to each Mortgage Loan and
any Payment Date the product of (i) the Indenture Trustee Fee Rate divided by 12
and (ii) the Principal Balance of such Mortgage Loans as of the first day of the
related Due Period (with respect to an ARM Loan) or Collection Period (with
respect to a High LTV Loan).
INDENTURE TRUSTEE FEE RATE: 0.0125% per annum.
INDEPENDENT: When used with respect to any specified Person,
the Person (i) is in fact independent of the Issuer, any other obligor on the
Bonds, the Seller, the Issuer, the Depositor and any Affiliate of any of the
foregoing Persons, (ii) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor, the
Seller, the Issuer, the Depositor or any Affiliate of any of the foregoing
Persons and (iii) is not connected with the Issuer, any such other obligor, the
Seller, the Issuer, the Depositor or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
INDEPENDENT CERTIFICATE: A certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 10.01 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Request and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read the definition of "Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
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INDEX: With respect to any ARM Loan, the index for the
adjustment of the Mortgage Rate set forth as such on the related Mortgage Note.
INITIAL BOND PRINCIPAL BALANCE: With respect to the Class A-1
Bonds, $64,875,807.00, and with respect to the Class A-2 Bonds, $121,203,862.00.
INITIAL SUBSERVICER: With respect to the Mortgage Loans,
Xxxxxxxx.
INSOLVENCY EVENT: With respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or ordering the winding-up or liquidation of
such Person's affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or (b) the commencement by such
Person of a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by such Person to the
entry of an order for relief in an involuntary case under any such law, or the
consent by such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or the making by such
Person of any general assignment for the benefit of creditors, or the failure by
such Person generally to pay its debts as such debts become due or the admission
by such Person in writing (as to which the Indenture Trustee shall have notice)
of its inability to pay its debts generally, or the adoption by the Board of
Directors or managing member of such Person of a resolution which authorizes
action by such Person in furtherance of any of the foregoing.
INSURANCE AGREEMENT: The Insurance and Indemnity Agreement
dated as of February 26, 1999, among the Master Servicer, the Seller, the
Depositor, the Issuer, Impac Holdings, the Indenture Trustee and the Bond
Insurer, including any amendments and supplements thereto.
INSURANCE PROCEEDS: Proceeds paid by any insurer pursuant to
any insurance policy covering a Mortgage Loan which are required to be remitted
to the Master Servicer, net of any component thereof (i) covering any expenses
incurred by or on behalf of the Master Servicer in connection with obtaining
such proceeds, (ii) that is applied to the restoration or repair of the related
Mortgaged Property or (iii) released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures.
INSURED AMOUNT: An ARM Pool Insured Amount or High LTV Pool
Insured Amount, as applicable.
INTEREST DETERMINATION DATE: With respect to any Accrual
Period, the second LIBOR Business Day preceding the commencement of such Accrual
Period.
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INTEREST RATE ADJUSTMENT DATE: With respect to each ARM Loan,
the date or dates on which the Mortgage Rate is adjusted in accordance with the
related Mortgage Note.
INVESTMENT COMPANY ACT: The Investment Company Act of 1940, as
amended, and any amendments thereto.
ISSUER: Impac CMB Trust Series 1999-1, a Delaware business
trust, or its successor in interest.
ISSUER REQUEST: A written order or request signed in the name
of the Issuer by any one of its Authorized Officers and approved in writing by
the Bond Insurer, so long as no Bond Insurer Default exists, and delivered to
the Indenture Trustee.
LIBOR BUSINESS DAY: Any day other than (i) a Saturday or a
Sunday or (ii) a day on which banking institutions in the State of New York or
in the city of London, England are required or authorized by law to be closed.
LIEN: Any mortgage, deed of trust, pledge, conveyance,
hypothecation, assignment, participation, deposit arrangement, encumbrance, lien
(statutory or other), preference, priority right or interest or other security
agreement or preferential arrangement of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agree ment, any financing lease having substantially the same economic effect as
any of the foregoing and the filing of any financing statement under the UCC
(other than any such financing statement filed for informational purposes only)
or comparable law of any jurisdiction to evidence any of the foregoing;
PROVIDED, HOWEVER, that any assignment pursuant to Section 6.02 of the Servicing
Agreement shall not be deemed to constitute a Lien.
LIFETIME RATE CAP: With respect to each ARM Loan with respect
to which the related Mortgage Note provides for a lifetime rate cap, the maximum
Mortgage Rate permitted over the life of such Mortgage Loan under the terms of
such Mortgage Note, as set forth on the Mortgage Loan Schedule and initially as
set forth on Exhibit A to the Servicing Agreement.
LIQUIDATED MORTGAGE LOAN: With respect to any Payment Date,
any Mortgage Loan in respect of which the Master Servicer has determined, in
accordance with the servicing procedures specified in the Servicing Agreement,
as of the end of the related Due Period that substantially all Liquidation
Proceeds which it reasonably expects to recover with respect to the disposition
of the related Mortgaged Property or REO Property have been recovered. In
addition, the Master Servicer will treat any High LTV Loan that is 180 days or
more delinquent as having been finally liquidated.
LIQUIDATION EXPENSES: Out-of-pocket expenses (exclusive of
overhead) which are incurred by or on behalf of the Master Servicer in
connection with the liquidation of any Mortgage Loan and not recovered under any
insurance policy, such expenses including, without limitation, legal fees and
expenses, any unreimbursed amount expended (including, without limitation,
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amounts advanced to correct defaults on any mortgage loan which is senior to
such Mortgage Loan and amounts advanced to keep current or pay off a mortgage
loan that is senior to such Mortgage Loan) respecting the related Mortgage Loan
and any related and unreimbursed expenditures for real estate property taxes or
for property restoration, preservation or insurance against casualty loss or
damage.
LIQUIDATION PROCEEDS: Proceeds (including Insurance Proceeds)
received in connection with the liquidation of any Mortgage Loan or related REO
Property, whether through trustee's sale, foreclosure sale or otherwise.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan, as of
any date of determination, a fraction expressed as a percentage, the numerator
of which is the then current principal amount of the Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
LOAN YEAR: With respect to any ARM Loan, the one year period
commencing on the day succeeding the origination of such Mortgage Loan and
ending on the anniversary date of such Mortgage Loan, and each annual period
thereafter.
LONDON BUSINESS DAY: Any day on which banks in the City of
London, England are open and conducting transactions in United States dollars.
LOST NOTE AFFIDAVIT: With respect to any Mortgage Loan as to
which the original Mortgage Note has been lost or destroyed and has not been
replaced, an affidavit from the Seller certifying that the original Mortgage
Note has been lost, misplaced or destroyed (together with a copy of the related
Mortgage Note).
MASTER SERVICER: Impac Funding Corporation, a California
corporation, and its successors and assigns.
MASTER SERVICING FEE: With respect to each Mortgage Loan and
any Payment Date the product of (i) the Servicing Fee Rate divided by 12 and
(ii) the Principal Balance of such Mortgage Loans as of the first day of the
related Due Period (with respect to an ARM Loan) or
Collection Period (with respect to a High LTV Loan).
MASTER SERVICING FEE RATE: With respect to any Mortgage Loan,
0.05% per annum.
MAXIMUM CLASS A-1 BOND RATE: 12.25% per annum.
MAXIMUM CLASS A-2 BOND RATE: 15.00% per annum.
MAXIMUM MORTGAGE RATE: With respect to each ARM Loan, the
maximum Mortgage Rate.
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MINIMUM MORTGAGE RATE: With respect to each ARM Loan, the
minimum Mortgage Rate.
MONTHLY PAYMENT: With respect to any Mortgage Loan (including
any REO Property) and any Due Date, the payment of principal and interest due
thereon in accordance with the amortization schedule at the time applicable
thereto (after adjustment, if any, for partial Prepayments and for Deficient
Valuations occurring prior to such Due Date but before any adjustment to such
amortization schedule by reason of any bankruptcy, other than a Deficient
Valuation, or similar proceeding or any moratorium or similar waiver or grace
period).
MOODY'S: Xxxxx'x Investors Service, Inc. or its successor in
interest.
MORTGAGE: The mortgage, deed of trust or other instrument
creating a first lien on an estate in fee simple interest in real property
securing a Mortgage Loan.
MORTGAGE FILE: The file containing the Related Documents
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to the Mortgage Loan Sale and
Contribution Agreement or the Servicing Agreement.
MORTGAGE LOAN SALE AND CONTRIBUTION AGREEMENT: The Mortgage
Loan Sale and Contribution Agreement, dated as of the Cut-Off Date, between the
Seller, as seller, and the Purchaser, as purchaser, relating to the sale,
transfer and assignment of the Mortgage Loans.
MORTGAGE LOAN SCHEDULE: With respect to any date, the schedule
of Mortgage Loans held by the Issuer on such date. The initial schedule of
Mortgage Loans as of the Cut-Off Date is the schedule set forth in Exhibit A of
the Servicing Agreement, which schedule sets forth
as to each Mortgage Loan:
(i) the loan number and name of the Mortgagor;
(ii) the street address, city, state and zip code of the
Mortgaged Property;
(iii) the original Mortgage Rate;
(iv) the maturity date;
(v) the original principal balance;
(vi) the first payment date;
(vii) the type of Mortgaged Property;
(viii) the Monthly Payment in effect as of the Cut-Off Date;
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(ix) the Cut-off Date Principal Balance;
(x) the Index and the Gross Margin, if applicable;
(xi) the Adjustment Date frequency and Payment Date
frequency, if applicable;
(xii) the occupancy status;
(xiii) the purpose of the Mortgage Loan;
(xiv) the Appraised Value of the Mortgaged Property;
(xv) (A) the original term to maturity and (B) if such
Mortgage Loan is a Balloon Loan, the amortization
term thereof;
(xvi) the paid-through date of the Mortgage Loan;
(xvii) whether the Mortgage Loan is a Balloon Mortgage Loan
or a Mortgage Loan the terms of which do not provide
for a Balloon Payment;
(xviii) the Loan-to-Value Ratio or Combined Loan-to-Value
Ratio (as applicable);
(xix) whether such Mortgage Loan is a CondoSelect Loan,
High LTV Loan, or Convertible Mortgage Loan; and
(xx) whether or not the Mortgage Loan was underwritten
pursuant to a limited documentation program.
The Mortgage Loan Schedule shall also set forth the total of
the amounts described under (ix) above for all of the Mortgage Loans.
MORTGAGE LOANS: At any time, collectively, all the mortgage
loans that have been sold to the Depositor under the Mortgage Loan Sale and
Contribution Agreement or substituted for pursuant to Section 2.1 and 3.1 of the
Mortgage Loan Sale and Contribution Agreement and transferred and conveyed to
the Issuer and contributed to the Trust, in each case together with the Related
Documents, and that remain subject to the terms thereof.
MORTGAGE NOTE: The note or other evidence of the indebtedness
of a Mortgagor under a Mortgage Loan.
MORTGAGE RATE: With respect to any Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan.
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MORTGAGED PROPERTY: The underlying property, including real
property and improvements thereon, securing a Mortgage Loan.
MORTGAGOR: The obligor or obligors under a Mortgage Note.
NET DELINQUENCY AMOUNT: With respect to any Payment Date, the
excess, if any, of (x) the product of 1.20 and the Six-Month Rolling Delinquency
Average over (y) the aggregate of the Net Monthly Excess Interest Amount for the
three preceding Payments Dates.
NET LIQUIDATION PROCEEDS: With respect to any Liquidated
Mortgage Loan, Liquidation Proceeds net of Liquidation Expenses.
NET MORTGAGE RATE: With respect to any Mortgage Loan and any
day, the related Mortgage Rate less the Expense Fee Rate.
NONRECOVERABLE ADVANCE: Any advance (i) which was previously
made or is proposed to be made by the Master Servicer; and (ii) which, in the
good faith judgment of the Master Servicer, will not or, in the case of a
proposed advance, would not, be ultimately recoverable by the Master Servicer
from Liquidation Proceeds, Insurance Proceeds or future payments on any Mortgage
Loan. The Indenture Trustee may conclusively rely on any determination of
nonrecoverability made by the Master Servicer.
OFFICER'S CERTIFICATE: With respect to the Master Servicer, a
certificate signed by the President, Managing Director, a Director, a Vice
President or an Assistant Vice President, of the Master Servicer and delivered
to the Indenture Trustee. With respect to the Issuer, a certificate signed by
any Authorized Officer of the Issuer, under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 10.01 of the
Indenture, and delivered to the Indenture Trustee. Unless otherwise specified,
any reference in the Indenture to an Officer's Certificate shall be to an
Officer's Certificate of any Authorized Officer of the Issuer.
ONE-MONTH LIBOR: With respect to the first Accrual Period,
4.9400% per annum and with respect to any Accrual Period other than the first
Accrual Period, the rate determined by the Indenture Trustee on the related
Interest Determination Date on the basis of the offered rates of the Reference
Banks for one-month United States dollar deposits, as such rates appear on the
Reuters Screen LIBO Page, as of 11:00 a.m. (London time) on such Interest
Determination Date. On each Interest Determination Date, One-Month LIBOR for the
related Accrual Period will be established by the Indenture Trustee as follows:
(i) If on such Interest Determination Date two or more
Reference Banks provide such offered quotations,
One-Month LIBOR for the related Accrual Period shall
be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole
multiple of 1/16%).
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(ii) If on such Interest Determination Date fewer than two
Reference Banks provide such offered quotations,
One-Month LIBOR for the related Accrual Period shall
be the higher of (i) One-Month LIBOR as determined on
the previous Interest Determination Date and (ii) the
Reserve Interest Rate.
OPINION OF COUNSEL: A written opinion of counsel acceptable to
the Bond Insurer in its reasonable discretion who may be in-house counsel for
the Master Servicer if acceptable to the Indenture Trustee, the Bond Insurer and
the Rating Agencies or counsel for the Depositor, as the case may be.
ORIGINAL VALUE: Except in the case of a refinanced Mortgage
Loan, the lesser of the Appraised Value or sales price of Mortgaged Property at
the time a Mortgage Loan is closed, and for a refinanced Mortgage Loan, the
Original Value is the value of such property set forth in
an appraisal acceptable to the Master Servicer.
OUTSTANDING: With respect to the Bonds, as of the date of
determination, all Bonds theretofore executed, authenticated and delivered under
this Indenture except:
(i) Bonds theretofore canceled by the Bond Registrar or
delivered to the Indenture Trustee for cancellation; and
(ii) Bonds in exchange for or in lieu of which other
Bonds have been executed, authenticated and delivered pursuant to the
Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Bonds are held by a holder in due course;
all Bonds that have been paid with funds provided under the related Bond
Insurance Policy shall be deemed to be Outstanding until the Bond Insurer has
been reimbursed with respect thereto.
OUTSTANDING MORTGAGE LOAN: As to any Due Date, a Mortgage Loan
(including an REO Property) which was not (i) the subject of a Principal
Prepayment in Full, Cash Liquidation or REO Disposition and which was not
purchased, deleted or substituted for prior to such Due Date pursuant to the
Servicing Agreement or (ii) with respect to a High LTV Loan, 180 days or more
delinquent during any preceding Collection Period as of such Payment Date.
OWNER TRUST ESTATE: The corpus of the Issuer created by the
Trust Agreement which consists of items referred to in Section 2.01 of the Trust
Agreement.
OWNER TRUSTEE: Wilmington Trust Company and its successors and
assigns or any successor owner trustee appointed pursuant to the terms of the
Trust Agreement.
OWNER TRUSTEE FEE: With respect to any Payment Date the
product of (i) the Owner Trustee Fee Rate divided by 12 and (ii) the Principal
Balance of such Mortgage Loans as of the
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first day of the related Due Period (with respect to an ARM Loan) or Collection
Period (with respect to a High LTV Loan).
OWNER TRUSTEE FEE RATE: 0.0017% per annum.
PAYING AGENT: Any paying agent or co-paying agent appointed
pursuant to Section 3.03 of the Indenture, which initially shall be the
Indenture Trustee.
PAYMENT ACCOUNT: The account established by the Indenture
Trustee pursuant to Section 3.01 of the Indenture. The Payment Account shall be
an Eligible Account.
PAYMENT DATE: The 25th day of each month, or if such day is
not a Business Day, then the next Business Day.
PERCENTAGE INTEREST: With respect to any Bond, the percentage
obtained by dividing the Bond Principal Balance of such Bond by the aggregate of
the Bond Principal Balances of all Bonds. With respect to any Certificate, the
percentage on the face thereof.
PERIODIC RATE CAP: With respect to any ARM Loan, the maximum
rate, if any, by which the Mortgage Rate on such Mortgage Loan can adjust on any
Adjustment Date, as stated in the related Mortgage Bond or Mortgage.
PERSON: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
POLICY PREMIUM RATE: With respect to any Payment Date, the
rate per annum at which the Premium Amount for the related Bond Insurance Policy
accrues, as specified in the Insurance Agreement.
POOL BALANCE: With respect to any date of determination, the
aggregate of the Principal Balances of all Mortgage Loans as of such date.
PREFERENCE AMOUNT: Any amount previously distributed to an
Owner on the Bonds that is recoverable and sought to be recovered as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code (11 U.S.C.), as amended from time to time, in accordance with a final
nonappealable order of a court having competent jurisdiction.
PREMIUM AMOUNT: The amount of premium due to the Bond Insurer
in accordance with the terms of the Insurance Agreement.
PREPAYMENT INTEREST SHORTFALL: As to any Payment Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the related Collection
Period, an amount equal to the excess of interest
30
accrued during the related Collection Period at the Mortgage Rate (less the
Servicing Fee Rate) on the Principal Balance of such Mortgage Loan over the sum
of the amount of interest (less interest at the related Expense Fee Rate) paid
by the Mortgagor for such Collection Period to the date of such Principal
Prepayment in Full and any Advances made by the Master Servicer pursuant to
Section 4.04 of the Servicing Agreement or (b) a partial Principal Prepayment
during the related Collection Period, an amount equal to the interest at the
Mortgage Rate (less the Servicing Fee Rate) during the related Collection Period
on the amount of such partial Principal Prepayment.
PREPAYMENT PERIOD: With respect to each ARM Loan and any
Payment Date, the prior calendar month.
PRIMARY INSURANCE POLICY: Each primary policy of mortgage
guaranty insurance issued by a Qualified Insurer or any replacement policy
therefor, including the CMAC PMI Policy.
PRINCIPAL BALANCE: With respect to any Mortgage Loan or
related REO Property, at any given time, (i) the Cut-off Date Principal Balance
of the Mortgage Loan, minus (ii) the sum of (a) the principal portion of the
Monthly Payments due with respect to such Mortgage Loan or REO Property during
each Due Period ending prior to the most recent Payment Date which were received
or with respect to which an Advance was made, and (b) all Principal Prepayments
with respect to such Mortgage Loan or REO Property, and all Insurance Proceeds,
Liquidation Proceeds and REO Proceeds, to the extent applied by the Master
Servicer as recoveries of principal in accordance with the Servicing Agreement
with respect to such Mortgage Loan or REO Property, and (c) if such Mortgage
Loan or related REO Property is an ARM Loan, any Realized Loss with respect
thereto, in each case to the extent paid, distributed or applied on any previous
Payment Date; provided, that any High LTV Loan that becomes 180 or more days
delinquent shall be treated as if it had a Principal Balance of zero.
PRINCIPAL PREPAYMENT: Any payment of principal or other
recovery on a Mortgage Loan, including a recovery that takes the form of
Liquidation Proceeds or Insurance Proceeds, which is received in advance of its
scheduled Due Date and is not accompanied by an amount as to interest
representing scheduled interest on such payment due on any date or dates in any
month or months subsequent to the month of prepayment.
PRINCIPAL PREPAYMENT IN FULL: Any Principal Prepayment made by
a Mortgagor of the entire principal balance of a Mortgage Loan.
PROCEEDING: Any suit in equity, action at law or other
judicial or administrative proceeding.
PROSPECTUS: The Prospectus Supplement, dated February 23,
1999, together with the attached Prospectus, dated February 23, 1999.
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PURCHASE PRICE: The meaning specified in Section 2.2(a) of the
Mortgage Loan Sale and Contribution Agreement.
PURCHASER: IMH Assets Corp., a California corporation, and its
successors and assigns.
QUALIFIED INSURER: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of business
and each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and to
write the insurance provided by the insurance policy issued by it, approved as
an insurer by the Master Servicer and as a FNMA-approved mortgage insurer.
RATING AGENCY: Any nationally recognized statistical rating
organization, or its successor, that rated the Bonds at the request of the
Depositor at the time of the initial issuance of the Bonds. Initially, Standard
& Poor's or Xxxxx'x. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, designated by the Bond Insurer
so long as no Bond Insurer Default exists, notice of which designation shall be
given to the Indenture Trustee. References herein to the highest short term
unsecured rating category of a Rating Agency shall mean A-1 or better in the
case of Standard & Poor's and P-1 or better in the case of Xxxxx'x and in the
case of any other Rating Agency shall mean such equivalent ratings. References
herein to the highest long-term rating category of a Rating Agency shall mean
"AAA" in the case of Standard & Poor's and "Aaa" in the case of Xxxxx'x and in
the case of any other Rating Agency, such equivalent rating.
REALIZED LOSS: With respect to each Mortgage Loan (or REO
Property) as to which a Cash Liquidation or REO Disposition has occurred, an
amount (not less than zero) equal to (i) the Principal Balance of the Mortgage
Loan (or REO Property) as of the date of Cash Liquidation or REO Disposition,
plus (ii) interest (and REO Imputed Interest, if any) at the Net Mortgage Rate
from the Due Date as to which interest was last paid or advanced to Bondholders
up to the last day of the month in which the Cash Liquidation (or REO
Disposition) occurred on the Principal Balance of such Mortgage Loan (or REO
Property) outstanding during each Due Period that such interest was not paid or
advanced, minus (iii) the proceeds, if any, received during the month in which
such Cash Liquidation (or REO Disposition) occurred, to the extent applied as
recoveries of interest at the Net Mortgage Rate and to principal of the Mortgage
Loan, net of the portion thereof reimbursable to the Master Servicer or any
Subservicer with respect to related Advances or expenses as to which the Master
Servicer or Subservicer is entitled to reimbursement thereunder but which have
not been previously reimbursed. With respect to each Mortgage Loan which has
become the subject of a Deficient Valuation, the difference between the
principal balance of the Mortgage Loan outstanding immediately prior to such
Deficient Valuation and the principal balance of the Mortgage Loan as reduced by
the Deficient Valuation. With respect to each Mortgage Loan which has become the
object of a Debt Service Reduction, the amount of such Debt Service Reduction.
With respect to each High LTV Loan (or related REO Property) which
32
became 180 or more days delinquent, an amount equal to the Principal Balance of
such High LTV Loan (or related REO Property) as of such date.
RECORD DATE: With respect to the Bonds and any Payment Date,
the last day of the calendar month preceding such Payment Date.
REFERENCE BANKS: Bankers Trust Company, Xxxxxxx'x Bank PLC,
The Bank of Tokyo and National Westminster Bank PLC and their successors in
interest; PROVIDED that if any of the foregoing banks are not suitable to serve
as a Reference Bank, then any leading banks selected by the Indenture Trustee
which are engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London, (ii)
not controlling, under the control of or under common control with the Company
or any Affiliate thereof, (iii) whose quotations appear on the Reuters Screen
LIBO Page on the relevant Interest Determination Date and (iv) which have been
designated as such by the Indenture Trustee.
REGISTERED HOLDER: The Person in whose name a Bond is
registered in the Bond Register on the applicable Record Date.
RELATED DOCUMENTS: With respect to each Mortgage Loan, the
documents specified in Section 2.1(b) of the Mortgage Loan Sale and Contribution
Agreement and any documents required to be added to such documents pursuant to
the Mortgage Loan Sale and Contribution Agreement, the Trust Agreement,
Indenture or the Servicing Agreement.
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
RELIEF ACT SHORTFALL: As to any Payment Date and any Mortgage
Loan (other than a Mortgage Loan relating to an REO Property), any shortfalls
relating to the Relief Act or similar legislation or regulations.
REO ACQUISITION: The acquisition by the Master Servicer on
behalf of the Indenture Trustee for the benefit of the Bondholders of any REO
Property pursuant to Section 3.13 of the Servicing Agreement.
REO DISPOSITION: As to any REO Property, a determination by
the Master Servicer that it has received substantially all Insurance Proceeds,
Liquidation Proceeds, REO Proceeds and other payments and recoveries (including
proceeds of a final sale) which the Master Servicer expects to be finally
recoverable from the sale or other disposition of the REO Property.
REO IMPUTED INTEREST: As to any REO Property, for any period,
an amount equivalent to interest (at the Net Mortgage Rate that would have been
applicable to the related Mortgage Loan had it been Outstanding) on the unpaid
principal balance of the Mortgage Loan as of the date of acquisition thereof for
such period as such balance is reduced pursuant to Section 3.13 of the Servicing
Agreement by any income from the REO Property treated as a recovery of
principal.
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REO PROCEEDS: Proceeds, net of expenses, received in respect
of any REO Property (including, without limitation, proceeds from the rental of
the related Mortgaged Property) which proceeds are required to be deposited into
the Collection Account only upon the
related REO Disposition.
REO PROPERTY: A Mortgaged Property that is acquired by the
Issuer by foreclosure or by deed in lieu of foreclosure.
REPURCHASE EVENT: With respect to any Mortgage Loan, either
(i) a discovery that, as of the Closing Date the related Mortgage was not a
valid lien on the related Mortgaged Property subject only to (A) the lien of
real property taxes and assessments not yet due and payable, (B) covenants,
conditions, and restrictions, rights of way, easements and other matters of
public record as of the date of recording of such Mortgage and such other
permissible title exceptions as are permitted and (C) other matters to which
like properties are commonly subject which do not materially adversely affect
the value, use, enjoyment or marketability of the related Mortgaged Property or
(ii) with respect to any Mortgage Loan as to which the Seller delivers an
affidavit certifying that the original Mortgage Note has been lost or destroyed,
a subsequent default on such Mortgage Loan if the enforcement thereof or of the
related Mortgage is materially and adversely affected by the absence of such
original Mortgage Note.
REPURCHASE PRICE: With respect to any Mortgage Loan required
to be repurchased on any date pursuant to the Mortgage Loan Sale and
Contribution Agreement or purchased by the Master Servicer pursuant to the
Servicing Agreement, an amount equal to the sum, without duplication, of (i)
100% of the Principal Balance thereof (without reduction for any amounts charged
off) and (ii) unpaid accrued interest at the Mortgage Rate on the outstanding
principal balance thereof from the Due Date to which interest was last paid by
the Mortgagor to the first day of the month following the month of purchase plus
(iii) the amount of unreimbursed Advances or unreimbursed Servicing Advances
made with respect to such Mortgage Loan plus (iv) any other amounts owed to the
Master Servicer or the Subservicer pursuant to Section 3.07 of the Servicing
Agreement and not included in clause (iii) of this definition.
RESERVE FUND RELEASE AMOUNT: With respect to any Payment Date,
the lesser of (i) the amount in the Reserve Fund immediately prior to such
Payment Date and (ii) the sum of any ARM Pool Overcollateralization Deficit, any
High LTV Pool Overcollateralization Deficit and any amount remaining unpaid to
the Bond Insurer pursuant to Section 3.05(b)(iii) and Section 3.05(c)(iii) of
the Indenture that would exist after the distribution of the ARM Pool Available
Funds and High LTV Pool Available Funds for such Payment Date.
RESERVE FUND CERTIFICATE PAYMENT AMOUNT: Following the
distributions pursuant to Section 3.05(b), 3.05(c), 3.05(h) and 5.02 of the
Indenture, an amount equal to the excess, if any, of (i) the sum of the ARM Pool
Overcollateralization Amount, the High LTV Pool Overcollateralization Amount and
the amount in the Reserve Fund over (ii) the sum of ARM Pool Required
Overcollateralization Amount and the High LTV Pool Required
Overcollateralization Amount.
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RESERVE FUND: The Eligible Account established pursuant to
Section 3.11 of the Indenture.
RESERVE INTEREST RATE: With respect to any Interest
Determination Date, the rate per annum that the Indenture Trustee determines to
be either (i) the arithmetic mean (rounded upwards if necessary to the nearest
whole multiple of 1/16%) of the one-month United States dollar lending rates
which New York City banks selected by the Indenture Trustee are quoting on the
relevant Interest Determination Date to the principal London offices of leading
banks in the London interbank market or (ii) in the event that the Indenture
Trustee can determine no such arithmetic mean, the lowest one-month United
States dollar lending rate which New York City banks selected by the Indenture
Trustee are quoting on such Interest Determination Date to leading European
banks.
RESPONSIBLE OFFICER: With respect to the Indenture Trustee,
any officer of the Indenture Trustee with direct responsibility for the
administration of the Indenture and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
REUTERS SCREEN LIBO PAGE: The display designated as page
"LIBO" on the Reuter Monitor Money Rate Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying London
Interbank Offered Rates of major banks.)
ROLLING DELINQUENCY PERCENTAGE: For any Payment Date, the
average of the Delinquency Percentages for the Mortgage Loans as of the last day
of each of the six (or 1, 2, 3, 4, and 5 in the case of the first five Payment
Dates, as applicable) most recently ended Due Periods.
SECURITIES ACT: The Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
SECURITIES INTERMEDIARY: LaSalle National Bank, or its
successors and assigns.
SECURITY: Any of the Certificates or Bonds.
SECURITYHOLDER or HOLDER: Any Bondholder or a
Certificateholder.
SECURITY INSTRUMENT: A written instrument creating a valid
first lien on a Mortgaged Property securing a Mortgage Note, which may be any
applicable form of mortgage, deed of trust, deed to secure debt or security
deed, including any riders or addenda thereto.
SELLER: Impac Mortgage Holdings, Inc. (formerly known as
Imperial Credit Mortgage Holdings, Inc.), a Maryland corporation, and its
successors and assigns.
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SERVICING ACCOUNT: The separate trust account created and
maintained by the Master Servicer or each Subservicer with respect to the
Mortgage Loans or REO Property, which shall be an Eligible Account, for
collection of taxes, assessments, insurance premiums and comparable items as
described in Section 3.08 of the Servicing Agreement.
SERVICING ADVANCES: All customary, reasonable and necessary
"out of pocket" costs and expenses incurred in connection with a default,
delinquency or other unanticipated event in the performance by the Master
Servicer of its servicing obligations, including, without duplication, but not
limited to, the cost of (i) the preservation, restoration and protection of a
Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures, (iii) the management and liquidation of any REO Property and (iv)
compliance with the obligations under Sections 3.10, 3.11, 3.13 of the Servicing
Agreement.
SERVICING AGREEMENT: The Servicing Agreement dated as of
February 1, 1999, among the Master Servicer, the Issuer and the Indenture
Trustee.
SERVICING CERTIFICATE: A certificate completed and executed by
a Servicing Officer on behalf of the Master Servicer in accordance with Section
4.01 of the Servicing Agreement.
SERVICING DEFAULT: The meaning assigned in Section 6.01 of the
Servicing Agreement.
SERVICING FEE: The sum of the Master Servicing Fee and the
Subservicing Fee.
SERVICING FEE RATE: The sum of the Master Servicing Fee Rate
and the related Subservicing Fee Rate.
SERVICING OFFICER: Any officer of the Master Servicer involved
in, or responsible for, the administration and servicing of the Mortgage Loans
whose name and specimen signature appear on a list of servicing officers
furnished to the Indenture Trustee by the Master Servicer,
as such list may be amended from time to time.
SINGLE BOND: A Bond in the amount of $1,000.
SIX-MONTH ROLLING DELINQUENCY AVERAGE: With respect to each
Payment Date, the average of the Sixty-Day Delinquency Amounts for each of the
six immediately preceding Due Periods.
SIXTY-DAY DELINQUENCY AMOUNT: With respect to any Due Period,
an amount equal to the aggregate Principal Balance of the Mortgage Loans that
are sixty or more days delinquent in payment of principal and interest as of the
immediately preceding Determination Date (including Mortgage Loans that are in
foreclosure and Mortgage Loans which are REO Properties).
STANDARD & POOR'S: Standard & Poor's Ratings Service, or its
successor in interest.
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STEP-UP DATE: The first Payment Date on which the Issuer can
cause the redemption of the Bonds pursuant to Section 8.07 of the Indenture.
SUBSERVICER: Any Person with whom the Master Servicer has
entered into a Subservicing Agreement as a Subservicer by the Master Servicer
and acceptable to the Bond Insurer, including the Initial Subservicer.
SUBSERVICING ACCOUNT: An Eligible Account established or
maintained by a Sub servicer as provided for in Section 3.06(e) of the Servicing
Agreement.
SUBSERVICING AGREEMENT: The written contract between the
Master Servicer and any Subservicer relating to servicing and administration of
certain Mortgage Loans as provided in Section 3.02 of the Servicing Agreement.
SUBSERVICING FEE: With respect to each Mortgage Loan and any
Payment Date the product of (i) the Subservicing Fee Rate divided by 12 and (ii)
the Principal Balance of such Mortgage Loans as of the first day of the related
Due Period (with respect to an ARM Loan) or
Collection Period (with respect to a High LTV Loan).
SUBSERVICING FEE RATE: With respect to any ARM Loan, 0.375%
per annum. With respect to any High LTV Loan, 0.70% per annum.
SUBSTITUTION ADJUSTMENT AMOUNT: With respect to any Eligible
Substitute Mortgage Loan, the amount as defined in Section 2.03 of the Servicing
Agreement.
TELERATE SCREEN PAGE 3750: The display designated as page 3750
on the Telerate Service (or such other page as may replace page 3750 on that
service for the purpose of displaying London interbank offered rates of major
banks). If such rate does not appear on such page (or such other page as may
replace that page on that service, or if such service is no longer offered, such
other service for displaying One-Month LIBOR or comparable rates as may be
selected by the Issuer after consultation with the Indenture Trustee), the rate
will be the Reference Bank Rate.
TREASURY REGULATIONS: Regulations, including proposed or
temporary Regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
TRUST: The Impac CMB Trust Series 1999-1 to be created
pursuant to the Trust Agreement.
TRUST AGREEMENT: The Amended and Restated Trust Agreement
dated as of February 26, 1999, among the Owner Trustee, the Depositor and
LaSalle National Bank, as certificate registrar and certificate paying agent,
relating to the Trust.
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TRUST ESTATE: The meaning specified in the Granting Clause of
the Indenture.
TRUST INDENTURE ACT OR TIA: The Trust Indenture Act of 1939,
as amended from time to time, as in effect on any relevant date.
UCC: The Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction.
UNINSURED CAUSE: Any cause of damage to property subject to a
Mortgage that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies.
UNPAID INTEREST SHORTFALL: With respect to the Class A-1 Bonds
and each Payment Date, any Accrued Bond Interest remaining unpaid as to such
class of Bonds as a result of the insufficiency of the ARM Pool Available Funds,
plus any such shortfall for all prior Payment Dates, and plus interest thereon
at the related Bond Interest Rate for such Payment Date. Unpaid Interest
Shortfall with respect to the Class A-1 Bonds shall not include any shortfalls
that result in any ARM Pool Basis Risk Shortfall Carry-Forward Amount. With
respect to the Class A-2 Bonds and each Payment Date, any Accrued Bond Interest
remaining unpaid as to such class of Bonds as a result of the insufficiency of
the High LTV Pool Available Funds, plus any such shortfall for all prior Payment
Dates, and plus interest thereon at the related Bond Interest Rate for such
Payment Date. Unpaid Interest Shortfall with respect to the Class A-2 Bonds
shall not include any shortfalls that result in any High LTV Pool Basis Risk
Shortfall Carry-Forward Amount.
WENDOVER: Wendover Funding, Inc., or its successor in
interest.
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