Exhibit 4.1
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IMPAC CMB TRUST 1998-C1
as Issuer
and
LASALLE NATIONAL BANK
as Indenture Trustee
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INDENTURE
Dated as of August 1, 1998
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$305,853,000
Impac CMB Trust 1998-C1
Collateralized Mortgage Bonds
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT....................................................................................1
GRANTING CLAUSE..........................................................................................1
GENERAL COVENANT.........................................................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION...................................................................................2
Section 1.01. Definitions............................................................................2
Section 1.02. Rules of Construction.................................................................17
ARTICLE II
THE BONDS...............................................................................................18
Section 2.01. Forms; Denominations..................................................................18
Section 2.02. Execution, Authentication, Delivery and Dating........................................18
Section 2.03. Acknowledgment of Receipt of the Mortgage Loans.......................................19
Section 2.04. The Bonds Generally...................................................................20
Section 2.05. Registration of Transfer and Exchange of Bonds........................................20
Section 2.06. Mutilated, Destroyed, Lost or Stolen Bonds............................................23
Section 2.07. Bondholder Lists......................................................................23
Section 2.08. Persons Deemed Owners.................................................................24
Section 2.09. Bond Account..........................................................................24
Section 2.10. Payments on the Bonds.................................................................24
Section 2.11. Final Payment Notice..................................................................28
Section 2.12. Compliance with Withholding Requirements and Reporting................................29
Section 2.13. Cancellation..........................................................................29
Section 2.14 Book-Entry Bonds......................................................................29
ARTICLE III
SATISFACTION AND DISCHARGE..............................................................................32
Section 3.01. Satisfaction and Discharge of Indenture...............................................32
Section 3.02. Application of Trust Money............................................................32
ARTICLE IV
EVENTS OF DEFAULT; REMEDIES.............................................................................33
Section 4.01. Events of Default.....................................................................33
Section 4.02. Acceleration of Maturity; Rescission and Annulment....................................34
Section 4.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.............35
Section 4.04. Remedies..............................................................................36
Section 4.05. Application of Money Collected........................................................37
Section 4.06. Limitation on Suits...................................................................37
PAGE
Section 4.07. Unconditional Right of Bondholders to Receive Principal and Interest..................38
Section 4.08. Restoration of Rights and Remedies....................................................38
Section 4.09. Rights and Remedies Cumulative........................................................38
Section 4.10. Delay or Omission Not Waiver..........................................................38
Section 4.11. Control by Bondholders................................................................39
Section 4.12. Waiver of Past Defaults...............................................................39
Section 4.13. Undertaking for Costs.................................................................40
Section 4.14. Waiver of Stay or Extension Laws......................................................40
Section 4.15. Sale of Trust Estate..................................................................40
Section 4.16. Action on Bonds.......................................................................42
ARTICLE V
THE INDENTURE TRUSTEE...................................................................................43
Section 5.01. Certain Duties and Responsibilities...................................................43
Section 5.02. Notice of Defaults....................................................................46
Section 5.03. Certain Rights of Indenture Trustee...................................................46
Section 5.04. Compensation and Reimbursement........................................................47
Section 5.05. Corporate Indenture Trustee Required; Eligibility.....................................48
Section 5.06. Authorization of Indenture Trustee....................................................49
Section 5.07. Merger, Conversion, Consolidation or Succession to Business...........................49
Section 5.08. Resignation and Removal; Appointment of Successor.....................................49
Section 5.09. Acceptance of Appointment by Successor................................................51
Section 5.10. Unclaimed Funds.......................................................................51
Section 5.11. Illegal Acts..........................................................................52
Section 5.12. Communications by the Indenture Trustee...............................................52
Section 5.13. Separate Indenture Trustees and Co-Trustees...........................................52
ARTICLE VI
REPORTS TO BONDHOLDERS..................................................................................54
Section 6.01. Reports to Bondholders and Others.....................................................54
Section 6.02. Certain Communications with the Rating Agencies.......................................54
Section 6.03. Access to Certain Information.........................................................55
ARTICLE VII
REDEMPTION..............................................................................................57
Section 7.01. Redemption of the Bonds...............................................................57
ARTICLE VIII
SUPPLEMENTAL INDENTURES; AMENDMENTS.....................................................................58
Section 8.01. Supplemental Indentures or Amendments Without Consent of Bondholders..................58
Section 8.02. Supplemental Indentures With Consent of Bondholders...................................59
Section 8.03. Delivery of Supplements and Amendments................................................60
Section 8.04. Execution of Supplemental Indentures, etc.............................................60
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ARTICLE IX
COVENANTS; WARRANTIES...................................................................................61
Section 9.01. Maintenance of Office or Agency.......................................................61
Section 9.02. Existence.............................................................................61
Section 9.03. Payment of Taxes and Other Claims.....................................................61
Section 9.04. Validity of the Bonds; Title to the Trust Estate; Lien................................61
Section 9.05 Protection of Trust Estate............................................................62
Section 9.06. Negative Covenants....................................................................62
Section 9.07. Statement as to Compliance............................................................63
Section 9.08. Issuer may Consolidate, Etc., only on Certain Terms...................................63
Section 9.09 Purchase of Bonds.....................................................................64
Section 9.10. Performance of Issuer's Duties by the Owner Trustee and Manager.......................65
Section 9.11. Payment of Rating Agency Fees.........................................................65
ARTICLE X
MISCELLANEOUS...........................................................................................66
Section 10.01. Execution Counterparts................................................................66
Section 10.02. Compliance Certificates and Opinions, etc.............................................66
Section 10.03. Form of Documents Delivered to Indenture Trustee......................................66
Section 10.04. Acts of Bondholders...................................................................67
Section 10.05. Computation of Percentage of Bondholders..............................................68
Section 10.06. Notice to the Indenture Trustee, the Issuer and Certain Other Persons.................68
Section 10.07. Notices to Bondholders; Notification Requirements and Waiver..........................68
Section 10.08. Successors and Assigns................................................................69
Section 10.09. Separability Clause...................................................................69
Section 10.10. Governing Law.........................................................................69
Section 10.11. Effect of Headings and Table of Contents..............................................69
Section 10.12. Benefits of Indenture.................................................................69
Section 10.13. Recording of Indenture................................................................69
Section 10.14. Trust Obligation......................................................................70
Section 10.15. Inspection............................................................................70
Section 10.16. Method of Payment.....................................................................70
EXHIBITS
Exhibit A Form of Bond
Exhibit B Form of Trustee Report
Exhibit C-1A Form I of Transferor Certificate for Transfers of Class F Bonds and Class G Bonds
Exhibit C-1B Form II of Transferor Certificate for Transfers of Class F Bonds and Class G Bonds
Exhibit C-2A Form of Transferee Certificate for Transfers of Class F Bonds and Class G Bonds to
Qualified Institutional Buyers
Exhibit C-2B Form of Transferee Certificate for Transfers of Class F Bonds and Class G Bonds to
Institutional Accredited Investors
Exhibit D-1 Schedule of Exceptions to Mortgage Loan File Delivery
Exhibit D-2 Form of Final Certification
Exhibit E-1 Form of Certificate Regarding Information Requested by Bondholder
Exhibit E-2 Form of Certificate Regarding Information Requested by Prospective Purchaser
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INDENTURE, dated as of August 1, 1998, between Impac CMB Trust 1998-C1,
a Delaware business trust, as issuer (the "Issuer"), and LaSalle National Bank,
a national banking association, not in its individual capacity, but solely as
Indenture Trustee (the "Indenture Trustee") under this Indenture.
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Collateralized Mortgage Bonds, in
nine Classes designated as the Class A-1A, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇, Class B, Class
C, Class D, Class E, Class F and Class G Bonds (collectively, the "Bonds").
All things necessary to make the Bonds, when the Bonds are executed by
the Issuer and authenticated and delivered by the Indenture Trustee hereunder
and duly issued by the Issuer, the valid and legally binding obligations of the
Issuer enforceable in accordance with their terms, and to make this Indenture a
valid and legally binding agreement of the Issuer enforceable in accordance with
its terms, have been done.
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee effective as of the
Closing Date, as Indenture Trustee for the benefit of the Bondholders, all of
the Issuer's right, title and interest in and to (i) the Mortgage Loans and all
payments and other collections in respect of the Mortgage Loans received or due
after the Cutoff Date (exclusive of Principal Prepayments received on or prior
to the Cut-off Date and scheduled payments of interest and principal due on or
before the Cut-off Date), (ii) the Loan Sale Agreements, (iii) any real property
acquired on behalf of the Issuer, (iv) such funds as from time to time are
deposited in the Collection Account, the REO Account, the Bond Account and all
other accounts established under this Indenture, the Servicing Agreement or the
Owner Trust Agreement for purposes of making payments to the holders of the
Bonds and distributions to the holders of the Owner Trust Certificates, (v) all
present and future claims, demands and causes and choses in action in respect of
the foregoing, including the rights, titles and interests of the Issuer in, to
and under the Mortgage Loans, and (vi) all proceeds of the foregoing of every
kind and nature whatsoever, including, without limitation, all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, rights to payment of any and every kind
and other forms of obligations and receivables, instruments and other property
that at any time constitute all or part of or are included in the proceeds of
the foregoing ((i), (ii), (iii), (iv), (v) and (vi), collectively, the "Trust
Estate").
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 and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
GENERAL COVENANT
AND IT IS HEREBY COVENANTED AND DECLARED that the Bonds are to be
authenticated and delivered by the Indenture Trustee, that the Trust Estate is
to be held by or on behalf of the Indenture Trustee and that monies in the Trust
Estate are to be applied by the Indenture Trustee for the benefit of the
Bondholders, subject to the further covenants, conditions and trusts hereinafter
set forth, and the Issuer does hereby represent and warrant, and covenant and
agree, to and with the Indenture Trustee, for the equal and proportionate
benefit and security of each Bondholder, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions.
Whenever used in this Indenture, including in the Preliminary
Statement, the Granting Clause and the General Covenant hereinabove set forth,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Section 1.01 or, if not specified in this
Section 1.01, then in the Servicing Agreement and, if not specified therein, in
the Owner Trust Agreement.
"Accrual Period": With respect to any Payment Date and the Fixed Rate
Bonds, the period commencing on the first day of the calendar month preceding
the month in which such Payment Date occurs and ending on the last day of such
calendar month and, with respect to any Payment Date and the Adjustable Rate
Bonds, the period commencing on the Payment Date preceding such Payment Date
(or, in the case of the initial Payment Date, the period commencing on the
Closing Date) and ending on the day immediately prior to such Payment Date.
"Act": As defined in Section 10.04(a) hereof.
"Adjustable Rate Bond": Any Class A-2 Bond.
"Affiliate": With respect to any specified Person, for purposes of this
Indenture only, any other Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with, the person specified. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities or other beneficial interest, by contract or
otherwise; and the terms "controlling" and "controlled" have the meanings
correlative to the foregoing.
"Aggregate Bond Principal Payment Amount": With respect to any Payment
Date, an amount equal to the sum of the Sub-Pool Bond Principal Payment Amounts
for such Payment Date.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Borrower in connection with the origination or subsequent
modification or amendment of the related Mortgage Loan.
"Assumed Final Payment Date": With respect to any Class of Bonds, the
Payment Date on which the final payment of principal would occur for such Class
of Bonds based on the assumption that no Mortgage Loan is prepaid, extended,
modified or defaulted prior to its stated maturity, which Payment Date is
specified in Section 2.04(a).
"Assumed Scheduled Payment": With respect to any Mortgage Loan that is
delinquent in respect of its Balloon Payment (including any REO as to which the
Balloon Payment would have been past due) is an
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amount equal to the sum of (a) the principal portion of the Monthly Payment that
would have been due on such Mortgage Loan on the related Due Date based on the
constant payment required by the related Mortgage Note or the original
amortization schedule thereof (as calculated with interest at the related
Mortgage Rate), if applicable, assuming such Balloon Payment has not become due
after giving effect to any modification, and (b) interest at the applicable
Mortgage Rate.
"Authenticating Agent": As defined in Section 2.02(b).
"Authorized Officer": With respect to the Owner Trustee, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified 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 Amount": With respect to any Payment Date, the total of all
payments and other collections on or in respect of the Mortgage Loans in the
Bond Account that are available for payments to Bondholders on any Payment Date,
exclusive of any portion thereof that may be withdrawn from the Bond Account
pursuant to any of clauses (ii), (iii) and (v) of Section 2.09(c) and exclusive
of any Prepayment Premiums.
"Balloon Payment": As defined in Section 1.01 of the Servicing
Agreement.
"Bond": Any of the Issuer's Collateralized Mortgage Bonds, executed,
authenticated and delivered hereunder.
"Bond Account": The segregated account established in the name of the
Indenture Trustee pursuant to Section 2.09 hereof.
"Bond Interest Rate": With respect to each Class of Fixed Rate Bonds,
the per annum rate specified in Section 2.04(a) hereof. With respect to each
Payment Date and the Adjustable Rate Bonds, a per annum rate equal to the lesser
of (a) LIBOR on the related Interest Rate Determination Date plus the Margin and
(b) 12.50%.
"Bond Principal Balance": With respect to any Class of Bonds
outstanding on any Payment Date, the maximum amount that the holders thereof are
entitled to receive as distributions allocable to principal from the cash flow
on the Mortgage Loans reduced by any distributions of principal actually made on
such Class of Bonds on such Payment Date.
"Bond Register": As defined in Section 2.05(a) hereof.
"Bond Registrar": As defined in Section 2.05(a) hereof.
"Bondholder" or "Holder": With respect to any Bond, the Person in whose
name such Bond is registered on the Bond Register maintained pursuant to Section
2.05 hereof. All references herein to "Bondholders" or "Holders" shall reflect
the rights of Bond Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Bondholder" or "Holder" only the Person in whose name a Bond is
registered in the Bond Register.
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"Bond Owner": With respect to a Book-Entry Bond, the Person who is the
beneficial owner of such Bond as reflected on the books of the Depository or on
the books of a Depository Participant or on the books of an indirect
participating brokerage firm for which a Depository Participant acts as agent.
"Bond Prepayment Premium Amount": With respect to any Payment Date and
Sub-Pool 1, an amount equal to the lesser of (a) all Prepayment Premiums
collected during the related Collection Period with respect to the Mortgage
Loans in such Sub-Pool and (b) the sum of the product of each Prepayment Premium
collected multiplied by a fraction, the numerator of which is equal to the
excess, if any, of the Bond Interest Rate applicable to the most senior Class of
Outstanding Bonds related to such Sub-Pool over the Discount Rate, and the
denominator of which is equal to the excess, if any, of the Mortgage Rate of
such prepaid Mortgage Loan related to such Sub-Pool over the Discount Rate.
"Book-Entry Bond": Any Class A-1A, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇, Class B,
Class C, Class D, Class E or Class F Bonds registered in the name of the
Depository or its nominee.
"Book-Entry Custodian": The custodian appointed pursuant to Section
2.06.
"Borrower": Any Person to whom a Mortgage Loan was made.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions are authorized or obligated by law or executive order
to remain closed in New York, New York, Chicago, Illinois, Wilmington, Delaware,
or in any other city in which is located the Primary Servicing Office of the
Master Servicer or the Special Servicer or the Corporate Trust Office of the
Owner Trustee or the Indenture Trustee.
"Cash": Coin or currency of the United States or immediately available
federal funds, including such funds delivered by wire transfer.
"Class": Collectively, all of the Bonds bearing the same alphabetical
and, if applicable, numerical class designation.
"Class A Bond": Any Class A-1A, Class A-1B or Class A-2 Bond.
"Class A-1A Bond": Any of the Bonds with a "Class A-1A" designation on
the face thereof, executed by the Issuer and authenticated by the Indenture
Trustee or the Authenticating Agent, if any, substantially in the form of
Exhibit A attached hereto.
"Class A-2 Bond": Any of the Bonds with a "Class A-2" designation on
the face thereof, executed by the Issuer and authenticated by the Indenture
Trustee or the Authenticating Agent, if any, substantially in the form of
Exhibit A attached hereto.
"Class A-1B Bond": Any of the Bonds with a "Class A-1B" designation on
the face thereof, executed by the Issuer and authenticated by the Indenture
Trustee or the Authenticating Agent, if any, substantially in the form of
Exhibit A attached hereto.
"Class A Credit Support Depletion Date": The first Payment Date on
which the aggregate Stated Principal Balance of the Mortgage Loans is less than
or equal to the aggregate Bond Principal Balance of the Class A Bonds.
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"Class B Bond": Any of the Bonds with a "Class B" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A
attached hereto.
"Class C Bond": Any of the Bonds with a "Class C" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A
attached hereto.
"Class D Bond": Any of the Bonds with a "Class D" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A
attached hereto.
"Class E Bond": Any of the Bonds with a "Class E" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A
attached hereto.
"Class F Bond": Any of the Bonds with a "Class F" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A
attached hereto.
"Class G Bond": Any of the Bonds with a "Class G" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A
attached hereto.
"Class Prepayment Premium Percentage": With respect to any Payment
Date, Sub-Pool 1 and Fixed Rate Bonds, the percentage obtained by dividing the
portion, if any, of the related Sub-Pool Bond Principal Payment Amount to be
paid to the Holders of any Class of Bonds related to such Sub-Pool on such
Payment Date by the total Sub-Pool Bond Principal Payment Amount to be paid to
the holders of all Classes of Bonds related to such Sub-Pool on such Payment
Date.
"Closing Date": August 26, 1998.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Payment Date the period
commencing immediately following the Determination Date in the month preceding
the month in which such Payment Date occurs (or, in the case of the initial
Collection Period, commencing immediately following the Cut-off Date) and ending
on and including the Determination Date in the month in which such Payment Date
occurs.
"Company": IMH Assets Corp., a California corporation.
"Control Person": With respect to any Person, any other Person that
constitutes a "controlling person" within the meaning of Section 15 of the 1933
Act.
"Controlling Class": As defined in the Servicing Agreement.
"Corporate Trust Office": The principal corporate trust office of the
Indenture Trustee or the Owner Trustee at which at any particular time its
corporate trust business with respect to the Issuer shall be administered, which
office at the Closing Date is located at (i) in the case of the Indenture
Trustee, ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Asset
Backed Securities Trust Services Group-Impac 1998-C1 and (ii) in the case of the
Owner Trustee, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, Impac CMB Trust
1998-C1.
"Cut-off Date": With respect to the Mortgage Loans, August 1, 1998.
"Cut-off Date Balance": With respect to each Mortgage Loan, the unpaid
principal balance thereof as of the Cut-off Date, after application of all
payments due on or before such date, whether or not received.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named as contemplated by Section 2.06(c). The nominee of the initial
Depository for purposes of registering the Book- Entry Bonds is Cede & Co. The
Depository shall at all times be a "clearing corporation" as defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
Book-Entry transfers and pledges of securities deposited with
the Depository.
"Determination Date": With respect to any Payment Date, the 13th of the
related month or, if the 13th day of such month is not a Business Day, the
Business Day immediately succeeding such 13th day.
"Discount Rate": The rate which, when compounded monthly, is equivalent
to the Treasury Rate when compounded semi-annually.
"Due Date": With respect to a Mortgage Loan, the day of each calendar
month on which its Monthly Payment is due.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, the long-term deposit
or long-term unsecured debt obligations of which (or of such institution's
parent holding company) are rated in one of the three highest long-term debt
rating categories by ▇▇▇▇▇'▇ and at least "AA-" by S&P if the deposits are to be
held in the account for more than 30 days, or the short-term deposit or
short-term unsecured debt obligations of which (or of such institution's parent
holding company) are rated in one of the three highest short-term debt rating
categories by ▇▇▇▇▇'▇ and at least A-1 by S&P if the deposits are to be held in
the account for 30 days or less, in any event at any time funds are on deposit
therein, or (ii) a segregated trust account maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity, which, in the case of a state chartered depository institution or
trust company is subject to regulations regarding fiduciary funds on deposit
therein substantially similar to 12 CFR ss. 9.10(b), and which, in either case,
has a combined capital and surplus of at least $50,000,000 and is subject to
supervision or examination by federal or state authority, or (iii) any other
account that is acceptable to the Rating Agencies (as evidenced by written
confirmation from each Rating Agency that the use of such account would not, in
and of itself, cause a qualification, downgrading or withdrawal of the
then-current rating assigned thereby to any Class of Bonds). Eligible Accounts
may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default": As defined in Section 4.01 hereof.
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"Extraordinary Expense": As defined in Section 1.01 of the Servicing
Agreement.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"Final Payment Date": The Payment Date on which the final payment on
the Bonds of any Class is made hereunder by reason of all principal, interest
and other amounts due and payable on such Bonds having been paid or the assets
constituting the Trust Estate having been exhausted.
"Fiscal Agent": ABN AMRO Bank, NV, a Netherlands banking corporation,
or its successors and assigns.
"Fixed Rate Bond": Any Class A-1A, Class A-1B, Class B, Class C, Class
D, Class E, Class F or Class G Bond.
"GAAP": Such accounting principles as are generally accepted in the
United States.
"Grant": To mortgage, pledge, bargain, sell, warrant, alienate, demise,
convey, assign, transfer, create and grant a security interest in and right of
setoff against, deposit, set over and confirm. A Grant of assets constituting
the Trust Estate shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including without limitation the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the assets constituting the
Trust Estate and all other monies and proceeds 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 which the
granting party is or may be entitled to do or receive thereunder or with respect
thereto.
"Ground Lease": The ground lease pursuant to which any Borrower holds a
leasehold interest in the related Mortgaged Property.
"Impac Loan Sale Agreement": The Loan Sale Agreement, dated as of
August 1, 1998, between the Seller and Impac QRS, pursuant to which the Seller
transferred the Mortgage Loans to Impac QRS.
"Impac QRS": Impac Commercial Assets Corp., a California corporation.
"Impac QRS Loan Sale Agreement": The Loan Sale Agreement, dated as of
August 1, 1998, between Impac QRS and the Company, pursuant to which Impac QRS
transferred the Mortgage Loans to the Company.
"Indenture": This instrument as originally executed or as it may be
supplemented or amended from time to time by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Indenture Trustee": LaSalle National Bank, a national banking
association, in its capacity as trustee under this Indenture, or its successor
in interest, or any successor trustee appointed as provided in this Indenture.
"Indenture Trustee Fee": A monthly fee with respect to each Mortgage
Loan payable as provided in the Servicing Agreement.
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"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Indenture Trustee, the Fiscal
Agent, the Issuer, the Owner Trustee, the Manager, Impac QRS and the Company and
any and all Affiliates thereof, (ii) does not have any direct financial interest
in or any material indirect financial interest in any of the Indenture Trustee,
the Fiscal Agent, the Issuer, the Owner Trustee, the Manager, Impac QRS or the
Company or any Affiliate thereof, and (iii) is not connected with the Indenture
Trustee, the Fiscal Agent, the Issuer, the Owner Trustee, the Manager, Impac QRS
or the Company or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Indenture Trustee, the Fiscal Agent, the Issuer, the Owner Trustee, the Manager,
Impac QRS or the Company or any Affiliate thereof merely because such Person is
the beneficial owner of 1% or less of any class of securities issued by the
Indenture Trustee, the Fiscal Agent, the Issuer, the Owner Trustee, the Manager,
Impac QRS or the Company or any Affiliate thereof, as the case may be. The
Indenture Trustee may rely, in the performance of any duty hereunder, upon the
statement of any Person contained in any certificate or opinion that such Person
is Independent according to this definition.
"Institutional Accredited Investor": An "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the 1933
Act or any entity in which all of the equity owners come within
such paragraphs.
"Interested Person": As of any date of determination, the Issuer, the
Company, the Servicer, the Owner Trustee, the Manager or, in each such case, any
of their respective Affiliates.
"Interest Rate Adjustment Date": With respect to any Payment Date and
any Adjustable Rate Bond, the first day of the related Accrual Period.
"Interest Rate Determination Date": Two Business Days prior to the
related Interest Rate Adjustment Date.
"IRS": The United States Internal Revenue Service.
"Issuer": Impac CMB Trust 1998-C1, a Delaware business trust, or its
successor in interest.
"Issuer Request" or "Issuer Order": A written request or order signed
in the name of the Issuer by a Responsible Officer of the Owner Trustee.
"Letter of Representations": The Letter of Representations dated the
Closing Date among the Company, the Indenture Trustee and the initial
Depository.
"Liquidation Proceeds": As defined in Section 1.01 of the Servicing
Agreement.
"LIBOR": With respect to each Interest Rate Adjustment Date related to
any Adjustable Rate Bond, the annual rate, appearing on Telerate Page 3750 as
the London interbank offered rate for one-month United States dollar deposits at
approximately 11:00 a.m., London time, on the related Interest Rate
Determination Date, and if such rate is not available, LIBOR shall be the annual
rate appearing on the Reuters Screen LIBO Page as the London interbank offered
rate for one-month United States dollar deposits at approximately 11:00 a.m.,
London time, on the related Interest Rate Determination Date or, if more than
one such rate appears, the arithmetic mean of all such rates.
"Loan Sale Agreements": The Impac Loan Sale Agreement and the Impac QRS
Loan Sale Agreement.
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"Manager": The Person acting as the "Manager" from time to time under
the Management Agreement, which initially shall be Impac Commercial Holdings,
Inc.
"Management Agreement": The Management Agreement, dated as of August 1,
1998, between the Issuer and the Manager, pursuant to which the Manager shall
perform certain administrative services for the Issuer in connection with this
Indenture, the Owner Trust Agreement and the Servicing Agreement.
"Margin": With respect to any Accrual Period and the Class A-2 Bonds,
0.28%.
"Master Servicer": Midland Loan Services, Inc., a Delaware corporation
or its successors and assigns.
"Maturity": With respect to any Bond, the date as of which the
principal of and interest on such Bond has become due and payable as herein
provided, whether at Stated Maturity, by acceleration or otherwise.
"Modified Loan": Any Mortgage Loan as to which the related payment
terms have been modified in connection with a default and work-out.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., a nationally recognized
statistical rating organization under the federal securities laws.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar document that secures the related Mortgage
Note and creates a lien on the related Mortgaged Property.
"Mortgage Loan": Each of the mortgage loans listed on the Loan Schedule
and from time to time held in the Trust Estate. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage and other documents
contained in the related Mortgage Loan File.
"Mortgage Loan File": With respect to any Mortgage Loan, collectively
the following documents:
(i) the original executed Mortgage Note, or Mortgage
Notes, or lost note affidavit and indemnity, endorsed
(without recourse) to the order of "LaSalle National
Bank, as trustee for the registered holders of Impac
CMB Trust 1998-C1 Collateralized Mortgage Bonds,"
together with all prior endorsements showing a
complete chain of endorsements from the original
payee of the Mortgage Note to the Person endorsing
the Mortgage Note to the Indenture Trustee;
(ii) an original or a copy of the Mortgage and of any
intervening assignments thereof that precede the
assignment to the Indenture Trustee, in each case
with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the
Mortgage) and of any intervening assignments thereof
that precede the assignment to the Indenture Trustee,
in each case with evidence of recording indicated
thereon;
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(iv) an original executed assignment of the Mortgage in
favor of "LaSalle National Bank, as trustee for the
registered holders of Impac CMB Trust 1998-C1
Collateralized Mortgage Bonds," in recordable form;
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the
Mortgage), in favor of "LaSalle National Bank, as
trustee for the registered holders of Impac CMB Trust
1998-C1 Collateralized Mortgage Bonds," in recordable
form;
(vi) originals or copies of any written modification
agreements in those instances where the terms or
provisions of the Mortgage Note, the Mortgage, any
separate Assignment of Leases have been modified;
(vii) the original or a copy of the policy or certificate
of lender's title insurance issued on the date of the
origination of such Mortgage Loan, or, if such policy
has not been issued, an irrevocable, binding
commitment to issue such title insurance policy;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in
favor of any assignee prior to the Indenture Trustee,
together with original UCC Financing Statements in
favor of "LaSalle National Bank, as trustee for the
registered holders of Impac CMB Trust 1998-C1
Collateralized Mortgage Bonds"; and
(ix) when relevant, the related Ground Lease or a copy
thereof;
provided that (A) no assignment of any of the foregoing documents in favor of
the Indenture Trustee shall be considered to be effective until the Closing
Date, notwithstanding any earlier date on any such assignment, (B) whenever the
term "Mortgage Loan File" is used to refer to documents actually received by the
Indenture Trustee or by a custodian on its behalf pursuant to the Loan Sale
Agreement, such term shall not be deemed to include such documents required to
be included therein unless they are actually so received, (C) each assignment in
favor of the Indenture Trustee shall be submitted for recording or filing, as
the case may be, by the Master Servicer and at the expense of the Seller
pursuant to Section 2.03 of the Servicing Agreement and (D) with respect to any
receipt or certification by the Indenture Trustee for documents described in
clauses (iii), (v), (vi), (viii) and (ix) of this definition, shall be deemed to
include such documents only to the extent that a Responsible Officer of the
Indenture Trustee has actual knowledge of their existence.
"Mortgage Loan Schedule": As defined in the Servicing Agreement.
"Mortgage Note": The original executed note evidencing the indebtedness
of a Borrower under a Mortgage Loan, together with any rider, addendum or
amendment thereto, or any renewal, substitution or replacement of such note.
"Mortgaged Property": With respect to any Mortgage Loan, the property
subject to the lien of the related Mortgage.
"1933 Act": The Securities Act of 1933, as amended, and the rules,
regulations and published interpretations of the Securities and Exchange
Commission promulgated thereunder from time to time.
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"1934 Act": The Securities Exchange Act of 1934, as amended, and the
rules, regulations and published interpretations of the Securities and Exchange
Commission promulgated thereunder from time to time.
"1939 Act": The Trust Indenture Act of 1939, as amended, and the rules,
regulations and published interpretations of the Securities and Exchange
Commission promulgated thereunder from time to time.
"1940 Act": The Investment Company Act of 1940, as amended, and the
rules, regulations and published interpretations of the Securities and Exchange
Commission promulgated thereunder from time to time.
"Notice of Default": As defined in Section 4.01 hereof.
"Officer's Certificate": A certificate signed by any Responsible
Officer of the Owner Trustee or the Indenture Trustee, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who shall be
selected by the Issuer (and reasonably acceptable to the Indenture Trustee). The
cost of obtaining such opinion shall be borne by the Issuer.
"OTS": Office of Thrift Supervision or any successor thereto.
"Outstanding": When used with respect to Bonds, means, as of the date
of determination, any Bond theretofore authenticated and delivered under this
Indenture, except:
(i) Bonds theretofore canceled by the Bond Registrar or
delivered to the Bond Registrar for cancellation (other than any Bond
as to which any amount that has become due and payable in
respect thereof has not been paid in full); and
(ii) Bonds in exchange for or in lieu of which other Bonds
have been authenticated and delivered pursuant to this Indenture, other
than any such Bonds in respect of which there shall have been presented
to the Bond Registrar proof satisfactory to it that such Bonds are held
by a bona fide purchaser in whose hands such Bonds are valid
obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
aggregate Bond Principal Balance of Outstanding Bonds have given any request,
demand, authorization, vote, direction, notice, consent or waiver hereunder,
such determination shall be made on a Class by Class basis, and Bonds owned by
an Interested Person shall be disregarded and deemed not to be Outstanding
(unless any such Person or Persons owns all the Bonds of such Class), except
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 which the Bond Registrar knows to be so owned shall be so
disregarded. Bonds owned by an Interested Person which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Bond Registrar in its sole discretion the pledgee's right to
act with respect to such Bonds and that the pledgee is not an Interested Person.
"Outstanding Class A Bonds": As defined in Section 2.10(c)(iii).
"Owner Trust Agreement": The Owner Trust Agreement, dated as of August
1, 1998, between the Company and the Owner Trustee, pursuant to which the Issuer
was created.
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"Owner Trust Certificates": The owner trust certificates issued in
three classes under the Owner Trust Agreement and evidencing the entire
beneficial ownership interest in the Issuer.
"Owner Trustee": Wilmington Trust Company, not in its individual
capacity but solely as owner trustee under the Owner Trust Agreement creating
the Issuer.
"Ownership Interest": As to any Bond, any ownership or security
interest in such Bond as held by the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Payable Bond Interest": For any Class of Bonds and any Payment Date,
an amount equal to interest accrued during the related Accrual Period at the
Bond Interest Rate applicable to such Class of Bonds for such Payment Date on
the related Bond Principal Balance immediately prior to such Payment Date.
Payable Bond Interest will be calculated in the case of the Fixed Rate Bonds on
the basis of a 360-day year consisting of twelve 30-day months and in the case
of the Class A-2 Bonds, on the basis of a 360-day year and the actual number of
days in the related Accrual Period.
"Payment Date": The 20th day of each calendar month, or, if such 20th
day is not a Business Day, the next succeeding Business Day, commencing in
September 1998.
"Permitted Investments": Any one or more of the following obligations
or securities:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided that such obligations
are backed by the full faith and credit of the United States and have a
predetermined, fixed amount of principal due at maturity (that cannot
vary or change), do not have an "r" highlighter attached to any rating,
and that each such obligation has a fixed interest rate or has its
interest rate tied to a single interest rate index plus a single fixed
spread;
(ii) repurchase agreements on obligations specified in clause
(i) maturing not more than one month from the date of acquisition
thereof, provided that the unsecured obligations of the party agreeing
to repurchase such obligations are at the time rated by each Rating
Agency in the highest short-term ratings available;
(iii) federal funds, unsecured certificates of deposit, time
deposits, bankers' acceptances and repurchase agreements having
maturities of not more than 365 days, of any bank or trust company
organized under the laws of the United States or any state thereof,
provided that such items are rated the highest short-term debt rating
categories of each Rating Agency or such lower rating as will not
result in a qualification, downgrading or withdrawal of the rating then
assigned to any Class of Bonds by either Rating Agency (as evidenced in
writing by each Rating Agency), do not have an "r" highlighter affixed
to its rating and have a predetermined, fixed amount of principal due
at maturity (that cannot vary or change) and that each such obligation
has a fixed interest rate or has its interest rate tied to a single
interest rate index plus a single fixed spread;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of the
United States or any state thereof (or of any corporation not so
incorporated, provided that the commercial paper is United States
Dollar denominated and amounts payable thereunder are not subject to
any withholding imposed by any non-United States jurisdiction) which is
rated in the highest short-term debt rating category of each Rating
Agency or, such lower rating as will not result in a qualification,
downgrading or withdrawal
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of the rating then assigned to any Class of Bonds by either Rating
Agency (as evidenced in writing by each Rating Agency), does not have
an "r" highlighter affixed to its rating, has a predetermined fixed
amount of principal due at maturity (that cannot vary or change) and
has a fixed interest rate or has its interest rate tied to a single
interest rate index plus a single fixed spread;
(v) units of money market funds which have as one of their
objectives the maintenance of a constant net asset value and which are
rated the highest applicable rating category of each Rating Agency or
such lower rating as will not result in a qualification, downgrading or
withdrawal of the rating then assigned to any Class of Bonds by either
Rating Agency (as evidenced in writing by each Rating Agency); or
(vi) any other obligation or security acceptable to each
Rating Agency, which will not result in a qualification, downgrading or
withdrawal of the rating then assigned to any Class of Bonds by either
Rating Agency (as evidenced in writing by each Rating Agency);
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity (that
cannot vary or change).
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, estate, trust, unincorporated association, or any
federal, state, county or municipal government or any political subdivision
thereof.
"Plan": As defined in Section 2.05(c) hereof.
"Prepayment Charge": As defined in Section 1.01 of the Servicing
Agreement.
"Prepayment Premium": Any Prepayment Charge or Yield Maintenance
Premium.
"Principal Prepayment": As defined in Section 1.01 of the Servicing
Agreement.
"Private Bonds": Unless and until registered under the 1933 Act, the
Class F and Class G Bonds.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Prospectus": The prospectus, dated August 6, 1998, together with the
supplement to the prospectus, dated August 20, 1998.
"QIB": A "qualified institutional buyer" as defined in Rule 144A under
the 1933 Act.
"Qualified Substitute Mortgage Loan": As defined in Section 1.01 of the
Servicing Agreement.
"QRS": A qualified REIT subsidiary within the meaning of Section 856(i)
of the Code.
"Rating Agency": S&P, Moody's or their respective successors in
interest. If neither of such rating agencies or any related successor remains in
existence, "Rating Agency" shall be deemed to refer to such other nationally
recognized statistical rating organization or other comparable Person designated
by the Issuer pursuant to the Servicing Agreement, and specific ratings of S&P
or Moody's referenced herein shall be
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deemed to refer to the equivalent ratings of the party so designated. References
herein to "applicable rating category" (other than any such references to
"highest applicable rating category") shall, in the case of S&P and Moody's, be
deemed to refer to such applicable rating category of S&P and Moody's,
respectively, without regard to any plus or minus or other comparable rating
qualification.
"Record Date": With respect to any Payment Date, the last Business Day
of the prior calendar month.
"REIT": A real estate investment trust within the meaning of Section
856(a) of the Code.
"REO": As defined in Section 1.01 the Servicing Agreement.
"Resolution": A copy of a resolution certified by an Authorized Officer
of the Owner Trustee to have been duly adopted by the Owner Trustee and to be in
full force and effect on the date of such certification.
"Responsible Officer": With respect to the Owner Trustee or the
Indenture Trustee, any officer of the Owner Trustee or the Indenture Trustee, as
the case may be (and, in the case of the Indenture Trustee, assigned to its
Asset Backed Securities Trust Services Group), customarily performing functions
with respect to corporate trust matters and having direct responsibility for the
administration of this Indenture and, with respect to a particular corporate
trust matter under this Indenture, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Retired Class A Bonds": As defined in Section 2.10(c)(iii).
"Rule 144A": Rule 144A under the 1933 Act.
"S&P": Standard & Poor's Rating Services, a Division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. a nationally recognized statistical rating organization under
the federal securities laws.
"Seller": Impac Commercial Holdings, Inc., a Maryland corporation, as
seller of the Mortgage Loans to Impac QRS.
"Servicing Agreement": The Servicing Agreement, dated as of August 1,
1998 among the Issuer, Midland Loan Services, Inc., as Master Servicer and
Special Servicer, the Indenture Trustee and the Fiscal Agent.
"Special Servicer": Midland Loan Services, Inc. or its successors and
assigns.
"Stated Maturity": With respect to any Bond, the date specified in such
Bond and Section 2.04(a) as the fixed date on which the final payment of
principal of and interest on such Bond becomes finally due
and payable, which will be the Payment Date in August 2030.
"Stated Principal Balance": As defined in Section 1.01 of the Servicing
Agreement.
"Sub-Pool": Either of Sub-Pool 1 or Sub-Pool 2.
"Sub-Pool 1": Collectively, all of the Mortgage Loans and any successor
REO identified from time to time on Exhibit A-1 to the Servicing Agreement.
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"Sub-Pool 2": Collectively, all of the Mortgage Loans and any successor
REO identified from time to time on Exhibit A-2 to the Servicing Agreement.
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"Sub-Pool Bond Principal Payment Amount": For either Sub-Pool and any
Payment Date, an amount equal the sum of the following amounts:
(a) the principal portions of all Monthly Payments (other than Balloon
Payments) due or deemed due in respect of the Mortgage Loans in such
Sub-Pool for their respective Due Dates occurring during the related
Collection Period, to the extent received or advanced;
(b) all Principal Prepayments received on the Mortgage Loans in such
Sub-Pool during the related Collection Period;
(c) the principal component of all Assumed Scheduled Payments due on or
before the related Due Date (if received or advanced) with respect to
any Mortgage Loan in such Sub-Pool that is delinquent in respect of its
Balloon Payment;
(d) the Stated Principal Balance of each Mortgage Loan in such Sub-Pool
that was, during the related Collection Period, repurchased from the
Trust Estate in connection with the breach of a representation or
warranty or purchased from the Trust Estate pursuant to Section 8.01 of
the Servicing Agreement;
(e) all Balloon Payments and, to the extent not included in the
preceding clauses, any other principal payment on any Mortgage Loan in
such Sub-Pool received on or after the maturity date thereof, to the
extent received during the related Collection Period; and
(f) to the extent not included in the preceding clauses, all
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds that
were received on the Mortgage Loans in such Sub-Pool during the related
Collection Period and that were identified and applied by the Master
Servicer as recoveries of principal thereof.
"Successor Person": As defined in Section 9.08(a)(i).
"Tax Opinion": An opinion of Independent counsel that a contemplated
action will not cause a tax to be imposed on the Issuer or any Person having an
Ownership Interest in any Bond.
"Treasury Rate": The yield calculated by the linear interpolation of
the yields, as reported in Federal Reserve Statistical Release H.15--Selected
Interest Rates under the heading "U.S. government securities/Treasury constant
maturities for the week ending prior to the date of the relevant principal
prepayment, of U.S. Treasury constant maturities with a maturity date (one
longer and one shorter) most nearly approximating the maturity date of the
Mortgage Loan prepaid. If Release H.15 is no longer published, the Indenture
Trustee will select a comparable publication to determine the Treasury Rate.
"Treasury Regulations": Temporary, final or proposed regulations (to
the extent that by reason of their proposed effective date such proposed
regulations would apply to the Issuer) of the United States Department of the
Treasury.
"Trust": The trust established pursuant to the Owner Trust Agreement.
"Trust Estate": As defined in the Granting Clause.
"Trustee Report": As defined in Section 6.01(a) hereof.
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"UCC": The Uniform Commercial Code as in effect in any applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and in form
sufficient for filing pursuant to the UCC, as in effect in the relevant
jurisdiction.
"Yield Maintenance Premium": As defined in Section 1.01 of the
Servicing Agreement.
Section 1.02. Rules of Construction.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States;
(3) the word "including" shall be construed to be followed by the words
"without limitation";
(4) article and section headings are for the convenience of the reader
and shall not be considered in interpreting this Indenture or the intent of the
parties hereto;
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
article, section or other subdivision; and
(6) the pronouns used herein are used in the masculine and neuter
genders but shall be construed as feminine, masculine or neuter, as the context
requires.
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ARTICLE II
THE BONDS
Section 2.01. Forms; Denominations.
The Bonds shall be substantially in the form attached hereto as Exhibit
A, provided that any of the Bonds may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Bonds are admitted to trading, or to conform to general usage. Each
Class of Bonds will be issuable only in denominations corresponding to initial
aggregate Bond Principal Balance as of the Closing Date of, with respect to the
Class A Bonds, not less than $5,000 and in integral multiples of $1 in excess
thereof and, with respect to the Class B, Class C, Class D, Class E, Class F and
Class G Bonds, not less than $50,000 and in integral multiples of $1 in excess
thereof; provided, however, that a single Bond of each Class thereof may be
issued in a different denomination.
Section 2.02. Execution, Authentication, Delivery and Dating.
(a) The Bonds shall be executed by manual or facsimile signature on
behalf of the Issuer by any Authorized Officer of the Owner Trustee. Bonds
bearing the manual or facsimile signatures of individuals who were at any time
the authorized officers of the Owner Trustee shall be entitled to all benefits
under this Indenture, subject to the following sentence, 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. No Bond shall be entitled to any benefit under this
Indenture, or be valid for any purpose, however, unless there appears on such
Bond a certificate of authentication substantially in the form provided for
herein executed by the Indenture Trustee by manual signature, and such
certificate of authentication upon any Bond shall be conclusive evidence, and
the only evidence, that such Bond has been duly authenticated and delivered
hereunder. All Bonds shall be dated the date of their authentication.
(b) The Indenture Trustee may appoint one or more agents (each an
"Authenticating Agent") with power to act on its behalf and subject to its
direction in the authentication of Bonds in connection with transfers and
exchanges under Sections 2.05 and 2.06, as fully to all intents and purposes as
though each such Authenticating Agent had been expressly authorized by those
Sections to authenticate the Bonds. For all purposes of this Indenture, the
authentication of Bonds by an Authenticating Agent shall be deemed to be the
authentication of Bonds "by the Indenture Trustee". The Indenture Trustee shall
be the initial Authenticating Agent.
Any corporation, bank, trust company or association into which any
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation, bank, trust company or association resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation, bank, trust company or association
succeeding to the corporate trust business of any Authenticating Agent, shall be
the successor of such Authenticating Agent hereunder, without the execution or
filing of any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation, bank, trust company or
association.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Issuer. The Indenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Issuer.
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Upon receiving such notice of resignation or upon such a termination, the
Indenture Trustee may, or at the direction of the Issuer shall, promptly appoint
a successor Authenticating Agent, give written notice of such appointment to the
Issuer and give notice of such appointment to the Bondholders. Upon the
resignation or termination of the Authenticating Agent and prior to the
appointment of a successor, the Indenture Trustee shall act as Authenticating
Agent.
Each Authenticating Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities that the Indenture Trustee is
entitled to hereunder as if it were the Indenture Trustee.
Section 2.03. Acknowledgment of Receipt of the Mortgage Loans.
(a) The Indenture Trustee, by its execution and delivery of
this Indenture, acknowledges receipt by it, subject to the proviso in the
definition of Mortgage Loan File, the provisions of Section 2.03 of the
Servicing Agreement and the further review provided for below in Section 2.03(b)
of (i) the Mortgage Loan Files, (ii) a fully executed counterpart of each Loan
Sale Agreement, and (iii) all other assets delivered to it and included in the
Trust Estate, in good faith and without notice of any adverse claim, and
declares that it holds and will hold such documents and the other documents
received by it that constitute portions of the Mortgage Loan Files, and that it
holds and will hold such other assets included in the Trust Estate, on behalf of
all present and future Bondholders. In addition, the Indenture Trustee hereby
certifies to the Company, the Manager, the Owner Trust, the Owner Trustee, the
Master Servicer, the Special Servicer and the Seller, that except as
specifically identified in the Schedule of Exceptions to Mortgage Loan File
Delivery attached hereto as Exhibit D-1, (i) the Mortgage Note related to each
Mortgage Loan is in its possession and (ii) such Mortgage Note and the
endorsement thereon has been reviewed by it and appears regular on its face
(handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Borrower) and relates to such Mortgage Loan.
(b) Not later than the 75th day following the Closing Date
(and, if any exceptions are noted, again not later than the first anniversary of
the Closing Date), the Indenture Trustee shall certify in writing to the
Company, the Manager, the Owner Trust, the Owner Trustee, the Master Servicer,
the Special Servicer and the Seller that, as to each Mortgage Loan listed on the
Loan Schedule (other than any such Mortgage Loan specifically identified in any
exception report annexed thereto as not being covered by such certification) (A)
all documents specified in clauses (i), (ii), (iii), (iv) and (vii) (and all
documents specified in clauses (v), (vi), (viii) and (ix)) to the extent that
the Indenture Trustee has been instructed in writing that the documents
specified in such clauses are required to be in the Mortgage Loan File relating
to any Mortgage Loan) of the definition of "Mortgage Loan File" are in its
possession, (B) all documents received by it with respect to such Mortgage Loan
have been reviewed by it and appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Borrower) and relate to such Mortgage Loan, and (C) based on
the examinations referred to in Section 2.03(a) above and this Section 2.03(b)
and only as to the foregoing documents, the information set forth in such
Mortgage Loan Schedule with respect to the items specified in clauses (ii), (iv)
and (v) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage Loan File.
(c) The Indenture Trustee shall not be under any duty or
obligation to inspect, review or examine any of the documents, instruments,
certificates or other papers relating to the Mortgage Loans delivered to it to
determine that the same are valid, legal, effective, genuine, enforceable, in
recordable form, sufficient or appropriate for the represented purpose or that
they are other than what they purport to be on their face.
The Indenture Trustee shall not assign, sell, dispose of or transfer
any interest in the Mortgage Loans or any other asset constituting the Trust
Estate (except as expressly provided herein) or knowingly permit
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the Mortgage Loans or any other asset constituting the Trust Estate to be
subjected to any lien, claim or encumbrance arising by, through or under the
Indenture Trustee or any Person claiming by, through or under
the Indenture Trustee.
Section 2.04. The Bonds Generally.
(a) The aggregate Bond Principal Balance of the Bonds that may be
authenticated and delivered under this Indenture is limited to $305,853,000,
except for Bonds authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Bonds pursuant to Sections 2.05, 2.06
and 2.07 below. Such aggregate Bond Principal Balance shall be divided among
nine Classes having the respective Class designations, initial Bond Principal
Balances, Bond Interest Rates and Assumed Final Payment Dates as follows:
INITIAL
CLASS ▇.▇▇▇▇ PRINCIPAL BOND INTEREST ASSUMED FINAL
DESIGNATION BALANCE RATE(1) PAYMENT DATE
----------- ------- ------- ------------
Class A-1A $43,000,000 6.06% 10/20/07
Class A-1B $140,373,000 6.56% 04/20/08
Class A-2 $32,710,000 LIBOR + 0.28% 04/20/08
Class B $15,889,000 6.74% 04/20/08
Class C $19,066,000 6.94% 06/20/08
Class D $20,655,000 7.58% 06/20/08
Class E $4,767,000 7.58% 06/20/08
Class F $18,271,000 6.06% 06/20/08
Class G $11,122,000 6.06% 06/20/08
---------------------
(1) Expressed as a percent per annum.
The Stated Maturity for each Class of Bonds is the Payment Date in
August 2030.
(b) Each Bond of a particular Class shall rank pari passu with each
other Bond of such Class and be equally and ratably secured by the Trust Estate.
All Bonds of a particular Class shall be substantially identical except as to
denominations and as expressly permitted in this Indenture.
(c) This Indenture shall evidence a continuing lien on and security
interest in the Trust Estate to secure the full payment of the principal,
interest and other amounts on all the Bonds, which, in the case of any Class of
Bonds, shall in all respects be equally and ratably secured hereby without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery of the Bonds of such Class.
Section 2.05. Registration of Transfer and Exchange of Bonds.
(a) At all times during the term of this Indenture, there shall be
maintained at the office of a registrar appointed by the Indenture Trustee (the
"Bond Registrar") a register (the "Bond Register") in which, subject to such
reasonable regulations as the Bond Registrar may prescribe, the Bond Registrar
shall provide for the registration of Bonds and of transfers and exchanges of
Bonds as herein provided. The Office of the
-▇▇-
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall initially be located at LaSalle National Bank, ▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Asset
Backed Securities Trust Services Group-Impac CMB Trust 1998-C1. The Indenture
Trustee is hereby initially appointed (and hereby agrees to act in accordance
with the terms hereof) as Bond Registrar for the purpose of registering Bonds
and transfers and exchanges of Bonds as herein provided. The Indenture Trustee
may appoint, by a written instrument delivered to the Issuer, any other bank or
trust company to act as Bond Registrar under such conditions as the Indenture
Trustee may prescribe, provided that the Indenture Trustee shall not be relieved
of any of its duties or responsibilities hereunder as Bond Registrar by reason
of such appointment. If the Indenture Trustee resigns or is removed in
accordance with the terms hereof, the successor trustee shall immediately
succeed to its predecessor's duties as Bond Registrar. The Issuer, the Manager,
the Company and the Owner Trustee shall have the right to inspect the Bond
Register or to obtain a copy thereof at all reasonable times upon reasonable
prior notice, and to rely conclusively upon a certificate of the Bond Registrar
as to the information set forth in the Bond Register.
(b) No transfer, sale, pledge or other disposition of any Private Bond
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the 1933 Act and any applicable state securities laws in reliance on Rule 144 A
under the 1933 Act to a Qualified Institutional Buyer that is acquiring such
Private Bond for its own account or for the account of another Qualified
Institutional Buyer, and otherwise complies with this Section 2.05. If a
transfer of any Private Bond is to be made without registration under the 1933
Act (other than in connection with the initial issuance thereof or a transfer
thereof by the Company or one of its Affiliates), then the Bond Registrar shall
refuse to register such transfer unless it receives (and upon receipt, may
conclusively rely upon) either (i) a certificate from the Bondholder desiring to
effect such transfer substantially in the form attached as Exhibit C-1A hereto;
or (ii) a certificate from the Bondholder desiring to effect such transfer
substantially in the form attached as Exhibit C-1B hereto and a certificate from
such Bondholder's prospective transferee substantially in the form attached
either as Exhibit C-2 hereto; or (iii) an Opinion of Counsel satisfactory to the
Indenture Trustee to the effect that such transfer may be made without
registration under the 1933 Act (which Opinion of Counsel shall not be an
expense of the Trust Estate or of the Issuer, the Company, the Manager, the
Owner Trustee, the Indenture Trustee or the Bond Registrar in their respective
capacities as such), together with the written certifications as to the facts
surrounding such transfer from the Bondholder desiring to effect such transfer
or such Bondholder's prospective Transferee on which such Opinion of Counsel is
based. If any such transfer of a Private Bond held by the related transferor and
also to be held by the related transferee in the form of a Book-Entry Bond is to
be made without registration under the Securities Act, the transferor will be
deemed to have made as of the transfer date each of the representations and
warranties set forth on Exhibit C-1A or Exhibit C-1B hereto in respect of such
Bond and the transferee will be deemed to have made as of the transfer date each
of the representations and warranties set forth on Exhibit C-2 hereto in respect
of such Private Bond.
None of the Issuer, the Company, the Indenture Trustee or the Bond
Registrar is obligated to register or qualify any Class of Private Bonds under
the 1933 Act or any other securities law or to take any action not otherwise
required under this Indenture to permit the transfer of any Private Bond or
interest therein without registration or qualification. Any Bondholder desiring
to effect a transfer of Private Bonds or interests therein shall, and does
hereby agree to, indemnify the Company, the Issuer, the Manager, the Owner
Trustee, the Indenture Trustee, the Master Servicer, the Special Servicer and
the Bond Registrar against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
(c) No transfer of a Bond or any interest therein shall be made to any
employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, ▇▇▇▇▇ plans and bank collective investment
funds, insurance company general separate accounts and other entities in which
such
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plans, accounts or arrangements are invested, that is subject to ERISA or the
Code (each, a "Plan"), or to any Person who is directly or indirectly purchasing
such Bond or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, if any such transfer will result in any prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code. Accordingly,
each purchaser of a Bond will be deemed to represent and warrant that either (i)
no part of the assets to be used by it to acquire and hold the Bonds constitutes
assets of any Plan or (ii) one or more statutory or administrative exemptions
applies, such that its acquisition and holding of the Bonds does not and will
not constitute or otherwise result in a non-exempt prohibited transaction in
violation of Section 406 of ERISA or Section 4975 of the Code and will not
subject the Issuer, the Company, the Indenture Trustee, the Owner Trustee, the
Master Servicer or the Special Servicer to any obligation or liability
(including liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in the Indenture or the Owner Trust Agreement. Prior to the
transfer of a Class F Bond, a potential purchaser must provide an affirmative
representation, substantively to the effect of the foregoing sentence, in the
form of Exhibit F. Prior to the transfer of a Class G Bond, a potential
transferee must provide the Indenture Trustee an opinion of counsel which
establishes to the satisfaction of the Indenture Trustee that the purchase of
the Class G Bond is permissible under applicable law, will not constitute or
result in any prohibited transaction under ERISA or Section 4975 of the Code and
will not subject the Company, the Indenture Trustee, the Owner Trustee, the
Master Servicer or the Special Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in this Indenture, which opinion of counsel
shall not be an expense of the Company, the Indenture Trustee, the Owner
Trustee, the Master Servicer or the Special Servicer.
(d) No transfer of any Class G or any interest in any Class G Bond
shall be made by the Seller or any QRS thereof (in the case of any such Bonds,
unless they would be characterized as indebtedness for federal income tax
purposes, in the opinion of Independent counsel, upon the transfer thereof)
unless the Indenture Trustee shall have received an opinion of Independent
counsel to the effect that such transfer will not cause the Issuer to be subject
to an entity-level federal income tax to which REITs and QRS are not otherwise
subject.
(e) If a Person is acquiring any Bond or interest therein as a
fiduciary or agent for one or more accounts, such Person shall be deemed to
certify that (or in the case of an interest in a Book-Entry Bond, will be deemed
to have represented and certified that) it has (i) sole investment discretion
with respect to each such account and (ii) full power to make the foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in subsections (b) and (c) of this
Section 2.05.
(f) Subject to the preceding provisions of this Section 2.05, upon
surrender for registration of transfer of any Bond at the offices of the Bond
Registrar maintained for such purpose, the Owner Trustee on behalf of the Issuer
shall execute and the Indenture Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Bonds of the
same Class of a like aggregate Bond Principal Balance.
(g) At the option of any Bondholder, its Bonds may be exchanged for
other Bonds of authorized denominations of the same Class of a like aggregate
Bond Principal Balance, upon surrender of the Bonds to be exchanged at the
offices of the Bond Registrar maintained for such purpose. Whenever any Bonds
are so surrendered for exchange, the Owner Trustee on behalf of the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver the Bonds which
the Bondholder making the exchange is entitled to receive.
(h) Every Bond presented or surrendered for 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 the form
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satisfactory to the Bond Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange of
Bonds, but the Owner Trustee, the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Bonds.
(j) All Bonds surrendered for transfer and exchange shall be physically
canceled by the Bond Registrar, and the Bond Registrar shall dispose of such
canceled Bonds in accordance with its standard
procedures.
(k) The Bond Registrar or the Indenture Trustee shall provide to each
of the Issuer, the Owner Trustee, the Manager and the Company, upon reasonable
written request and at the expense of the requesting
party, an updated copy of the Bond Register.
(l) The Issuer shall provide adequate inventory (either an executed
copy or a copy on diskette) of the Class F and Class G Bonds.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Bonds.
If any mutilated Bond is surrendered to the Bond Registrar, the Owner
Trustee on behalf of the Issuer shall execute and the Indenture Trustee shall
authenticate and deliver, in exchange therefor, a new Bond of the same Class and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer, the Indenture Trustee and
the Bond Registrar (i) evidence to their satisfaction of the destruction
(including mutilation tantamount to destruction), loss or theft of any Bond and
the ownership thereof, and (ii) such security or indemnity as may be reasonably
required by them to hold each of them, and any agent of any of them harmless,
then, in the absence of notice to the Issuer or the Bond Registrar that such
Bond has been acquired by a bona fide purchaser, the Owner Trustee on behalf of
the Issuer shall execute and the Indenture Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Bond, a new Bond of the
same Class, tenor and denomination registered in the same manner, dated the date
of its authentication and bearing a number not contemporaneously outstanding.
Upon the issuance of any new Bond under this Section 2.06, the Owner
Trustee, Indenture Trustee and the Bond Registrar may require the payment by the
Bondholder of an amount sufficient to pay or discharge any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the reasonable fees and expenses of the
Authenticating Agent and the Indenture Trustee) in connection therewith.
Every new Bond issued pursuant to this Section 2.06 in lieu of any
destroyed, mutilated, lost or stolen Bond shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
mutilated, lost or stolen Bond shall be at any time enforceable by any Person,
and such new Bond shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Bonds of its Class duly
issued hereunder.
The provisions of this Section 2.06 are exclusive and shall preclude
(to the extent permitted by applicable law) all other rights and remedies with
respect to the replacement or payment of mutilated, de stroyed, lost or stolen
Bonds.
Section 2.07. Bondholder Lists.
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Bondholders, which list, upon request, will be made available to the Indenture
Trustee insofar as the Indenture Trustee is no longer the Bond Registrar. Upon
written request of any Bondholder made for purposes of communicating with other
Bondholders with respect to their rights under this Indenture, the Bond
Registrar shall promptly furnish such Bondholder with a list of the other
Bondholders of record identified in the Bond Register at the time of the
request. Every Bondholder, by receiving such access, agrees with the Bond
Registrar that the Bond Registrar will not be held accountable in any way by
reason of the disclosure of any information as to the names and addresses of any
Bondholder regardless of the source from which such information was derived.
Section 2.08. Persons Deemed Owners.
The Owner Trustee, the Issuer, the Indenture Trustee, the Bond
Registrar and any agents of any of them, may treat the Person in whose name a
Bond is registered as the owner of such Bond for the purpose of receiving
payments of principal, interest and other amounts in respect of such Bond and
for all other purposes, whether or not such Bond shall be overdue, and none of
the Owner Trustee, the Issuer, the Indenture Trustee, the Bond Registrar or any
agents of any of them, shall be affected by notice to the contrary.
Section 2.09. Bond Account.
(a) On or prior to the date hereof, the Indenture Trustee shall
establish a segregated trust account (the "Bond Account") at its Corporate Trust
Office in Chicago, Illinois (or such other financial institution as necessary to
ensure that the Bond Account is at all times an Eligible Account) in its name,
as Indenture Trustee, bearing a designation clearly indicating that such account
and all funds deposited therein are held for the exclusive benefit of the
Bondholders and the Issuer. The Indenture Trustee shall deposit or cause to be
deposited in the Bond Account, upon receipt (i) all payments and other
collections received on or in respect of the Mortgage Loans subsequent to the
commencement of the initial Collection Period. Except as provided in this
Indenture, the Indenture Trustee, in accordance with the terms of this
Indenture, shall have exclusive control and sole right of withdrawal with
respect to the Bond Account. Funds in the Bond Account shall not be commingled
with any other monies. All monies deposited from time to time in the Bond
Account (including any securities or instruments in which such monies are
invested) shall be held by and under the control of the Indenture Trustee in the
Bond Account for the benefit of the Bondholders and the Issuer as herein
provided.
(b) Funds on deposit in the Bond Account shall remain uninvested.
(c) The Indenture Trustee is authorized to make withdrawals from the
Bond Account (the order set forth hereafter in this subsection (c) not
constituting an order of priority for such withdrawals) (i) to make payments on
the Bonds as provided herein, (ii) to the extent of the Indenture Trustee Fee or
any portion thereof not paid by the Servicer pursuant to the Servicing
Agreement, the Indenture Trustee Fee or such unpaid portion, (iii) to pay all
Extraordinary Expenses in respect of the Issuer or the Trust Estate, (iv) to
make payments to the Issuer or the Owner Trustee in accordance with Section
2.10(c) and (d) and (v) to withdraw any amounts deposited in the Bond Account in
error.
(d) Upon the satisfaction and discharge of this Indenture pursuant to
Section 3.01 of this Indenture, the Indenture Trustee shall pay to the Issuer
all amounts, if any, held by it remaining as part of the Trust Estate.
Section 2.10. Payments on the Bonds.
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(a) Subject to Section 2.10(b), the Issuer agrees to pay
(i) on each Payment Date prior to Stated Maturity for the
Bonds, but only to the extent of the Available Amount, interest on and
principal of the respective Classes of Bonds in the amounts and in
accordance with the priorities set forth in Section 2.10(c); and
(ii) on each Payment Date prior to Stated Maturity for the
Bonds, any Bond Prepayment Premium Amounts for the respective Classes
of Bonds in the amounts and in accordance with the priorities set forth
in Section 2.10(d); and
(iii) at Stated Maturity of the Bonds, the entire Bond
Principal Balance of each Bond, together with all accrued and unpaid
interest thereon.
Amounts properly withheld under the Code by any Person from a payment
to any Holder of a Bond of interest, principal or other amounts, or any such
payment set aside on the Final Payment Date for such Bond as provided in Section
2.10(b), shall be considered as having been paid by the Issuer to such
Bondholder for all purposes of this Indenture.
(b) With respect to each Payment Date, any interest, principal and
other amounts payable on the Bonds shall be paid to the Person that is the
registered holder thereof at the close of business on the related Record Date;
provided, however, that interest, principal and other amounts payable at the
Final Payment Date of any Bond shall be payable only against surrender thereof
at the offices of the Indenture Trustee designated in the notice provided
pursuant to Section 2.11(b). Payments of interest, principal and other amounts
on the Bonds shall be made on the applicable Payment Date other than the Final
Payment Date, subject to applicable laws and regulations, by wire transfer to
such account as such Bondholder shall designate by written instruction received
by the Indenture Trustee not later than the Record Date related to the
applicable Payment Date or otherwise by check mailed on or before the Payment
Date to the Person entitled thereto at such Person's address appearing on the
Bond Register. The Indenture Trustee shall pay each Bond in whole or in part as
provided herein on its Final Payment Date in immediately available funds from
funds in the Bond Account as promptly as possible after presentation to the
Indenture Trustee of such Bond at the office of the Bond Registrar but shall
initiate such payment no later than 3:00 p.m., New York City time, on the day
after such presentation, provided, that such presentation has been made no later
than 1:00 p.m., New York City time on the day prior to its Final Payment Date.
If presentation is made after 1:00 p.m., New York City time, on any day, such
presentation shall be deemed to have been made on the immediately succeeding
Business Day.
Except as provided in the following sentence, if a Bond is issued in
exchange for any other Bond during the period commencing at the close of
business at the office or agency where such exchange occurs on any Record Date
and ending before the opening of business at such office or agency on the
related Payment Date, no interest, principal or other amounts will be payable on
such Payment Date in respect of such new Bond, but will be payable on such
Payment Date only in respect of the prior Bond. Interest, principal and other
amounts payable on any Bond issued in exchange for any other Bond during the
period commencing at the close of business at the office or agency where such
exchange occurs on the Record Date immediately preceding the Final Payment Date
for such Bonds and ending on the Final Payment Date for such Bonds, shall be
payable to the Person that surrenders the new Bond as provided in this Section
2.10(b).
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 related
Bond Owners that it represents and to each
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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 related Bond Owners that it represents.
None of the parties hereto shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law. The Company and the
Indenture Trustee shall perform their respective obligations under the Letter of
Representations.
All payments of interest, principal and other amounts made with
respects to any Class of Bonds will be allocated PRO RATA among the Outstanding
Bonds of such Class based on the Bond Principal Balance.
If any Bond on which the final payment was due is not presented for
payment on its Final Payment Date, then the Indenture Trustee shall set aside
such payment in a segregated account separate from the Bond Account but which
constitutes an Eligible Account, and the Indenture Trustee and the Issuer shall
act in accordance with Section 5.10 in respect of the unclaimed funds.
(c) On each Payment Date, the Indenture Trustee shall withdraw from the
Bond Account and apply the Available Amount for such Payment Date among the
respective Classes of Bondholders and the holders of the Owner Trust
Certificates for the following purposes and in the following order of priority,
in each case to the extent of remaining funds:
(i) to the holders of the Class A Bonds in respect of interest, PRO
RATA based on such amounts distributable thereon, up to an amount equal
to all Payable Bond Interest in respect of each such Class of Bonds for
such Payment Date and, to the extent not previously paid, for all prior
Payment Dates (plus interest on such unpaid amount at the
then-applicable Bond Interest Rate);
(ii) to the holders of the Class A Bonds related to each Sub-Pool in
respect of principal and allocated between the respective Classes of
Class A Bonds related to each Sub-Pool as described below, up to an
amount equal to the lesser of (a) the aggregate Bond Principal Balance
of such Classes of Class A Bonds then outstanding and (b) the related
Sub-Pool Bond Principal Payment Amount for such Payment Date;
(iii) if, following distributions pursuant to clause (ii) above, the
aggregate Bond Principal Balance of either group of Class A Bonds has
been reduced to zero (the "Retired Class A Bonds"), to the holders of
the unrelated group of Class A Bonds, if such Class A Bonds are still
outstanding (the "Outstanding Class A Bonds") in respect of principal,
allocated between the respective Classes of such Outstanding Class A
Bonds as described below, up to an amount equal to the lesser of (a)
the aggregate Bond Principal Balance of such Classes of Outstanding
Class A Bonds and (b) the excess of the Sub-Pool Bond Principal Payment
Amount for such Payment Date related to the Retired Class A Bonds over
the amount thereof paid on such Payment Date as described in clause
(ii) above.
(iv) to the holders of the Class B Bonds in respect of interest up to
an amount equal to all Payable Bond Interest in respect of such Class
of Bonds for such Payment Date and, to the extent not previously paid,
for all prior Payment Dates (plus interest on such unpaid amount at the
then-applicable Bond Interest Rate);
(v) to the holders of the Class B Bonds in respect of principal up to
an amount equal to the lesser of (a) the then outstanding Bond
Principal Balance of the Class B Bonds and (b) the excess, if any, of
the Aggregate Bond Principal Payment Amount for such Payment Date over
the amount thereof paid on such Payment Date pursuant to clauses (ii)
and (iii) above;
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(vi) to the holders of the Class C Bonds in respect of interest up to
an amount equal to all Payable Bond Interest in respect of such Class
of Bonds for such Payment Date and, to the extent not previously paid,
for all prior Payment Dates (plus interest on such unpaid amount at the
then-applicable Bond Interest Rate);
(vii) to the holders of the Class C Bonds in respect of principal up to
an amount equal to the lesser of (a) the then outstanding Bond
Principal Balance of the Class C Bonds and (b) the excess, if any, of
the Aggregate Bond Principal Payment Amount for such Payment Date over
the amount thereof paid on such Payment Date pursuant to clauses (ii),
(iii) and (v) above;
(viii) to the holders of the Class D Bonds in respect of interest up to
an amount equal to all Payable Bond Interest in respect of such Class
of Bonds for such Payment Date and, to the extent not previously paid,
for all prior Payment Dates (plus interest on such unpaid amount at the
then-applicable Bond Interest Rate);
(ix) to the holders of the Class D Bonds in respect of principal up to
an amount equal to the lesser of (a) the then outstanding Bond
Principal Balance of the Class D Bonds and (b) the excess, if any, of
the Aggregate Bond Principal Payment Amount for such Payment Date over
the amount thereof paid on such Payment Date pursuant to clauses (ii),
(iii), (v) and (vii) above;
(x) to the holders of the Class E Bonds in respect of interest up to an
amount equal to all Payable Bond Interest in respect of such Class of
Bonds for such Payment Date and, to the extent not previously paid, for
all prior Payment Dates (plus interest on such unpaid amount at the
then-applicable Bond Interest Rate);
(xi) to the holders of the Class E Bonds in respect of principal up to
an amount equal to the lesser of (a) the then outstanding Bond
Principal Balance of the Class E Bonds and (b) the excess, if any, of
the Aggregate Bond Principal Payment Amount for such Payment Date over
the amount thereof paid on such Payment Date pursuant to clauses (ii),
(iii), (v), (vii) and (ix) above;
(xii) to the holders of the Class F Bonds in respect of interest up to
an amount equal to all Payable Bond Interest in respect of such Class
of Bonds for such Payment Date and, to the extent not previously paid,
for all prior Payment Dates (plus interest on such unpaid amount at the
then-applicable Bond Interest Rate);
(xiii) to the holders of the Class F Bonds in respect of principal up
to an amount equal to the lesser of (a) the then outstanding Bond
Principal Balance of the Class F Bonds and (b) the excess, if any, of
the Aggregate Bond Principal Payment Amount for such Payment Date over
the amount thereof paid on such Payment Date pursuant to clauses (ii),
(iii), (v), (vii), (ix) and (xi)above;
(xiv) to the holders of the Class G Bonds in respect of interest up to
an amount equal to all Payable Bond Interest in respect of such Class
of Bonds for such Payment Date and, to the extent not previously paid,
for all prior Payment Dates (plus interest on such unpaid amount at the
then-applicable Bond Interest Rate);
(xv) to the holders of the Class G Bonds in respect of principal up to
an amount equal to the lesser of (a) the then outstanding Bond
Principal Balance of the Class G Bonds and (b) the excess, if any, of
the Aggregate Bond Principal Payment Amount for such Payment Date over
the amount thereof paid on such Payment Date pursuant to clauses (ii),
(iii), (v), (vii), (ix), (xi) and (xiii) above; and
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(xvi) after the foregoing distributions have been made, so long as
there are not more than three holders of Owner Trust Certificates, to
such Certificateholders, to the extent the Indenture Trustee has
received the names and wiring instructions or addresses of such
Certificateholders and instructions of the Owner Trustee, and in the
event that there are more than three holders of Owner Trust
Certificates, to the Owner Trustee, an amount equal to the balance of
the Available Amount for such Payment Date.
Distributions of principal to the holders of the Class A Bonds related
to each Sub-Pool will be allocated between the respective Classes of Class A
Bonds related to such Sub-Pool as follows:
(i) prior to the Class A Credit Support Depletion Date;
(A) in the case of the Class A-1 Bonds, first to the holders
of the Class A-1A Bonds until the Bond Principal Balance
thereof has been reduced to zero and then to the holders of
the Class A-1B Bonds; and
(B) to the holders of the Class A-2 Bonds until the Bond
Principal Balance thereof has been reduced to zero; and
(ii) on and after the Class A Credit Support Depletion Date, the
Aggregate Bond Principal Payment Amount will be paid, to the holders of
the Class A Certificates PRO RATA based on their then
outstanding Bond Principal Balances.
(d) On each Payment Date, the Indenture Trustee shall withdraw from the
Bond Account the Bond Prepayment Premium Amount for such Payment Date and shall
pay such amount as additional interest to the holders of the Fixed Rate Bonds
entitled to principal on such Payment Date in an amount equal to, as to each
such Class, the product of such amount and the related Class Prepayment Premium
Percentage for such Payment Date; provided, however, that such payments shall be
made only from, and shall not exceed, Prepayment Premiums received during the
related Collection Period. Any Prepayment Premium remaining after making the
foregoing payments shall be paid, so long as there are not more than three
holders of Owner Trust Certificates, to such Certificateholders, to the extent
the Indenture Trustee has received the names and wiring instructions or
addresses of such Certificateholders and instructions of the Owner Trustee, and
in the event that there are more than three holders of Owner Trust Certificates,
to the Owner Trustee for distribution to the holders of the Owner Trust
Certificates as provided in the Owner Trust Agreement.
(e) The Bonds are nonrecourse obligations solely of the Issuer and will
be payable only from the Trust Estate. Each Bondholder will be deemed to have
agreed that they have no rights or claims against the Issuer directly and may
only look to the Trust Estate to satisfy the Issuer's obligations hereunder.
Each Bondholder will be deemed to have agreed, by its acceptance of its Bond,
not to file or join in filing any petition in bankruptcy or commence any similar
proceeding in respect of the Issuer for a period of one year and one day
following payment in full of such Bond. Notwithstanding the provisions of this
Section 2.10 (e), the Issuer or another entity may, subject to Section 9.06, at
any time advance funds to the Indenture Trustee for the purpose of allowing the
Indenture Trustee to make required payments on the Bonds. If the Issuer or
another entity makes such advance, it shall be entitled to request the Indenture
Trustee to withdraw from the Bond Account for payment to the Issuer on any
subsequent Payment Date the amount so advanced.
(f) In connection with making any payments pursuant to Section
2.10(c)(xvi) and 2.10(d), the Indenture Trustee shall provide to the Owner
Trustee and the Manager on the related Payment Date by facsimile transmission,
confirmed in writing by first class mail or overnight courier, a written
statement detailing the amounts so paid.
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Section 2.11. Final Payment Notice.
(a) Notice of final payment under Section 2.10(b) shall be given by the
Indenture Trustee as soon as possible but not later than two Business Days prior
to the Final Payment Date for a particular Class to each Bondholder of such
Class as of the close of business on the Record Date preceding the Final Payment
Date for such Class at such Bondholder's address appearing in the Bond Register
and to each Rating Agency, and also to the Company, the Manager and the Owner
Trustee.
(b) All notices of final payment in respect of a Class of Bonds shall
state (i) the Final Payment Date for such Bonds, (ii) the amount of the final
payment for such Bonds and (iii) the place where such Bonds are to be
surrendered for payment.
(c) Notice of final payment of the Bonds shall be given by the
Indenture Trustee in the name and at the expense of the Indenture Trustee.
Failure to give notice of final payment, or any defect therein, to any
Bondholder shall not impair or affect the validity of the final payment of any
other Bond.
Section 2.12. Compliance with Withholding Requirements and
Reporting.
Notwithstanding any other provision of this Indenture, the Indenture
Trustee shall comply with all Federal withholding requirements with respect to
payments to Bondholders of interest, or other amounts that the Indenture Trustee
reasonably believes are applicable under the Code. The consent of Bondholders
shall not be required for any such withholding.
The Indenture Trustee shall (i) cause to be prepared and forwarded to
Holders of the Bonds and (ii) cause to be prepared and filed with the Internal
Revenue Service Form 1099 at the time or times and in the
manner required by the Code.
Section 2.13. Cancellation.
The Issuer may at any time deliver to the Bond Registrar 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 canceled by the Bond Registrar.
All Bonds delivered to the Indenture Trustee for payment shall be
forwarded to the Bond Registrar. All such Bonds and all Bonds surrendered for
transfer and exchange in accordance with the terms hereof shall be canceled and
disposed of by the Bond Registrar in accordance with its customary procedures.
Section 2.14 Book-Entry Bonds.
(a) The Book-Entry Bonds shall be delivered as one or more Bonds held
by the Book-Entry Custodian or, if appointed to hold such Bonds as provided
below, the Depository and registered in the name of the Depository or its
nominee and, except as provided in Section 2.14(c), (d) or (e) below, transfer
of such Bonds may not be registered by the Bond Registrar unless such transfer
is to a successor Depository that agrees to hold such Bonds for the respective
Bond Owners with Ownership Interests therein. Except as provided in Section
2.14(c), (d) or (e) below, such Bond Owners shall hold and transfer their
respective Ownership Interests in and to such Bonds through the Book-Entry
facilities of the Depository and, except as provided in Section 2.14(c), (d) or
(e) below, shall not be entitled to definitive, fully registered Bonds
("Definitive Bonds") in respect of such Ownership Interests. All transfers by
Bond Owners of their respective Ownership Interests in the Book-Entry Bonds to
be held by the related transferees as Book-Entry Bonds shall be made in
accordance with the procedures established by the Depository Participant or
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brokerage firm representing each such Bond Owner. Each Depository Participant
shall only transfer the Ownership Interests in the Book-Entry Bonds of Bond
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. The Indenture Trustee is
hereby initially appointed as the Book-Entry Custodian and hereby agrees to act
as such in accordance herewith and in accordance with the agreement that it has
with the Depository authorizing it to act as such. The Book- Entry Custodian
may, and, if it is no longer qualified to act as such, the Book-Entry Custodian
shall, appoint, by a written instrument delivered to the Company, the Manager,
the Owner Trustee, the Indenture Trustee, the Master Servicer and the Special
Servicer any other transfer agent (including the Depository or any successor
Depository) to act as Book-Entry Custodian under such conditions as the
predecessor Book-Entry Custodian and the Depository or any successor Depository
may prescribe, provided that the predecessor Book-Entry Custodian shall not be
relieved of any of its duties or responsibilities by reason of any such
appointment of other than the Depository. If the Indenture Trustee resigns or is
removed in accordance with the terms hereof, the successor trustee or, if it so
elects, the Depository shall immediately succeed to its predecessor's duties as
Book-Entry Custodian. The Depositor shall have the right to inspect, and to
obtain copies of, any Bonds held as Book-Entry Bonds by the Book-Entry
Custodian.
(b) The Company, the Manager, the Owner Trustee, the Indenture Trustee,
the Master Servicer, the Special Servicer and the Bond Registrar may for all
purposes, including the making of payments due on the Book-Entry Bonds, deal
with the Depository as the authorized representative of the Bond Owners with
respect to such Bonds for the purposes of exercising the rights of Bondholders
hereunder. The rights of Bond Owners with respect to the Book-Entry Bonds shall
be limited to those established by law and agreements between such Bond Owners
and the Depository Participants and brokerage firms representing such Bond
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of the Book-Entry Bonds with respect to any particular matter shall not
be deemed inconsistent if they are made with respect to different Bond Owners.
The Indenture Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Bondholders and shall give notice to
the Depository of such record date.
(c) If (i)(A) the Company advises the Indenture Trustee and the Bond
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book- Entry Bonds
(or any portion thereof), and (B) the Company is unable to locate a qualified
successor, or (ii) the Company at its option advises the Indenture Trustee and
the Bond Registrar in writing that it elects to terminate the Book-Entry system
through the Depository with respect to the Book-Entry Bonds (or any portion
thereof), the Bond Registrar shall notify all affected Bond Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Bond to such Bond Owners requesting the same. Upon surrender to the
Bond Registrar of the Book-Entry Bonds (or any portion thereof) by the Book-
Entry Custodian or the Depository, as applicable, and the delivery of
registration instructions from the Depository for registration of transfer
(which surrender and delivery the Indenture Trustee shall use reasonable efforts
to cause to occur), the Issuer shall execute, and the Bond Registrar shall
authenticate and deliver, the Definitive Bonds in respect of such Bonds to the
Bond Owners identified in such instructions. None of the Company, the Manager,
the Owner Trustee, the Indenture Trustee, the Master Servicer, the Special
Servicer or the Bond Registrar 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.
(d) Subject to the provisions of Section 2.05 governing registration of
transfer and exchange, the Bond Owners may transfer their respective Ownership
Interests in and to the Book-Entry Bonds as, and may exchange their respective
Book-Entry Bonds for, Bonds in the form of Definitive Bonds. If (i) any Bond
Owner that wishes to so transfer or exchange its Book-Entry Bonds, or any Bond
Owner that is required by Section 2.14(b) to transfer its Book-Entry Bonds in
the form of Definitive Bonds, notifies the Indenture Trustee and the Bond
Registrar of such transfer or exchange and (ii) transfers such Book-Entry Bonds
to the
-▇▇-
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in its capacity as such, through the Book-Entry facilities of
the Depository, then the Book- Entry Custodian shall decrease the balance of
such Book-Entry Bonds or, the Indenture Trustee shall use reasonable efforts to
cause the surrender to the Bond Registrar of such Book-Entry Bonds by the
Book-Entry Custodian or the Depository, as applicable, and thereupon, the
Indenture Trustee shall execute and the Bond Registrar shall authenticate and
deliver to such Bond Owner or its designee one or more Definitive Bonds of the
same Class in authorized denominations and with a like aggregate Percentage
Interest. Neither the Indenture Trustee nor the Bond Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction or transfer imposed under Article II of this Indenture or under
applicable law with respect to any transfer of any Bond, or any interest
therein, other than to require delivery of the certification(s) and/or opinions
of counsel described in Article II applicable with respect to changes in
registration of record ownership of Bonds in the Bond Registrar. The Indenture
Trustee and the Bond Registrar shall have no liability for transfers, including
transfers made through the book-entry facilities of the Depository or between or
among Depository Participants or beneficial owners made in violation of
applicable restrictions.
(e) Subject to the provisions of Section 2.05 governing registration of
transfer and exchange, Class F Bonds (i) held as Definitive Bonds may be
transferred in the form of Book-Entry Bonds in reliance on Rule 144A under the
Securities Act to one or more Qualified Institutional Buyers that are acquiring
such Definitive Bonds for their own accounts or for the accounts of other
Qualified Institutional Buyers and (ii) held as Definitive Bonds by a Qualified
Institutional Buyer for its own account or for the account of another Qualified
Institutional Buyer may be exchanged for Book-Entry Bonds, in each case upon
surrender of such Bonds for registration of transfer or exchange at the offices
of the Bond Registrar maintained for such purpose. Whenever any such Bonds are
so surrendered for transfer or exchange, either the Book-Entry Custodian shall
increase the balance of the related Book-Entry Bonds or the Issuer shall execute
and the Bond Registrar shall authenticate and deliver, as provided in Section
2.14(a), the Book-Entry Bonds for which such Bonds were transferred or
exchanged, as necessary and appropriate. No Holder of Definitive Bonds other
than a Qualified Institutional Buyer holding such Bonds for its own account or
for the account of another Qualified Institutional Buyer may exchange such Bonds
for Book-Entry Bonds. Further, any Bond Owner of a Book-Entry Bond other than
any such Qualified Institutional Buyer shall notify the Indenture Trustee and
the Bond Registrar of its status as such and shall transfer such Book-Entry Bond
to the Bond Registrar, in its capacity as such, through the Book-Entry
facilities of the Depository, whereupon, and also upon surrender to the Bond
Registrar of such Book-Entry Bond by the Book-Entry Custodian or the Depository,
as applicable (which surrender the Indenture Trustee shall use reasonable
efforts to cause to occur), the Issuer shall execute and the Bond Registrar
shall authenticate and deliver to such Bond Owner or such Bond Owner's nominee
one or more Definitive Bonds of the same Class in authorized denominations and
with a like aggregate Percentage Interest.
(f) Upon the issuance of Definitive Bonds for purposes of evidencing
ownership of any Bonds formerly held as Book-Entry Bonds, the registered holders
of such Definitive Bonds shall be recognized as Bondholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Bonds.
(g) The Depositor shall provide an adequate inventory of Definitive
Bonds to the Indenture Trustee.
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ARTICLE III
SATISFACTION AND DISCHARGE
Section 3.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect except as to (i) any
surviving rights herein expressly provided for, including any rights of transfer
or exchange of Bonds herein expressly provided for, (ii) in the case of clause
(1)(B) below, the rights of the Bondholders hereunder to receive payment of the
Bond Principal Balance of and interest on the Bonds and any other rights of the
Bondholders hereunder, and (iii) the provisions of Section 3.02, when
(1) either (A) all Bonds theretofore authenticated and delivered (other
than (i) Bonds which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.06 and (ii) Bonds for which payment of
money has theretofore been deposited in the Bond Account by the Indenture
Trustee and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 5.10) have been delivered to the Bond Registrar for
cancellation; or (B) all such Bonds not theretofore delivered to the Bond
Registrar for cancellation (i) have become due and payable, or (ii) will become
due and payable on the next Payment Date, and in the case of clause (B)(i) or
(B)(ii) above, cash in an amount sufficient to pay and discharge the entire
indebtedness on such Bonds not theretofore delivered to the Bond Registrar for
cancellation or sufficient to pay the Bond Principal Balance thereof and any
interest thereon accrued to the date of such deposit (in the case of Bonds which
have become due and payable) or to the end of the Accrual Period for the next
Payment Date has been deposited with the Indenture Trustee as trust funds in
trust for these purposes;
(2) the Issuer has paid or caused to be paid all other sums payable or
reasonably expected to become payable by the Issuer to the Indenture Trustee,
the Owner Trustee, the Company, the Manager, the Master Servicer, the Special
Servicer, each of the Rating Agencies and each of the Bondholders (in each case,
if any);
(3) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate of the Owner Trustee stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with; and
(4) the Issuer has furnished to the Indenture Trustee a Tax Opinion
with respect to the actions contemplated by this Section 3.01.
Notwithstanding the foregoing, the obligations of the Issuer to the
Indenture Trustee under Section 5.04 hereof and the obligations of the Indenture
Trustee to the Bondholders under Section 3.02 hereof shall survive satisfaction
and discharge of this Indenture.
Section 3.02. Application of Trust Money.
Subject to the provisions of Section 2.10, Section 7.01 and Section
5.10, all Cash deposited with the Indenture Trustee pursuant to Section 3.01
shall be held in the Bond Account and applied by the Indenture Trustee, in
accordance with the provisions of the Bonds and this Indenture to pay the
Persons entitled thereto, the interest, principal and other amounts payable on
the Bonds.
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ARTICLE IV
EVENTS OF DEFAULT; REMEDIES
Section 4.01. Events of Default.
"Event of Default," wherever used herein with respect to the Bonds,
means 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) any failure to pay all interest on and principal of any
Bond when the same shall have become due and payable, it being
understood that, prior to the Stated Maturity of the Bonds, principal
and interest will be due and payable only to the extent of the
Available Amount;
(ii) any material default in the observance or performance of
any covenant or agreement of the Issuer made in this Indenture (other
than a covenant or agreement, a default in the observance or
performance of which is elsewhere in this Section specifically dealt
with), which default shall continue unremedied for a period of 60 days
after there shall have been given to the Issuer by the Indenture
Trustee, or to the Issuer and the Indenture Trustee by the Bondholders
holding at least 25% of the aggregate Bond Principal Balance of the
Outstanding Bonds, a written notice specifying such default and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder;
(iii) the entry by a court having jurisdiction over the Issuer
of (A) a decree or order for relief in respect of the Issuer in an
involuntary case or proceeding under any applicable federal or state
delinquency, bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Issuer as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of or for the Issuer under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Issuer or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order not stayed or
dismissed and in effect for a period of more than sixty (60)
consecutive days;
(iv) the commencement by the Issuer of a voluntary case or
proceeding under any applicable federal or state delinquency,
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Issuer to the entry of a decree or order for relief
in respect of the Issuer in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Issuer, or the filing by the
Issuer of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by the
Issuer to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of or for the Issuer or of
any substantial part of the Issuer's property, or the making by the
Issuer of an assignment for the benefit of creditors, or the admission
by the Issuer in writing of the Issuer's inability to pay its debts
generally as they become due;
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(v) the impairment of the validity or effectiveness of this
Indenture or any Grant hereunder, or the subordination or, except as
permitted hereunder, termination or discharge of the lien hereof, or
the creation of any lien, charge, security interest, mortgage or other
encumbrance with respect to any part of the Trust Estate or any
interest in or proceeds of the Trust Estate, or the failure of the lien
of this Indenture to constitute a valid first-priority security
interest in the Trust Estate, in each case to the extent that such
impairment, subordination, encumbrance or failure materially interferes
with the practical realization of the benefits or security provided by
this Indenture, provided, that if such impairment, subordination, the
creation of such lien, or the failure of the lien on the Trust Estate
to constitute such a security interest shall be susceptible of cure, no
Event of Default shall arise until the continuation of any such default
unremedied for a period of 30 days after receipt of notice thereof;
(vi) a material breach of the representations and warranties
of the Issuer contained in Section 9.04 hereof; or
(vii) any failure by a Holder of Class G Bonds (unless, in the
opinion of Independent counsel, such Bonds are classified as
indebtedness for federal income tax purposes), or by any holder of
Owner Trust Certificates, to maintain its status as a REIT or a QRS,
which failure shall continue unremedied for a period of 60 days after
there shall have been given to the Issuer by the Indenture Trustee, or
to the Issuer and the Indenture Trustee by the Bondholders holding at
least 25% of the aggregate Bond Principal Balance of the Outstanding
Bonds, a written notice specifying such failure and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder.
Section 4.02. 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 may, or at the direction of the
Bondholders representing 66 2/3% of the aggregate Bond Principal Balance of all
Outstanding Bonds affected by such Event of Default, shall declare all of the
Bonds to be immediately due and payable, by a notice in writing to the Issuer,
and upon any such declaration the unpaid Bond Principal Balance of such Bonds,
together with Payable Bond Interest thereon through the date of acceleration,
shall become immediately due and payable.
At any time after such declaration of acceleration has been made and
before a judgment or decree for payment of the money due in respect of the Bonds
has been obtained by the Indenture Trustee as hereinafter provided in this
Article IV, the Bondholders representing 66 2/3% of the aggregate Bond Principal
Balance of all Outstanding Bonds, by written notice to the Owner Trustee on
behalf of the Issuer and to the Indenture Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(i) 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
(ii) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and
counsel; and
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(b) all Events of Default, other than the nonpayment of the
principal of the Bonds that has become due solely by virtue of such
acceleration, have been cured or waived as provided in Section 4.12.
No such rescission and annulment shall affect any subsequent default or
impair any right consequent thereto.
Section 4.03. Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee.
(a) If the Issuer fails to pay all amounts due upon an acceleration of
the Bonds under Section 4.02 forthwith upon demand and such declaration and its
consequences shall not have been rescinded and annulled, the Indenture Trustee,
in its capacity as Indenture Trustee and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Issuer or any other obligor upon such Bonds and
collect the monies adjudged or decreed to be payable in the manner provided by
law out of the Trust Estate, wherever situated, or may institute and prosecute
such non-judicial proceedings in lieu of judicial proceedings as are then
permitted by applicable law.
(b) If an Event of Default occurs and is continuing, the Indenture
Trustee may, in its discretion, proceed to protect and enforce its rights and
the rights of the Bondholders by such appropriate proceedings as the Indenture
Trustee shall deem most effective 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.
(c) In case (x) there shall be pending, relative to the Issuer 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, (y) a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or shall have taken possession of the
Issuer or its property or such Person or (z) there shall be pending a comparable
judicial proceeding brought by creditors of the Issuer or affecting the property
of the Issuer, the Indenture Trustee, irrespective of whether the principal of
or interest on any Bonds shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Bonds and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including any
claim for reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective attorneys, and for
reimbursement of all reasonable expenses and liabilities incurred, and
all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee, except as a result of willful misconduct, negligence
or bad faith of the Indenture Trustee) and of the Bondholders allowed
in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Bondholders in any election of a trustee, a
standby trustee or Person performing similar functions in any such
proceedings;
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(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Bondholders and
of the Indenture Trustee on their and its behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Bondholders allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Bondholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Bondholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective attorneys, 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 willful misconduct, negligence or bad faith of the
Indenture Trustee or predecessor Indenture Trustee.
(d) 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 related Bondholder or to
authorize the Indenture Trustee to vote in respect of the claim of any
Bondholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(e) In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Bondholders, and it shall not be necessary to make any
Bondholder a party to any such proceedings.
(f) In the event that the Indenture Trustee, following an Event of
Default hereunder institutes proceedings to foreclose on the Trust Estate, the
Indenture Trustee shall promptly give a notice to that effect
to the Owner Trustee, the Manager and each Rating Agency.
(g) All rights of action and claims under this Indenture or the Bonds
may be prosecuted and enforced by the Indenture Trustee without the possession
of any of the Bonds or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and its counsel,
be for the ratable benefit of the Bondholders in respect of which such judgment
has been recovered, subject to the payment priorities of Section 2.11.
Section 4.04. Remedies.
If an Event of Default has occurred and is continuing, and the Bonds
have been declared due and payable pursuant to Section 4.02 hereof and such
declaration and its consequences have not been rescinded
and annulled, the Indenture Trustee may do one or more of the following:
(a) institute, or cause to be instituted, Proceedings for the
collection of all amounts then payable on or under this Indenture with
respect to the Bonds, whether by declaration of acceleration or
otherwise, enforce any judgment obtained, and collect from the Trust
Estate monies adjudged due;
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(b) 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 applicable law,
provided, however, that the Indenture Trustee shall give the Issuer
written notice of any private sale called by or on behalf of the
Indenture Trustee pursuant to this Section 4.04(b)
at least 10 days prior to the date fixed for such private sale;
(c) institute, or cause to be instituted, Proceedings from
time to time for the complete or partial foreclosure with respect to
the Trust Estate;
(d) exercise, or cause to be exercised, any remedies of a
secured party under the Uniform Commercial Code and take any other
appropriate action to protect and enforce the rights and remedies of
the Indenture Trustee or the Holders of the Bonds hereunder; and
(e) maintain possession of the Trust Estate and, in its own
name or in the name of the Issuer or otherwise, collect and otherwise
receive in accordance with the Servicing Agreement any money or
property at any time payable or receivable on account of or in exchange
for any of the assets of the Trust Estate;
provided, however, that the Indenture Trustee shall not, unless required by law,
sell or otherwise liquidate all or any portion of the Trust Estate following any
Event of Default except in accordance with Section 4.15.
Section 4.05. Application of Money Collected.
Any money collected by the Indenture Trustee pursuant to this Article
shall be deposited in the Bond Account and, on each Payment Date, to the extent
not otherwise applied to cover Extraordinary Expenses and other amounts due to
the Fiscal Agent, the Indenture Trustee, the Master Servicer and the Special
Servicer pursuant to Section 3.05 of the Servicing Agreement, shall be applied
in accordance with Section 2.10 hereof and, in case of the distribution of such
money on account of the principal of or interest on the Bonds, upon presentation
and surrender of the Bonds if fully paid.
Section 4.06. Limitation on Suits.
Except as provided in Section 4.07, no Bondholder 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:
(1) such Bondholder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(2) the Bondholders holding more than 50% in Bond Principal
Balance of each Class of Outstanding Bonds shall have made written
request to the Indenture Trustee to institute proceedings in respect of
such Event of Default in its own name as Indenture Trustee hereunder;
(3) such Bondholder or Bondholders have offered to the
Indenture Trustee adequate indemnity or security satisfactory to the
Indenture Trustee against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity or security has failed to
institute any such proceeding;
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(5) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Bondholders holding more than 50% in Bond Principal
Balance of each Class of Outstanding Bonds; and
(6) an Event of Default shall have occurred and be continuing;
it being understood and intended that no one or more of such Bondholders shall
have any right in any manner whatever by virtue of, or by availing itself or
themselves of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Bondholders, or to obtain or to seek to obtain
priority or preference over any other of such Bondholders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Bondholders. Subject to the foregoing
restrictions, the Bondholders may exercise their rights under this Section 4.06
independently.
Section 4.07. Unconditional Right of Bondholders to Receive
Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Bond at Maturity shall have the right, which is absolute and unconditional,
to receive payments of interest, principal and other amounts then due on such
Bond (subject to Sections 2.10 and 4.05) and to institute suit for the
enforcement of any such payment (subject to Section 4.06), and such rights shall
not be impaired without the consent of such Bondholder, unless a non-payment has
been cured pursuant to the next to last paragraph of Section 4.02. The Issuer
shall, however, be subject to only one consolidated lawsuit by the Bondholders,
or by the Indenture Trustee on behalf of the Bondholders, for any one cause of
action arising under this Indenture or otherwise.
Section 4.08. 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, waived, rescinded or abandoned for any reason,
or has been determined adversely to the Indenture Trustee or to such Bondholder,
then and in every such case, subject to any determination in such proceeding,
the Issuer, the Indenture Trustee and the Bondholders shall be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Indenture Trustee and the Bondholders shall
continue as though no such proceeding had been instituted.
Section 4.09. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Bonds in Section 2.06, no right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Bondholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 4.10. Delay or Omission Not Waiver.
No delay or omission of the Indenture Trustee, or any Bondholder 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 Indenture or by law
to the Indenture Trustee or to the Bondholders may be exercised from time to
time, and as often as may be deemed
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expedient, to the extent permitted by applicable law, by the Indenture Trustee
or the Bondholders, as the case may be.
Section 4.11. Control by Bondholders.
The Bondholders holding more than 50% in aggregate Bond Principal
Balance of the affected Classes of Outstanding Bonds shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee, provided, that such direction shall not be in conflict
with any rule of law or with this Indenture or involve the Indenture Trustee in
personal liability and provided, further, that the Indenture Trustee may take
any other action deemed proper by the Indenture Trustee which is not
inconsistent with such direction. Notwithstanding the foregoing, the Bondholders
will not be required to provide, and the Indenture Trustee will not be required
to obtain, a Tax Opinion in the case of a direction by the Bondholders to the
Indenture Trustee, following an Event of Default, to realize upon the Trust
Estate by liquidating the assets of the Trust Estate or otherwise.
Section 4.12. Waiver of Past Defaults.
Prior to the acceleration of the maturity of the Bonds, the Bondholders
representing 66 2/3% in aggregate Bond Principal Balance of the affected Classes
of Outstanding Bonds may on behalf of the Bondholders of all the Bonds waive any
past default hereunder and its consequences, except a default
(1) in the payment of principal of or interest on any Bond,
which waiver shall require the waiver by Bondholders holding 100% in
aggregate Bond Principal Balance of the Outstanding Bonds affected; or
(2) in respect of a covenant or provision hereof which under
Article VIII cannot be modified or amended without the consent of the
Holder of each Outstanding Bond affected, which waiver shall require
the waiver by each Holder of an Outstanding Bond affected;
(3) depriving the Indenture Trustee or any Bondholder of a
lien or the benefit of a lien, as the case may be, upon any part of the
Trust Estate, which waiver shall require the consent of the
Indenture Trustee or such Bondholder, as the case may be; or
(4) depriving the Indenture Trustee, the Master Servicer or
the Special Servicer of any fee, reimbursement for any expense
incurred, or any indemnification to which the Indenture Trustee, the
Master Servicer or the Special Servicer is entitled, which waiver shall
require the consent of the Indenture Trustee, the Master Servicer and
the Special Servicer, as applicable.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon. Any costs or expenses
incurred by the Indenture Trustee in connection with such acceleration and prior
to such waiver shall be reimbursable to the Indenture Trustee as an
Extraordinary Expense from amounts on deposit in the Bond Account.
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Section 4.13. Undertaking for Costs.
All parties to this Indenture agree, and each Bondholder by its
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 and expenses based on time expended, 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 shall
not apply to any suit instituted by the Owner Trustee on behalf of the Issuer,
or to any suit instituted by the Indenture Trustee, or to any suit instituted by
any Bondholder, or group of Bondholders, holding in the aggregate at least 25%
in aggregate Bond Principal Balance of Outstanding Bonds or to any suit
instituted by any Bondholder for the enforcement of the payment of the principal
of or interest on any Bond on or after the Maturity of such Bond.
Section 4.14. Waiver of Stay or Extension Laws.
The Owner Trustee on behalf of 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 to take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Owner Trustee
on behalf of the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of such law and covenants that it will
not hinder, delay or impede the exercise of any power herein granted to the
Indenture Trustee, but will suffer and permit the exercise of every such power
as though no such law had been enacted.
Section 4.15. Sale of Trust Estate.
(a) The power to effect any public or private sale of any
portion of the Trust Estate pursuant to Section 4.04 hereof 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 either the entire Trust
Estate shall have been sold or all amounts payable on the Bonds and under this
Indenture with respect thereto shall have been paid. The Indenture Trustee may
from time to time postpone any 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 such sale but such waiver does
not apply to any amounts to which the Indenture Trustee is otherwise entitled
under Section 5.04 of this Indenture.
(b) The Indenture Trustee shall not sell the Trust Estate, or
any portion thereof, unless:
(i) the Holders of Bonds representing more than 50% of the
Bond Principal Balance of the Outstanding Bonds consent to, or direct
the Indenture Trustee to make, such sale; or
(ii) the proceeds of such sale would be not less than the
entire amount which would be payable to the Holders of the Bonds, in
full payment thereof, in accordance with Section 4.05, on
the Payment Date next succeeding the date of such sale.
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The foregoing provisions of this Section 4.15 shall not
preclude or limit the ability of the Indenture Trustee to purchase all or any
portion of the Trust Estate at any sale, public or private, and the purchase by
the Indenture Trustee of all or any portion of the Trust Estate at any sale
shall not be deemed a sale or disposition thereof for purposes of this Section
4.15(b).
(c) Unless the Holders of all Outstanding Bonds have otherwise
consented or directed the Indenture Trustee, at any 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 (ii) of subsection (b) of this Section 4.15 has not been
established by the Indenture Trustee and no Person bids an amount equal to or
greater than such amount, the Indenture Trustee shall in accordance with
paragraph (ii) of subsection (d) of this Section 4.15 bid an amount at least
$1.00 more than the highest other bid in order to preserve the Trust Estate.
(d) In connection with a sale of all or any portion of the
Trust Estate:
(i) 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 Outstanding 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;
(ii) the Indenture Trustee may bid for and acquire the
property offered for sale in connection with any sale thereof, 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 as a
result of such sale in accordance with Section 4.05 on the Payment Date
next succeeding the date of such sale and (B) the expenses of the sale
and of any Proceedings in connection therewith which are reimbursable
to it, without being required to produce the Bonds in order to complete
any such sale or in order for the net sale price to be credited against
such Bonds, and any property so acquired by the Indenture Trustee shall
be held and dealt with by it in accordance with the provisions of this
Indenture;
(iii) the Indenture Trustee shall execute and deliver, without
recourse, representation or warranty, an appropriate instrument of
conveyance transferring its interest in any portion of the Trust
Estate in connection with a sale thereof;
(iv) the Indenture Trustee is hereby irrevocably appointed the
agent and attorney-in-fact of the Issuer to transfer and convey the
Issuer's 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
(v) 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.
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Section 4.16. 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.
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ARTICLE V
THE INDENTURE TRUSTEE
Section 5.01. Certain Duties and Responsibilities.
The Issuer hereby irrevocably constitutes and appoints the Indenture
Trustee and any Responsible Officer thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and authority
in place and stead of the Issuer and in the name of the Issuer or in its own
name or in the name of a nominee, from time to time in the Indenture Trustee's
discretion, for the purpose of enforcing the rights, powers and remedies of the
Issuer under the Owner Trust Agreement and to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Indenture and the
Owner Trust Agreement, all as set forth in this Section.
(a) The rights, duties and liabilities of the Indenture Trustee in
respect of this Indenture shall be as follows:
(i) The Indenture Trustee shall have the full power and
authority to do all things not inconsistent with the provisions of this
Indenture that it may deem advisable in order to enforce the provisions
hereof or to take any action with respect to a default or an Event of
Default hereunder, or to institute, appear in or defend any suit or
other proceeding with respect hereto, or to protect the interests of
the Bondholders. The Indenture Trustee shall not be answerable or
accountable except for its own bad faith, willful misconduct or
negligence. The Issuer shall prepare and file or cause to be filed, at
the Issuer's expense, and the Indenture Trustee shall execute, a UCC
Financing Statement, describing the Issuer as debtor, the Indenture
Trustee as secured party and the Trust Estate as the collateral, in all
appropriate locations in the State of Delaware promptly following the
initial issuance of the Bonds, and the Issuer shall prepare and file at
each such office, and the Indenture Trustee shall execute, continuation
statements with respect thereto, in each case within six months prior
to each fifth anniversary of the original filing. The Issuer is hereby
authorized and obligated to make, at the expense of the Issuer, all
required filings and refilings of which the Issuer becomes aware,
necessary to preserve the liens created by this Indenture as provided
herein. The Indenture Trustee shall not be required to take any action
to exercise or enforce the trusts hereby created which, in the opinion
of the Indenture Trustee, shall be likely to involve expense or
liability to the Indenture Trustee, unless the Indenture Trustee shall
have received an agreement satisfactory to it in its sole reasonable
discretion to indemnify it against such liability and expense. Except
as otherwise expressly provided herein, the Indenture Trustee shall not
be required to ascertain or inquire as to the performance or observance
of any of the covenants or agreements contained herein, or in the Owner
Trust Agreement or in any other instruments to be performed or observed
by the Issuer or any party to the Owner Trust Agreement.
(ii) Subject to the other provisions of this Article V, the
Indenture Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders, or other instruments
furnished to the Indenture Trustee that are specifically required to be
furnished pursuant to any provisions of this Indenture, shall examine
them to determine whether they are on their face in the form required
by this Indenture to the extent expressly set forth herein. If any such
instrument is found on its face not to conform to the requirements of
this Indenture in a material manner, the Indenture Trustee shall
request the party providing such instrument to have the instrument
corrected, and if the instrument is not corrected to the Indenture
Trustee's reasonable satisfaction, the Indenture
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Trustee will provide notice thereof to the Bondholders. The Indenture
Trustee shall not incur any liability in acting upon any signature,
notice, request, consent, certificate, opinion, or other instrument
reasonably believed by it to be genuine. In administering the trusts
hereunder, the Indenture Trustee may execute any of the trusts or
powers hereunder directly or through its agents or attorneys, provided
that it shall remain liable for the acts of all such agents and
attorneys. The Indenture Trustee may, at the expense of the Trust
Estate consult with counsel, accountants and other professionals to be
selected and employed by it, and the Indenture Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in
accordance with the advice of any such Person nor for any error of
judgment made in good faith by a Responsible Officer of the Indenture
Trustee, unless it shall be proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts.
(iii) The Indenture Trustee shall not have any duty to make,
arrange or ensure the completion of any recording, filing or
registration of any instrument or other document (including any UCC
Financing Statements), or any amendments or supplements to any of said
instruments or to determine if any such instrument or other document is
in a form suitable for recording, filing or registration, and the
Indenture Trustee shall not have any duty to make, arrange or ensure
the completion of the payment of any fees, charges or taxes in
connection therewith.
(iv) Whenever in performing its duties hereunder, the
Indenture Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, the Indenture Trustee may, in the absence of bad faith on
the part of the Indenture Trustee, rely upon (unless other evidence in
respect thereof be specifically prescribed herein) an Officer's
Certificate of the Owner Trustee on behalf of the Issuer, and such
Officer's Certificate shall be full warrant to the Indenture Trustee
for any action taken, suffered or omitted by it on the faith thereof.
(v) Except in its capacity as successor to the Master
Servicer, the Indenture Trustee shall not have any obligations to see
to the payment or discharge of any liens (other than the liens hereof)
upon the Mortgage Loans, or to see to the application of any payment of
the principal of or interest on any note secured thereby or to the
delivery or transfer to any Person of any property released from any
such lien, or to give notice to or make demand upon any mortgagor,
mortgagee, trustor, beneficiary or other Person for the delivery or
transfer of any such property. The Indenture Trustee (and any successor
trustee or co-trustee in its individual capacity) nevertheless agrees
that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any liens or encumbrances on the Mortgage
Loans arising as a result of the Indenture Trustee (or such successor
trustee or co-trustee, as the case may be) acting improperly in its
capacity as Indenture Trustee (or such successor trustee or co-trustee,
as the case may be).
(vi) The Indenture Trustee shall not be concerned with or
accountable to any Person for the use or application of any deposited
monies or of any property or securities or the proceeds thereof that
shall be released or withdrawn in accordance with the provisions hereof
or of any property or securities or the proceeds thereof that shall be
released from the lien hereof or thereof in accordance with the
provisions hereof or thereof and the Indenture Trustee shall not have
any liability for the acts of other parties that are not in accordance
with the provisions hereof.
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(b) The rights, duties and liabilities of the Indenture Trustee in
respect of the Mortgage Loans and this Indenture, in addition to those set forth
in Section 5.01(a), shall be as follows:
(i) except during the continuance of an Event of Default with
respect to the Bonds, 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) the Indenture Trustee may, in the absence of bad faith on
its part, 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; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether
or not they conform on their face to the requirements of this
Indenture, to the extent expressly set forth herein.
(c) Subject to Section 4.12 hereof, in case an Event of Default known
to the Indenture Trustee with respect to the Bonds has occurred and is
continuing, the Indenture Trustee shall exercise such of 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 his own affairs.
(d) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(i) this subsection shall not be construed to limit the effect
of subsections (a), (b) or (c) of this Section;
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Indenture Trustee, unless it shall be proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the directions of the Bondholders of more than 50%
(unless a lower or higher percentage of Bondholders is expressly
permitted or required to authorize such action hereunder, in which case
such lower or higher percentage) in aggregate Bond Principal Balance of
the affected Classes of Outstanding Bonds, relating to the time, method
and place of conducting any proceeding for any remedy available to the
Indenture Trustee, or exercising any trust or power conferred upon the
Indenture Trustee, under this Indenture with respect to the Bonds; and
(iv) the Indenture Trustee shall not be charged with knowledge
of a default in the observance of any covenant contained in Section
9.06 unless either (i) a Responsible Officer of the Indenture Trustee
shall have actual knowledge of such default or (ii) written notice of
such default shall have been given by the Issuer or by any Bondholder
to and received by a Responsible Officer of the Indenture Trustee.
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Section 5.02. Notice of Defaults.
(a) The Indenture Trustee, promptly but not later than five (5)
Business Days after a Responsible Officer of the Indenture Trustee acquires
actual knowledge of the occurrence of any default under this Indenture, shall
notify the Issuer, the Bondholders and the Rating Agencies of any such default,
unless all such defaults known to the Indenture Trustee shall have been cured
before the giving of such notice or unless the same is rescinded and annulled,
or waived by the Bondholders pursuant to Section 4.02 or Section 4.12; provided
that, except in the case of a default in the payment of the principal of or
interest on any of the Bonds, the Indenture Trustee shall be protected in
withholding such notice to the Bondholders for a period of no longer than 30
days if and so long as the board of directors, the executive committee or a
trust committee composed of directors and/or Responsible Officers of the
Indenture Trustee reasonably and in good faith determines that the withholding
of such notice is in the best interest of the Bondholders. For the purpose of
this subsection (a), the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to the Bonds.
(b) The Indenture Trustee also agrees, promptly but no later than five
(5) Business Days after a Responsible Officer of the Indenture Trustee acquires
actual knowledge of the occurrence of any event of default under the Management
Agreement, to notify the Issuer, the Bondholders and the Rating Agencies of
such event of default.
Section 5.03. Certain Rights of Indenture Trustee.
Subject to the provisions of Section 5.01, in connection with this
Indenture:
(a) the Indenture Trustee may request and rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties as may be required by such party or
parties pursuant to the terms of this Indenture;
(b) any request or direction of the Owner Trustee on behalf of the
Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or
Issuer Order and any resolution of the board of directors of the Owner Trustee
may be sufficiently evidenced by a Resolution;
(c) whenever in the administration of this Indenture the Indenture
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Indenture Trustee
(unless other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Indenture Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel rendered thereby shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Indenture Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Bondholders pursuant to this Indenture, unless such
Bondholders shall have offered to the Indenture Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction;
(f) the Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
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order, bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Indenture Trustee in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Indenture Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Issuer, personally or by agent or attorney;
(g) the Indenture Trustee may, at its own expense (except as otherwise
provided in Section 5.04), execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys of the Indenture Trustee, provided that it shall remain liable for the
acts of all such attorneys and agents;
(h) the Indenture Trustee shall not be required to provide any surety
or bond of any kind in connection with the execution or performance of its
duties hereunder;
(i) except with respect to the representations made by it in Section
5.06, the Indenture Trustee shall not make any representations as to the
validity or sufficiency of this Indenture; and
(j) the Indenture Trustee shall not at any time have any responsibility
or liability with respect to the legality, validity or enforceability of the
Mortgage Loans other than its failure to act in accordance with the terms of
this Agreement or in its capacity as successor to the Master Servicer.
Section 5.04. Compensation and Reimbursement.
(a) Subject to Section 5.04(b), the Issuer hereby agrees:
(1) to pay or cause to be paid to the Indenture Trustee,
in accordance with the terms of the Servicing
Agreement, monthly the Indenture Trustee Fee as
compensation for all services rendered by it
hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of
a trustee of an express trust);
(2) to reimburse, indemnify and hold harmless the
Indenture Trustee and any director, officer,
employee, agent, Affiliate or Control Person of the
Indenture Trustee for any loss, liability, expense or
disbursements (including without limitation costs and
expenses of litigation, and of investigation,
reasonable counsel fees, damages, judgments and
amounts paid in settlement) incurred in connection
with any act (including any actions taken by the
Indenture Trustee or its agents pursuant to Article
IV) or omission on the part of the Indenture Trustee
with respect to this Indenture, the Mortgage Loans or
the Bonds (other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith
or negligence in the performance of duties, or as may
arise from a breach of any representation or warranty
of the Indenture Trustee set forth herein).
With respect to any third party claim:
(i) the Indenture Trustee shall give the Issuer and
the Bondholders written notice thereof promptly after the
Indenture Trustee shall have knowledge thereof;
(ii) while maintaining control over its own defense,
the Indenture Trustee shall cooperate and consult fully with
the Issuer in preparing such defense; and
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(iii) notwithstanding the foregoing provisions of
this Section 5.04(a), the Indenture Trustee shall not be
entitled to reimbursement out of the Bond Account for
settlement of any such claim by the Indenture Trustee entered
into without the prior consent of the Issuer,
which consent shall not be unreasonably withheld.
The Indenture Trustee agrees to fully perform its duties under
this Indenture notwithstanding any failure on the part of the Issuer to make any
payments, reimbursements or indemnifications to the Indenture Trustee pursuant
to this Section 5.04(a); provided, however, that (subject to Sections 5.04(b)
and 5.04(c)) nothing in this Section 5.04 shall be construed to limit the
exercise by the Indenture Trustee of any right or remedy permitted under this
Indenture in the event of the Issuer's failure to pay any sums due the Indenture
Trustee pursuant to this Section 5.04.
(b) The obligations of the Issuer set forth in Section 5.04(a) are
nonrecourse obligations solely of the Issuer and will be payable only from the
Trust Estate with respect to the Bonds. The Indenture Trustee hereby agrees that
it has no rights or claims against the Issuer directly and shall only look to
the Trust Estate to satisfy the Issuer's obligations under Section 5.04(a). The
Indenture Trustee also hereby agrees not to file or join in filing any petition
in bankruptcy or commence any similar proceeding in respect of the Issuer.
(c) Upon the occurrence of an Event of Default resulting in an
acceleration of maturity of the Bonds, the Indenture Trustee shall have, as
security for the performance by the Issuer of its obligations under this Section
5.04, a lien ranking senior to the lien of the Bonds upon all property and funds
held or collected as part of the Trust Estate. The Indenture Trustee shall not
institute any proceeding seeking the enforcement of such lien against the Trust
Estate unless (i) such proceeding is in connection with a proceeding in
accordance with Article IV hereof for enforcement of the lien of this Indenture
for the benefit of the Bondholders after the occurrence of an Event of Default
(other than an Event of Default due solely to a breach of this Section 5.04) and
a resulting declaration of acceleration of maturity of such Bonds that has not
been rescinded and annulled, or (ii) such proceeding does not and will not
result in or cause a sale or other disposition of the Trust Estate.
Section 5.05. Corporate Indenture Trustee Required; Eligibility.
The Issuer hereby agrees, for the benefit of the Bondholders, that
there shall at all times be an Indenture Trustee hereunder which shall be a bank
(within the meaning of Section 2(a)(5) of the ▇▇▇▇ ▇▇▇) organized and doing
business under the laws of the United States or any State thereof, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, and subject to supervision or examination
by Federal or State authority, the long term debt of which is rated one rating
below the highest rated Bond but in no event lower than Aa2 by Moody's and "BBB"
by S&P or is otherwise acceptable to each Rating Agency (as evidenced by written
confirmation from each Rating Agency that such bank's acting as Indenture
Trustee would not in and of itself result in a qualification, downgrade or
withdrawal of any of the then-current ratings assigned by such Rating Agency to
the Bonds). If such bank publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such bank shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. The Indenture
Trustee shall at all times meet the requirements of Section 26(a)(1) of the 1940
Act and shall in no event be an Affiliate of the Issuer or an Affiliate of any
Person involved in the organization or operation of the Issuer or be directly or
indirectly controlled by the Issuer. If at any time a Responsible Officer of the
Indenture Trustee becomes aware that the Indenture Trustee has ceased to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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Section 5.06. Authorization of Indenture Trustee.
The Indenture Trustee represents and warrants as to itself:
(a) it is duly organized, validly existing and in good
standing as a national banking association under the laws of the United
States, has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and any and all other
documents to be executed or delivered by it in connection with this
Agreement, and to fulfill its obligations under and to consummate the
transactions contemplated by this Agreement, and this Agreement and
such other documents executed in connection herewith are the legal,
valid and binding obligations of the Indenture Trustee, enforceable
against it in accordance with their respective terms, except as such
terms may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors
generally and by general principles of equity;
(b) the execution and delivery of this Agreement and each
other document to be executed or delivered by it in connection with
this Agreement, and the performance of its obligations hereunder and
thereunder by the Indenture Trustee, will not violate the provisions of
its certificate of incorporation or bylaws, conflict with any provision
of any law or regulation to which it is subject, or conflict with,
result in a breach of or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to which the
Indenture Trustee is a party or by which it is bound, or any order or
decree applicable to the Indenture Trustee, or result in the creation
or imposition of any Lien on any of the Indenture Trustee's assets or
property, which would materially and adversely affect the ability of
the Indenture Trustee to carry out the transactions contemplated by
this Agreement or such other documents executed in connection herewith,
and no consent, approval, authorization or order of or filing with or
notice to any court or governmental agency or body is required for the
execution, delivery and performance by the Indenture Trustee of this
Agreement or such other documents; and
(c) there is no action, suit or proceeding pending against the
Indenture Trustee in any court or by or before any other governmental
agency or instrumentality which would materially and adversely affect
the validity of this Agreement or the ability of the Indenture Trustee
to carry out the transactions contemplated by this Agreement.
Section 5.07. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation, bank, trust company or association into which the
Indenture Trustee may be merged or converted or with which it may be
consolidated, or any corporation, bank, trust company or association resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation, bank, trust company or association
succeeding to all or substantially all the corporate trust business of the
Indenture Trustee, shall be the successor of the Indenture Trustee hereunder,
provided such corporation, bank, trust company or association shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Section 5.08. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article shall
become effective until (i) the acceptance of appointment by the successor
Indenture Trustee in accordance with the applicable requirements of Section 5.09
and (ii) repayment to the predecessor Indenture Trustee of all unpaid fees,
expenses and Advances, including interest on such Advances as provided in the
Servicing Agreement under Articles III and IV thereof.
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(b) The Indenture Trustee may resign at any time by giving written
notice thereof to the Issuer. If the instrument of acceptance by a successor
Indenture Trustee required by Section 5.09 shall not have been delivered to the
Indenture Trustee within 30 days after the giving of such notice of resignation,
the resigning Indenture Trustee may petition any court of competent jurisdiction
for the appointment of its respective successor.
(c) Upon payment to the Indenture Trustee of all costs and expenses
incurred by it in connection with its removal without cause, the Indenture
Trustee may be removed at any time with respect to the Bonds by the Bondholders
of a majority in aggregate Bond Principal Balance of the Outstanding Bonds and
notice of such action by the Bondholders shall be delivered to the Indenture
Trustee and the Issuer.
(d) If at any time:
(i) the Indenture Trustee shall cease to be eligible under
Section 5.05 or the representations of the Indenture Trustee in Section
5.06 shall prove to be untrue in any material respect and the Indenture
Trustee shall fail to resign after written request therefor by the
Manager on behalf of the Issuer or Bondholders of 10% of the aggregate
Bond Principal Balance of the Outstanding Bonds; or
(ii) the Indenture Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Indenture Trustee or its property shall be appointed or any public
officer shall take charge or control of the Indenture Trustee or its
property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Manager on behalf of the Issuer, by a
Resolution, may remove the Indenture Trustee or (ii) subject to Section 4.13,
any Bondholder may, on its own behalf and on behalf of all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Indenture
Trustee for any cause, the Manager on behalf of the Issuer, by a Resolution,
shall promptly remove the Indenture Trustee and appoint a successor Indenture
Trustee who shall comply with the applicable requirements of Section 5.09. If,
within 60 days after such resignation, removal or incapacity, or the occurrence
of such vacancy, a successor Indenture Trustee shall not have been appointed by
the Manager on behalf of the Issuer and shall not have accepted such appointment
in accordance with the applicable requirements of Section 5.09, then a successor
Indenture Trustee shall be appointed by act of the Bondholders of more than 50%
in aggregate Bond Principal Balance of the Outstanding Bonds delivered to the
Owner Trustee on behalf of the Issuer and the retiring Indenture Trustee, and
the successor Indenture Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 5.09, become the successor Indenture Trustee with respect to the Bonds.
If, within 120 days after such resignation, removal or incapacity, or
the occurrence of such vacancy, no successor Indenture Trustee shall have been
so appointed and accepted appointment in the manner required by Section 5.09,
the resigning Indenture Trustee may, on its own behalf and on behalf of all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
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(f) The Issuer shall give notice of any resignation or removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee by giving
notice of such event to the Bondholders. Each notice shall include the name of
the successor Indenture Trustee and the address of its Corporate Trust Office.
Section 5.09. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Indenture Trustee
the successor Indenture Trustee so appointed shall execute, acknowledge and
deliver to the Issuer and to the retiring Indenture Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Indenture Trustee shall become effective and such successor Indenture
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Indenture Trustee;
but, on the request of the Manager on behalf of the Issuer or the successor
Indenture Trustee, such retiring Indenture Trustee shall, upon payment of each
of its fees, execute and deliver an instrument transferring to such successor
Indenture Trustee all the rights, powers and trusts of the retiring Indenture
Trustee, shall duly assign, transfer and deliver to such successor Indenture
Trustee all property and money held by such retiring Indenture Trustee
hereunder, shall take such action as may be requested by the Manager on behalf
of the Issuer to provide for the appropriate interest in the Trust Estate to be
vested in such successor Indenture Trustee, but shall not be responsible for the
recording of such documents and instruments as may be necessary to give effect
to the foregoing.
Upon request of any such successor Indenture Trustee, the Owner Trustee
on behalf of the Issuer shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Indenture Trustee all such
rights, powers and trusts referred to in this Section.
No successor Indenture Trustee shall accept its appointment unless at
the time of such acceptance such successor Indenture Trustee shall be qualified
and eligible under this Article.
Section 5.10. Unclaimed Funds.
The Indenture Trustee is required to hold any payments received by it
with respect to the Bonds that are not paid to the Bondholders in trust for the
Bondholders. Notwithstanding the foregoing, at the expiration of two years
following the Final Payment Date for the Bonds of any Class thereof, any monies
set aside in accordance with Section 2.10(b) for payment of principal, interest
and other amounts on such Bonds remain unclaimed by any lawful owner thereof,
such unclaimed funds and, to the extent required by applicable law, any accrued
interest thereon shall be remitted to the Issuer to be held in trust by the
Issuer for the benefit of the applicable Bondholder until distributed in
accordance with applicable law, and all liability of the Indenture Trustee with
respect to such money shall thereupon cease; provided, that the Indenture
Trustee, before being required to make any such repayment, may, at the expense
of the applicable Bondholder, payable out of such unclaimed funds, to the extent
permitted by applicable law, and otherwise at the expense of the Issuer, cause
to be published at least once but not more than three times in two newspapers in
the English language customarily published on each Business Day and of general
circulation, in New York, New York, a notice to the effect that such monies
remain unclaimed and have not been applied for the purpose for which they were
deposited, and that after a date specified therein, which shall be not less than
30 days after the date of first publication of said notice, any unclaimed
balance of such monies then remaining in the hands of the Indenture Trustee will
be paid to the Issuer upon its written directions to be held in trust for the
benefit of the applicable Bondholder until distributed in accordance with
applicable law. Any successor to the Issuer through merger, consolidation or
otherwise or any recipient of substantially all the assets of the Issuer in a
liquidation of the Issuer shall remain liable for the amount of any unclaimed
balance paid to the Issuer pursuant to this Section 5.10.
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Section 5.11. Illegal Acts.
No provision of this Indenture or any amendment or supplement hereto
shall be deemed to impose any duty or obligation on the Indenture Trustee to do
any act in the performance of its duties hereunder or to exercise any right,
power, duty or obligation conferred or imposed on it, which under any present or
future law shall be unlawful, or which shall be beyond the corporate powers,
authorization or qualification of the Indenture Trustee.
Section 5.12. Communications by the Indenture Trustee.
The Indenture Trustee shall send to the Issuer and the Manager, within
one Business Day after the Maturity thereof, if any principal of or interest on
such Bonds due and payable hereunder is not paid, a
written demand for payment thereof.
Section 5.13. Separate Indenture Trustees and Co-Trustees.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting legal requirements applicable to it in the
performance of its duties hereunder, the Indenture Trustee shall have the power
to, and shall execute and deliver all instruments to, appoint one or more
Persons to act as separate trustees or co-trustees hereunder, jointly with the
Indenture Trustee, of any of the Trust Estate subject to this Indenture, and any
such Persons shall be such separate trustee or co-trustee, with such powers and
duties consistent with this Indenture as shall be specified in the instrument
appointing such Person but without thereby releasing the Indenture Trustee from
any of its duties hereunder. If the Indenture Trustee shall request the Owner
Trustee on behalf of the Issuer to do so, the Owner Trustee on behalf of the
Issuer shall join with the Indenture Trustee in the execution of such
instrument, but the Indenture Trustee shall have the power to make such
appointment without making such request. A separate trustee or co-trustee
appointed pursuant to this Section 5.13 need not meet the eligibility
requirements of Section 5.05.
(b) Every separate trustee and co-trustee shall, to the extent not
prohibited by law, be subject to the following terms and conditions:
(i) the rights, powers, duties and obligations conferred or
imposed upon such separate or co-trustee shall be conferred or imposed
upon and exercised or performed by the Indenture Trustee and such
separate or co-trustee jointly, as shall be provided in the appointing
instrument, except to the extent that under any law of any jurisdiction
in which any particular act is to be performed any nonresident trustee
shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such separate trustee or co-trustee;
(ii) all powers, duties, obligations and rights conferred upon
the Indenture Trustee, in respect of the custody of all cash deposited
hereunder shall be exercised solely by the Indenture Trustee; and
(iii) the Indenture Trustee may at any time by written
instrument accept the resignation of or remove any such separate
trustee or co-trustee, and, upon the request of the Indenture Trustee,
the Owner Trustee on behalf of the Issuer shall join with the Indenture
Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to make effective such resignation
or removal, but the Indenture Trustee shall have the power to accept
such resignation or to make such removal without making such request. A
successor to a separate trustee or co-trustee so resigning or removed
may be appointed in the manner otherwise provided herein.
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(c) Such separate trustee or co-trustee, upon acceptance of such trust,
shall be vested with the estates or property specified in such instrument,
jointly with the Indenture Trustee, and the Indenture Trustee shall take such
action as may be necessary to provide for (i) the appropriate interest in the
Trust Estate to be vested in such separate trustee or co-trustee, (ii) the
execution and delivery of any transfer documentation or bond powers that may be
necessary to give effect to transfer of the Mortgage Loans to the co-trustee.
Any separate trustee or co-trustee may, at any time, by written instrument
constitute the Indenture Trustee, its agent or attorney in fact with full power
and authority, to the extent permitted by law, to do all acts and things and
exercise all discretion authorized or permitted by it, for and on behalf of it
and in its name. If any separate trustee or co-trustee shall be dissolved,
become incapable of acting, resign, be removed or die, all the estates,
property, rights, powers, trusts, duties and obligations of said separate
trustee or co-trustee, so far as permitted by law, shall vest in and be
exercised by the Indenture Trustee, without the appointment of a successor to
said separate trustee or co-trustee, until the appointment of a successor to
said separate trustee or co-trustee is necessary as provided in this Indenture.
(d) Any notice, request or other writing, by or on behalf of any
Bondholder, delivered to the Indenture Trustee shall be deemed to have been
delivered to all separate trustees and co-trustees.
(e) Although co-trustees may be jointly liable, no co-trustee or
separate trustee shall be severally liable by reason of any act or omission of
the Indenture Trustee or any other such trustee hereunder.
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ARTICLE VI
REPORTS TO BONDHOLDERS
Section 6.01. Reports to Bondholders and Others.
(a) Based solely on information provided to the Indenture Trustee by
the Master Servicer and the Special Servicer pursuant to the Servicing
Agreement, the Indenture Trustee shall prepare, or cause to be prepared, and
mail (by first class mail) or make available in electronic format on each
Payment Date, or as soon thereafter as is practicable, to the Company, each
Rating Agency and each Bondholder a statement in respect of the payments made on
such Payment Date setting forth to the extent applicable to each Class the
information set forth in Exhibit B hereto (the "Trustee Report"). The Indenture
Trustee shall promptly make each Trustee Report and Mortgage Loan information as
presented in a standard CSSA loan setup file or CSSA loan periodic update file
available via the Indenture Trustee's Automatic Statements Accessed by Phone
("ASAP") System and Internet website with the use of a password provided by the
Indenture Trustee to such person upon receipt by the Indenture Trustee from such
person of a certification in the form of Exhibit E-1 or Exhibit-2 attached
hereto. The Indenture Trustee's ASAP System can be accessed by calling (312)
904-2200 and following the voice prompts to request "statement number 355" and
its Internet website will be located at "▇▇▇.▇▇▇▇▇▇.▇▇▇" (the "Indenture
Trustee's Website") or at such other address as the Indenture Trustee shall
notify the parties hereto from time to time.
In connection with providing access to the Indenture Trustee's Website,
the Indenture Trustee may require registration and the acceptance of a
disclaimer. The Indenture Trustee shall not be liable for and shall be
indemnified by the Trust Estate for all costs and expenses incurred by it in
connection with any claim brought against it in connection with the
dissemination of information in accordance with this Agreement.
The Indenture Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Trustee Report and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(b) Within a reasonable period of time after the end of each calendar
year (but in no event more than 60 days following the end of such calendar
year), the Indenture Trustee shall prepare, or cause to be prepared, and mail to
each Person who at any time during the calendar year was a Bondholder (i) a
statement containing the information required to be contained in the regular
monthly Trustee's Report aggregated for such calendar year or portion thereof
during which such person was a Bondholder and (ii) such other customary
information as the Indenture Trustee deems necessary or desirable for
Bondholders to prepare their federal, state and local income tax returns
including, without limitation (and to the extent provided to it by the Issuer
which shall so cause such information to be provided), the amount of original
issue discount accrued on the Bonds, if applicable. The obligations of the
Indenture Trustee in clause (ii) of the immediately preceding sentence shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Indenture Trustee pursuant to any
requirements of the Code. As soon as practicable following the request of any
Bondholder in writing, the Indenture Trustee shall furnish to such Bondholder
such information regarding the Mortgage Loans as such holder may reasonably
request.
Section 6.02. Certain Communications with the Rating Agencies.
The Indenture Trustee shall send, in the case of all material items,
and shall endeavor to send, in the case of all other items, a copy of each
supplement, notice, certificate, request, demand, financial statement
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and amortization schedule sent by it or received by it pursuant to or in
connection with the Indenture or the Trust Estate or any part thereof, other
than statements of the Indenture Trustee's fees and expenses sent by it to the
Issuer and any other communications of a similar and solely administrative
nature in the Indenture Trustee's sole opinion, to the Rating Agencies.
Section 6.03. Access to Certain Information.
(a) The Indenture Trustee shall afford to the Company, the
Manager, the Owner Trustee the Master Servicer, the Special Servicer and any
Holder or Holders of Bonds representing a majority of the Controlling Class (to
the extent any such Holder is a different Person than the Special Servicer), and
to any banking or insurance regulatory authority that may exercise authority
over any Bondholder, access to any documentation regarding the Mortgage Loans
within its control that may be required to be provided by this Indenture or by
applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Indenture Trustee designated by it.
(b) The Indenture Trustee shall maintain at its office
primarily responsible for administration of the Trust Estate and shall deliver
to the Company, the Rating Agencies and, subject to the succeeding paragraph,
any Bondholder or Person identified to the Indenture Trustee as a prospective
transferee of a Bond or an interest therein (at the reasonable request and,
except for the Rating Agencies, expense of the requesting party), copies of the
following items (to the extent that such items have been delivered to the
Indenture Trustee or the Indenture Trustee can cause such items to be delivered
to it without unreasonable burden or expense): (i) the Prospectus, the
Memorandum or disclosure document relating to the Bonds of the related Class, in
the form most recently provided to the Indenture Trustee by the Company or by
any Person designated by the Company; (ii) this Indenture, the Owner Trust
Agreement, the Servicing Agreement, the Management Agreement, the Loan Sale
Agreements and any amendments hereto or thereto; (iii) all reports prepared by,
and all reports delivered to, the Indenture Trustee, the Master Servicer or the
Special Servicer since the Closing Date; (iv) all Officer's Certificates
delivered by the Master Servicer and the Special Servicer since the Closing Date
pursuant to Section 3.13 of the Servicing Agreement and all Officer's
Certificates delivered by the Owner Trust since the Closing Date pursuant to
Section 9.07 of this Indenture; (v) all reports, statements, certifications,
notices or other documents caused to be delivered by the Master Servicer and the
Special Servicer since the Closing Date (vi) each of the Mortgage Loan Files,
including any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into or consented to by the Master Servicer or the Special
Servicer and delivered to the Indenture Trustee; and (vii) any and all Officer's
Certificates and other evidence to support the Master Servicer or the Special
Servicer's, as the case may be, determination that any Advance was or, if made,
would be a Nonrecoverable Advance. The Indenture Trustee shall make available
copies of any and all of the foregoing items upon request of any party set forth
in the previous sentence. However, the Indenture Trustee shall be permitted to
require of such party the payment of a sum sufficient to cover the reasonable
costs and expenses of providing such copies as are requested by such party.
The Indenture Trustee will make available, upon reasonable
advance notice and at the expense of the requesting party, copies of the above
items to any Bondholder and to prospective purchasers of Bonds; provided, that,
as a condition to making such items available, the Indenture Trustee shall
require (a) in the case of Bondholders, a confirmation executed by the
requesting Person substantially in the form of Exhibit E-1 hereto generally to
the effect that such Person is a Bondholder, is requesting the information
solely for use in evaluating such Person's investment in the related Bonds and
will otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person and such
Person's prospective transferor substantially in the form of Exhibit E-2 hereto
generally to the effect that such Person is a prospective purchaser of Bonds, is
requesting the information
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solely for use in evaluating a possible investment in such Bonds and will
otherwise keep such information confidential.
(c) The Indenture Trustee shall not be liable for any
dissemination of, and shall be indemnified by the Trust Estate for, all costs
and expenses incurred by it in connection with any claim brought against it in
connection with information made in accordance with Section 6.03(a) or (b).
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ARTICLE VII
REDEMPTION
Section 7.01. Redemption of the Bonds.
The Bonds shall not, either individually or collectively, be subject to
mandatory or optional redemption by the Issuer or any other Person after the
issuance thereof.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES; AMENDMENTS
Section 8.01. Supplemental Indentures or Amendments Without Consent of
Bondholders.
Without the consent of the Bondholders, the Issuer and the Indenture
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, or one or more amendments hereto or to the
Bonds, the Servicing Agreement or the Loan Sale Agreements, for any of the
following
purposes:
(1) to convey, transfer, assign, mortgage or pledge any
property to the Indenture Trustee so long as the interests of the
Bondholders would not be adversely affected in any material respect;
(2) to correct any manifestly incorrect description, or
amplify the description, of any property subject to the lien of this
Indenture;
(3) to modify the Indenture, the Servicing Agreement or the
Loan Sale Agreements as required by, or made necessary by any change
in, applicable law, so long as the interests of the Bondholders would
not be adversely affected in any material respect;
(4) to add to the covenants of the Issuer or any other Person
for the benefit of the Bondholders or to surrender any right or power
herein or therein conferred upon the Issuer;
(5) to add any additional events of default hereunder or under
the Servicing Agreement, provided such action shall not adversely
affect the interests of the Bondholders in any material respect;
(6) to evidence and provide for the acceptance of appointment
by a successor Indenture Trustee, Master Servicer or Special Servicer;
or
(7) to correct any typographical error or cure any ambiguity,
or to cure, correct or supplement any defective or inconsistent
provision herein or in the Bonds, the Servicing Agreement or the Loan
Sale Agreements, provided such action shall not adversely affect the
interests of the Bondholders in any material respect.
No such supplemental indenture or amendment shall be effective unless
(i) the Issuer obtains a Tax Opinion and obtains an Opinion of Counsel to the
effect that such supplemental indenture or amendment would not cause any of the
Class A, Class B, Class C, Class D, Class E or Class F Bonds to be characterized
other than as indebtedness for federal income tax purposes or cause any Class of
Bonds to be deemed to have been exchanged for a new debt instrument pursuant to
Treasury Regulation ss.1.001-3, and furnishes each such Opinion of Counsel to
the Indenture Trustee in connection therewith, (ii) the party requesting such
supplemental indenture or amendment furnishes to the Indenture Trustee and the
Owner Trustee an opinion of Independent counsel that, where required above, such
action will not adversely affect the interests of Bondholders, and (iii) with
respect to items (1), (4), (5) and (6) above, written confirmation from each
Rating Agency to the effect that such amendment will not cause such Rating
Agency to qualify, downgrade or withdraw its then current rating of any Class of
Bonds.
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Section 8.02. Supplemental Indentures With Consent of Bondholders.
With the consent of the Bondholders of not less than 66 2/3% in
aggregate Bond Principal Balance of the Outstanding Bonds, the Issuer and the
Indenture Trustee may enter into one or more indentures supplemental hereto, or
one or more amendments hereto or to the Bonds, the Servicing Agreement or the
Loan Sale Agreements, for the purpose of adding any provisions hereto or
thereto, changing in any manner or eliminating any of the provisions hereof or
thereof or modifying in any manner the rights of the Bondholders hereunder or
thereunder; provided that no such supplemental indenture or amendment shall be
effective unless the Issuer obtains a Tax Opinion and obtains an Opinion of
Counsel to the effect that such supplemental indenture or amendment would not
cause any any of the Class A, Class B, Class C, Class D, Class E or Class F
Bonds to be characterized other than as indebtedness for federal income tax
purposes or cause any Class of Bonds to be deemed to have been exchanged for a
new debt instrument pursuant to Treasury Regulation 1.001-3 and, furnishes each
such Opinion of Counsel to the Indenture Trustee in connection therewith; and
provided, further, that no such supplemental indenture or amendment shall,
without the consent of the Bondholders of 100% in aggregate Bond Principal
Balance of the Outstanding Bonds affected thereby,
(1) change the Stated Maturity or the Payment Date of any
principal, interest or other amount on any Bond, or reduce the Bond
Principal Balance thereof or the Bond Interest Rate thereon, or
authorize the Indenture Trustee to agree to delay the timing of, or
reduce the payments to be made on or in respect of, the Mortgage Loans
except as provided herein or in the Servicing Agreement or the Loan
Sale Agreements, or change the coin or currency in which the principal
of any Bond or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof;
(2) reduce the percentage of the then aggregate Bond Principal
Balance of the Outstanding Bonds, the consent of whose Bondholders is
required for any such supplemental indenture or amendment, or the
consent of whose Bondholders is required for any waiver of defaults
hereunder and their consequences provided for in this Indenture, or for
any other reason under this Indenture (including for actions taken by
the Indenture Trustee pursuant to Section 5.01(a) hereof);
(3) change any obligation of the Issuer or the Owner Trustee
to maintain an office or agency in the places and for the purposes
specified in Section 9.01;
(4) except as otherwise expressly provided in this Indenture,
deprive any Bondholder of the benefit of a first priority security
interest in the Trust Estate as provided in this Indenture;
(5) modify Section 2.10; or
(6) release from the lien of the Indenture (except as
specifically permitted hereby on the date of execution hereof) all or
any part of the Trust Estate.
It shall not be necessary for the consent of the Bondholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
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Section 8.03. Delivery of Supplements and Amendments.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture or amendment pursuant to the provisions hereof, the
Indenture Trustee, at the expense of the Issuer payable out of the Trust Estate
pursuant to Section 5.04, shall furnish a notice setting forth in general terms
the substance of such supplemental indenture or amendment to the Rating Agencies
and to each Bondholder at the address for such Bondholder set forth in the Bond
Register.
Section 8.04. Execution of Supplemental Indentures, etc.
In executing, or accepting the additional trusts created by, any
supplemental indenture or amendment permitted by this Article or in accepting
the modifications thereby of the trusts created by this Indenture or in giving
any consent to any modification of any Mortgage Loan under Section 5.01(a)
hereunder, the Indenture Trustee shall be entitled to receive, at the Issuer's
expense payable out of the Trust Estate pursuant to Section 5.04, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture, amendment or modification is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture or amendment or
consent to any such modification which affects the Indenture Trustee's own
rights, duties or immunities under this Indenture or otherwise.
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ARTICLE IX
COVENANTS; WARRANTIES
Section 9.01. Maintenance of Office or Agency.
The Issuer shall maintain or cause to be maintained an office or agency
in the continental United States where notices and demands to or upon the Issuer
in respect of the Bonds and this Indenture may be served. The Owner Trustee on
behalf of the Issuer shall give prompt written notice to the Indenture Trustee
and the Bondholders of the location, and any change in the location, of such
office or agency.
Section 9.02. Existence.
Subject to Section 9.08, the Issuer will keep in full effect its
existence, rights and franchises under the laws of its jurisdiction of
organization, and the existence, rights and franchises (if any) of the Issuer
under the laws of its jurisdiction of organization.
Section 9.03. Payment of Taxes and Other Claims.
The Issuer shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon the Issuer or upon the income, profits or
property of the Issuer, or shown to be due on the tax returns filed by the Owner
Trustee on behalf of the Issuer, except any such taxes, assessments,
governmental charges or claims which the Owner Trustee on behalf of the Issuer
is in good faith contesting in appropriate proceedings and with respect to which
reserves are established if required in accordance with GAAP, provided, that
such failure to pay or discharge will not cause a forfeiture of, or a lien to
encumber, any property included in the Trust Estate. The Owner Trustee, in its
individual capacity, shall not be liable for any such taxes, assessments,
governmental charges or claims. The Indenture Trustee is authorized to pay out
of the Bond Account, prior to making payments on the Bonds, any such taxes,
assessments, governmental charges or claims which, as determined by the Master
Servicer, if not paid, would cause a forfeiture of, or a lien to encumber, any
property included in the Trust Estate.
Section 9.04. Validity of the Bonds; Title to the Trust Estate;
Lien.
(a) The Issuer represents and warrants that the Issuer is duly
authorized under applicable law and the Owner Trust Agreement to create and
issue the Bonds, to execute and deliver this Indenture, the other documents
referred to herein to which it is a party and all instruments included in the
Trust Estate which it has executed and delivered, and that all corporate action
and governmental consents, authorizations and approvals necessary or required
therefor have been duly and effectively taken or obtained. The Bonds, when
issued, will be, and this Indenture and such other documents are, valid and
legally binding obligations of the Issuer enforceable in accordance with their
terms.
(b) The Issuer represents and warrants that, immediately prior to its
Grant of the Trust Estate provided for herein, it had good title to, and was the
sole owner of, each Mortgage Loan, free and clear of any pledge, lien,
encumbrance or security interest.
(c) The Issuer represents and warrants that, upon the issuance of the
Bonds, the Indenture Trustee has a valid and enforceable first priority security
interest in the Trust Estate, subject only to exceptions permitted hereby.
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(d) The Issuer represents and warrants that the Indenture is not
required to be qualified under the 1939 Act and that the Issuer is not required
to be registered as an "investment company" under the 1940 Act.
Section 9.05 Protection of Trust Estate.
The Issuer and, to the extent directed by the Issuer or the Bondholders
representing greater than 50% of the aggregate Bond Principal Balance of all the
Bonds, the Indenture Trustee will from time to time execute and deliver all such
amendments and supplements hereto (subject to Sections 8.01 and 8.02) and all
such financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(a) Grant more effectively all or any portion of the Trust Estate
securing the Bonds;
(b) maintain or preserve the lien (and the priority thereof) of this
Indenture or carry out more effectively the purposes hereof;
(c) perfect, publish notice of, or protect the validity of any Grant
made or to be made by this Indenture;
(d) enforce any of the Mortgage Loans included in the Trust Estate; or
(e) preserve and defend title to the Trust Estate securing the Bonds
and the rights of the Indenture Trustee, and of the Bondholders, in the Trust
Estate against the claims of all Persons and parties.
The Issuer hereby designates the Indenture Trustee, its agent and
attorney-in-fact, to execute any financing statement, continuation statement or
other instrument required pursuant to this Section 9.05; provided that, subject
to and consistent with Section 5.01, the Indenture Trustee will not be obligated
to prepare or file any such statements or instruments.
Section 9.06. Negative Covenants.
The Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the assets
of the Trust Estate, except as expressly permitted by this Indenture;
(b) dissolve or liquidate in whole or in part, except as provided in
Section 9.08.
(c) engage, directly or indirectly, in any business other than that
arising out of the issue of the Bonds, and the actions contemplated or required
to be performed under this Indenture, the Owner Trust Agreement or the Servicing
Agreement;
(d) except with respect to Advances, incur, create or assume any
indebtedness other than the Bonds;
(e) make or permit to remain outstanding, any loan or advance to, or
own or acquire any stock or securities of, any Person other than the Mortgage
Loans and any other instruments constituting part of the
Trust Estate;
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(f) voluntarily file a petition for bankruptcy, reorganization,
assignment for the benefit of creditors or similar proceeding;
(g) permit transfers of the Owner Trust Certificates to any Person
except in accordance with the Owner Trust Agreement; or
(h) act or fail to act in a manner that could cause it to lose its
status as a QRS.
Section 9.07. Statement as to Compliance.
The Issuer shall deliver to the Indenture Trustee and to each Rating
Agency, within 120 days after the end of each calendar year, an Officer's
Certificate of the Owner Trustee stating that, in the course of the performance
by the officer executing such Officer's Certificate of such officer's present
duties as an officer of the Owner Trustee, such officer would normally obtain
knowledge or have made due inquiry as to the existence of any condition or event
which would constitute an Event of Default after notice or lapse of time or both
and that to the best of the officer's knowledge, (a) the Issuer has fulfilled
all of its obligations under this Indenture in all material respects throughout
such year, or, if there has been a default in the fulfillment of any such
obligation in any material respect, specifying each such default known to such
officer and the nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would become, an
Event of Default, or, if such an event has occurred and is continuing,
specifying each such event known to such officer and the nature and status
thereof.
Section 9.08. Issuer may Consolidate, Etc., only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person or convey or transfer the Trust Estate to any Person without the consent
of Bondholders with an aggregate Bond Principal Balance of not less than 66 2/3%
of the aggregate Bond Principal Balance of the Outstanding Bonds and unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger or that acquires by conveyance
or transfer the Trust Estate (the "Successor Person"), shall be a
Person organized and existing under the laws of the United States of
America or any State, shall be, or shall in its entirety be treated as
part of, a REIT or a QRS and shall have expressly assumed, executed and
delivered to the Indenture Trustee, the obligation (to the same extent
as the Issuer was so obligated) to make payments of principal, interest
and other amounts on all of the Bonds, and the obligation to perform
every 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
default or Event of Default shall have occurred and be continuing;
(iii) the Issuer shall have caused the Indenture Trustee to
have received written confirmation from each Rating Agency to the
effect that the consummation of such transaction will not cause such
Rating Agency to qualify, downgrade or withdraw its then-current rating
of any Class of Bonds;
(iv) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance or transfer comply with and
satisfy all conditions precedent relating to the transactions set forth
in this Section 9.08;
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(v) the Successor Person shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating
that, with respect to a Successor Person that is a corporation,
partnership or trust, such Successor Person shall be duly organized,
validly existing and in good standing in the jurisdiction in which such
Successor Person is organized; that the Successor Person has sufficient
power and authority to assume the obligations set forth in clause (i)
above and to execute and deliver an indenture supplemental hereto for
the purpose of assuming such obligation; that the Successor Person has
duly authorized the execution, delivery and performance of any
indenture supplemental hereto for the purpose of assuming such
obligations; that the Successor Person has duly authorized the
execution, delivery and performance of an indenture supplemental hereto
for the purpose of assuming such obligations and that such supplemental
indenture is a valid, legal and binding obligation of the Successor
Person, enforceable in accordance with its terms, subject only to
bankruptcy, reorganization, insolvency and other laws affecting the
enforcement of creditor's rights generally and to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or law); that no consent, approval, authorization
or order of any state or federal court, agency or other governmental
body is required for the Successor Person to assume the obligations set
forth in clause (i) above except such as have been obtained; that the
obligations set forth in clause (i) above will not breach or constitute
a default or an event which with the passing of time or notification or
both would constitute a default under, the organizational documents of
the Successor Person or any state or federal statute; that there are no
actions, proceedings or investigations pending or threatened against
the Successor Person before any court, administrative agency or other
tribunal that might materially and adversely affect the performance by
the Successor Person of its obligations set forth in clause (i) above;
and that, immediately following the event which causes the Successor
Person to become the Successor Person, (A) the Successor Person has
good and marketable title, free and clear of any lien, security
interest or charge other than the lien and security interest of this
Indenture and any other lien permitted hereby to the assets of the
Trust Estate and (B) the Indenture Trustee continues to have a
perfected first priority security interest in the assets of the Trust
Estate; and
(b) Upon any consolidation or merger, or any conveyance or transfer of
the Trust Estate securing the Bonds, the Successor Person 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 Successor Person had been named
as the Issuer herein. In the event of any such conveyance or transfer of the
Trust Estate permitted by this Section 9.08, the Person named as the "Issuer" in
the first paragraph of this Indenture, or any successor that shall theretofore
have become such in the manner prescribed in this Article and that has
thereafter effected such a conveyance or transfer, may be dissolved, wound-up
and liquidated at any time thereafter, and such Person thereafter shall be
released from its liabilities as obligor and maker on all of the then
Outstanding Bonds and from its obligations under this Indenture.
(c) Without limiting the restrictions imposed by clause (g) of Section
9.06, nothing in this Section shall prohibit the sale or transfer of the Owner
Trust Certificates.
Section 9.09 Purchase of Bonds.
The Issuer may reacquire Bonds, in its discretion, by open market
purchases in privately negotiated transactions or otherwise.
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Section 9.10. Performance of Issuer's Duties by the Owner Trustee
and Manager.
(a) The duties of the Issuer will be performed on behalf of the Issuer
by the Owner Trustee pursuant to the Owner Trust Agreement or the Manager
pursuant to the Management Agreement. The Owner Trustee on behalf of itself and
the Issuer agrees not to permit any modification of the Owner Trust Agreement or
the Management Agreement without the consent of the Bondholders representing
greater than 50% of the aggregate Bond Principal Balance of the Outstanding
Bonds.
(b) Any successor to the Owner Trustee appointed pursuant to the terms
of the Owner Trust Agreement shall be the successor Owner Trustee under this
Indenture without the execution or filing of any paper, instrument or further
act to be done on the part of the parties hereto.
Section 9.11. Payment of Rating Agency Fees.
The Issuer agrees to pay solely out of the Trust Estate the ongoing
fees of the Rating Agencies in connection with the Bonds (which will be payable
in December of each year, commencing in 1998), and the Indenture Trustee is
authorized and instructed to effect such payments out of the Bond Account prior
to making payments on the Bonds.
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ARTICLE X
MISCELLANEOUS
Section 10.01. Execution Counterparts.
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 10.02. Compliance Certificates and Opinions, etc.
Upon any application or request by the Owner Trustee on behalf of the
Issuer to the Indenture Trustee to take any action under any provision of this
Indenture, the Owner Trustee on behalf of the Issuer shall furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, and (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) 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;
(ii) 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;
(iii) 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; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
Section 10.03. 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 Owner
Trustee 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
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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 Owner Trustee, stating that the information
with respect to such factual matters is in the possession of the Owner Trustee,
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 any Person
shall deliver any document as a condition of the granting of such application,
or as evidence of such Person'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 such Person 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 V.
Section 10.04. 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 Owner Trustee. 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 5.01)
conclusive in favor of the Indenture Trustee and the Owner Trustee, if made in
the manner provided in this Section. With respect to authorization to be given
or taken by Bondholders, the Indenture Trustee shall be authorized to follow the
written directions or the vote of Bondholders of Bonds representing more than
50% of the aggregate Bond Principal Balance of the affected Classes of
Outstanding Bonds, unless any greater or lesser percentage is required by the
terms hereunder.
(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 Bond Principal Balance and serial numbers of Bonds held by any
Person, and the date of holding the same, shall be proved by the Bond Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, declaration, waiver or other act of any Bondholder shall bind every
future Bondholder of the same Bond and the Bondholder of every Bond issued upon
the transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, suffered or omitted 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.
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Section 10.05. Computation of Percentage of Bondholders.
Whenever this Indenture states that any action may be taken by a
specified percentage of the Bondholders, such statement shall mean that such
action may be taken by the Bondholders of such specified percentage of the
aggregate Bond Principal Balance of the Outstanding Bonds.
Section 10.06. Notice to the Indenture Trustee, the Issuer and
Certain Other Persons.
Any communication provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if delivered by courier or mailed by first class mail, postage
prepaid, or if transmitted by telecopier and confirmed in a writing delivered or
mailed as aforesaid, to: (i) in the case of the Issuer (or the Owner Trustee on
behalf of the Issuer), c/o Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, telephone number: (302) 651-
1284 (with copies to the Company, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, facsimile number: (714)
▇▇▇-▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇; (ii) in the case of the Indenture
Trustee, LaSalle National Bank, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Asset Backed Securities Trust Services
Group-Impac CMB Trust 1998-C1, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, and (iii) in
the case of each Rating Agency, the address of such Rating Agency specified in
the Servicing Agreement, or, as to each such Person, such other address or
facsimile number as may hereafter be furnished by such Person to the parties
hereto in writing.
Section 10.07. Notices to Bondholders; Notification Requirements and
Waiver.
Where this Indenture provides for notice to Bondholders of any event,
such notice shall be sufficiently given if in writing and delivered by courier
or mailed by first-class mail, postage prepaid; to each Bondholder affected by
such event, at its 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 delivered or mailed in the
manner herein provided shall conclusively be presumed to have been duly given.
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 courier and 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 any such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute
a default or Event of Default.
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Section 10.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Owner Trustee on
behalf of the Issuer shall bind its successors and permitted assigns, whether so
expressed or not.
Section 10.09. Separability Clause.
In case any provision of this Indenture or of the Bonds shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall, to the extent permitted by law, not in
any way be affected or impaired thereby.
Section 10.10. Governing Law.
(A) THIS INDENTURE AND THE BONDS SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) Any action or proceeding against any of the parties hereto relating
in any way to this Indenture or any Bond or the Trust Estate may be brought and
enforced in the courts of the State of New York sitting in the borough of
Manhattan or of the United States District Court for the Southern District of
New York and the Owner Trustee on behalf of the Issuer irrevocably submits to
the jurisdiction of each such court in respect of any such action or proceeding.
The Owner Trustee on behalf of the Issuer hereby waives, to the fullest extent
permitted by law, any right to remove any such action or proceeding by reason of
improper venue or inconvenient forum. As long as any of the Bonds remain
Outstanding, service of process upon the Owner Trustee on behalf of the Issuer
shall, to the fullest extent permitted by law, be deemed in every respect
effective service upon the Issuer in any such legal action or proceeding.
Section 10.11. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 10.12. Benefits of Indenture.
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, the Bondholders and any other party secured hereunder or named as a
beneficiary of any provision hereof, any benefit or any legal or equitable
right, remedy or claim
under this Indenture.
Section 10.13. Recording of Indenture.
If this Indenture is subject to recording in any appropriate public
recording offices, such recording is to be effected by and at the expense of the
Issuer and accompanied by an Opinion of Counsel (which may be rendered by
counsel to the Indenture Trustee or any other counsel reasonably acceptable to
the Indenture Trustee and which shall be an expense of the Issuer) 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.
-69-
Section 10.14. Trust Obligation.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer on the Bonds or under this Indenture (other than with
respect to Permitted Investments as to which such Person is the issuer) or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Owner Trustee, the Indenture Trustee, the Master Servicer, the
Special Servicer, the Company or the Manager in its individual capacity, (ii)
any owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee, agent or Control Person of the
Owner Trustee, the Indenture Trustee, the Master Servicer, the Special Servicer,
the Company or the Manager in its individual capacity, any holder of a
beneficial interest in the Issuer or of any successor or assignee of the Owner
Trustee, the Indenture Trustee, the Master Servicer, the Special Servicer, the
Company or the Manager in its individual capacity, except as any such Person may
have expressly agreed (it being understood that none of the Owner Trustee, the
Indenture Trustee, the Master Servicer, the Special Servicer, the Company or the
Manager has any such obligations in its individual capacity).
Section 10.15. Inspection.
The Owner Trustee agrees that, on reasonable prior notice, it will
permit any representative of the Indenture Trustee, during the Owner Trustee's
normal business hours, to examine all the books of account, records, reports,
and other papers of the Owner Trustee relating to the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants, and to discuss the Owner Trustee's affairs, finances and
accounts relating to the Issuer with the Owner Trustee's officers, employees,
and independent certified public accountants, all at such reasonable times and
as often as may be reasonably requested. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) or the Indenture Trustee may
reasonably determine that such disclosure is consistent with its obligations
hereunder.
Section 10.16. Method of Payment.
Except as otherwise provided in Section 2.10(b), all amounts payable or
to be remitted pursuant to this Indenture shall be paid or remitted or caused to
be paid or remitted in immediately available funds by wire transfer to an
account specified in writing by the recipient thereof and if not so specified by
the end of the preceding calendar month, then by check.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
IMPAC CMB TRUST 1998-C1
by Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
LASALLE NATIONAL BANK
as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __th day of August, 1998, before me, the undersigned officer,
personally appeared __________________, and acknowledged himself to me to be the
Vice President of Wilmington Trust Company, acting in its capacity as Owner
Trustee, and that as such officer, being duly authorized to do so pursuant to
such entity's by-laws or a resolution of its board of directors, executed and
acknowledged the foregoing instrument for the purposes therein contained, by
signing the name of such entity by himself or herself as such officer as his or
her free and voluntary act and deed and the free and voluntary act and deed of
said entity.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
----------------------------------
Notary Public
NOTARIAL SEAL
STATE OF NEW YORK )
): ss.:
COUNTY OF NEW YORK )
On this __th day of August, 1998, before me, the undersigned officer,
personally appeared ___________________, and acknowledged himself to me to be
the Vice President of LaSalle National Bank, and that as such officer, being
duly authorized to do so pursuant to such entity's by-laws or a resolution of
its board of directors, executed and acknowledged the foregoing instrument for
the purposes therein contained, by signing the name of such entity by himself or
herself as such officer as his or her free and voluntary act and deed and the
free and voluntary act and deed of said entity.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------
Notary Public
NOTARIAL SEAL
EXHIBIT A
FORM OF CLASS _____ BOND
IMPAC CMB TRUST 1998-C1
COLLATERALIZED MORTGAGE BONDS
Bond Interest Rate: _____% Bond Principal Balance of the Class A-1A
Bonds as of the Closing Date:
$_______________
Date of Indenture: As of August 1, 1998 Initial Bond Principal Balance of this
Class A-1A Bond as of the Closing Date:
$_______________
Cut-off Date: August 1, 1998
Closing Date: August 26, 1998 Initial Aggregate Bond Principal Balance
as of the Closing Date:
$_______________
First Payment Date: September 21, 1998
Issuer: Impac CMB Trust 1998-C1
Indenture Trustee: LaSalle National Bank Registered Holder:
Owner Trustee: Wilmington Trust Company
Bond No. __
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 2.05 OF THE INDENTURE REFERRED TO HEREIN.
BECAUSE THE TRUST ESTATE SECURING THIS BOND AND OTHER BONDS OF THE SAME SERIES
HAS NOT BEEN REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), THIS BOND IS SUBJECT TO
FURTHER TRANSFER RESTRICTIONS ASSOCIATED THEREWITH.
THIS BOND REPRESENTS A NON-RECOURSE OBLIGATION OF THE ISSUER AND WILL BE PAID
SOLELY FROM THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE
COLLATERAL THEREFOR IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR BY ANY OTHER PERSON.
PAYMENTS IN REDUCTION OF THE BOND PRINCIPAL BALANCE OF THIS BOND MAY BE MADE
MONTHLY AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING BOND PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ABOVE.
-3-
This certifies that the Registered Holder specified on the first page
hereof is the registered owner of this Bond which is one of a series of
collateralized mortgage bonds (collectively, the "Bonds") issued by the Issuer
referred to above in multiple classes (each, a "Class") pursuant to the
Indenture referred to above (the "Indenture"), between the Issuer and the
Indenture Trustee referred to above, on behalf of the holders of the Bonds (the
"Bondholders"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned in the Indenture. This Bond is issued
under and is subject to the terms, provisions and conditions of the Indenture,
to which Indenture the Holder of this Bond by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Issuer, for value received, hereby promises to pay to the
Registered Holder hereof, or registered assigns, the principal sum set forth on
the first page hereof no later than the Stated Maturity.
Pursuant to the terms of the Indenture, payments will be made on the
Class of Bonds to which this Bond belongs, pro rata among the Bonds of such
class based on their respective Bond Principal Balance, on the Payment Date,
commencing on the first Payment Date specified above, to the Person in whose
name this Bond is registered at the close of business on the related Record
Date. All payments made under the Indenture on this Bond will be made by the
Indenture Trustee by wire transfer of immediately available funds to the account
of the Person entitled thereto at a bank or other entity having appropriate
facilities therefor, if such Bondholder shall have provided the Indenture
Trustee with wiring instructions prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
payments), or otherwise by check mailed to the address of such Bondholder as it
appears in the Bond Register. Notwithstanding the foregoing, the final payment
on this Bond will be made in like manner, but only upon presentation and
surrender of this Bond at the offices of the Indenture Trustee or such other
location specified in the notice to the Holder hereof of such final payment.
Notwithstanding anything herein to the contrary, no payments will be made with
respect to a Bond that has previously been surrendered as contemplated by the
preceding sentence or, with limited exception, that should have been surrendered
as contemplated by the preceding sentence.
The Bonds are limited in right of payment to certain distributions on
the Mortgage Loans, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Bond
Principal Balance hereof is binding on such Holder and all future Holders of
this Bond and any Bond issued upon the transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such payment is made upon this Bond.
-4-
The Class of Bonds to which this Bond relates are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same aggregate Bond Principal Balance,
as requested by the Holder surrendering the same.
No transfer of this Bond or any interest herein shall be made to any
employee benefit plan or other retirement arrangement, including individual
retirement accounts and annuities, ▇▇▇▇▇ plans and bank collective investment
funds, insurance company general separate accounts and other entities in which
such plans, accounts or arrangements are invested, that is subject to ERISA or
the Code (each, a "Plan"), or to any Person who is directly or indirectly
purchasing such Bond or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if any such transfer will result in any
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
Accordingly, each purchaser of this Bond will be deemed to represent and warrant
that either (i) no part of the assets to be used by it to acquire and hold this
Bond constitutes assets of any Plan or (ii) one or more statutory or
administrative exemptions applies, such that its acquisition and holding of this
Bond does not and will not constitute or otherwise result in a non-exempt
prohibited transaction in violation of Section 406 of ERISA or Section 4975 of
the Code.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Bond is registrable in the Bond Register
upon surrender of this Bond for registration of transfer at the offices of the
Bond Registrar, duly endorsed by, or accompanied by a written instrument of
transfer in the form satisfactory to the Bond Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Bonds of the same Class in authorized denominations evidencing the same
aggregate Bond Principal Balance will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
The Company, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Owner Trustee, the Indenture Trustee, the Bond Registrar or any such agent shall
be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain
continuing rights specified in the Indenture) (a)(1) upon the delivery to the
Indenture Trustee for cancellation of all of the Bonds other than Bonds which
have been mutilated, lost or stolen and have been replaced or paid and Bonds for
which money has been deposited in trust for the full payment thereof (and
thereafter repaid to the Issuer and discharged from such trust) as provided in
the Indenture or (2) at such time as all Bonds not previously canceled by the
Indenture Trustee have become, or, on the next
-5-
Payment Date, will become, due and payable or called for redemption and the
Issuer shall have deposited with the Indenture Trustee an amount sufficient to
repay all of the Bonds and (b) the Issuer shall have paid all other amounts
payable under the Indenture.
Without the consent of the Bondholders, the Issuer and the Indenture
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Indenture, or one or more amendments to the
Indenture or to the Bonds, the Servicing Agreement or the Loan Sale Agreements,
for any of the following purposes: (1) to convey, transfer, assign, mortgage or
pledge any property to the Indenture Trustee so long as the interests of the
Bondholders would not be adversely affected in any material respect; (2) to
correct any manifestly incorrect description, or amplify the description, of any
property subject to the lien of the Indenture; (3) to modify the Indenture, the
Servicing Agreement or the Loan Sale Agreements as required by, or made
necessary by any change in, applicable law, so long as the interests of the
Bondholders would not be adversely affected in any material respect; (4) to add
to the covenants of the Issuer or any other Person for the benefit of the
Bondholders or to surrender any right or power herein or therein conferred upon
the Issuer; (5) to add any additional events of default hereunder or under the
Servicing Agreement, provided such action shall not adversely affect the
interests of the Bondholders in any material respect; (6) to evidence and
provide for the acceptance of appointment by a successor Indenture Trustee, the
Fiscal Agent, Master Servicer or Special Servicer; or (7) to correct any
typographical error or cure any ambiguity, or to cure, correct or supplement any
defective or inconsistent provision herein or in the Bonds, the Servicing
Agreement or the Loan Sale Agreements, provided such action shall not adversely
affect the interests of the Bondholders in any material respect.
No such supplemental indenture or amendment shall be effective unless
(i) the Issuer obtains a Tax Opinion and obtains an Opinion of Counsel to the
effect that such supplemental indenture or amendment would not cause any of the
Class A, Class B, Class C, Class D, Class E or Class F Bonds to be characterized
other than as indebtedness for federal income tax purposes or cause any Class of
Bonds to be deemed to have been exchanged for a new debt instrument pursuant to
Treasury Regulation 1.001-3, and furnishes each such Opinion of Counsel to the
Indenture Trustee in connection therewith, and (ii) the party requesting such
supplemental indenture or amendment furnishes to the Indenture Trustee and the
Owner Trustee an opinion of Independent counsel that, where required above, such
action will not adversely affect the interests of Bondholders in any material
respect.
With the consent of the Bondholders of not less than 66 2/3% in
aggregate Bond Principal Balance of the Outstanding Bonds, the Issuer and the
Indenture Trustee may enter into one or more indentures supplemental to the
Indenture, or one or more amendments to the Indenture or hereto, the Servicing
Agreement or the Loan Sale Agreements, for the purpose of adding any provisions
hereto or thereto, changing in any manner or eliminating any of the provisions
hereof or thereof or modifying in any manner the rights of the Bondholders
hereunder or thereunder; provided that no such supplemental indenture or
amendment shall be effective unless the Issuer obtains a Tax Opinion and obtains
an Opinion of Counsel to the effect that such supplemental indenture or
amendment would not cause any of the Class A, Class B, Class C, Class D, Class E
or Class F
-6-
Bonds to be characterized other than as indebtedness for federal income tax
purposes or cause any Class of Bonds to be deemed to have been exchanged for a
new debt instrument pursuant to Treasury Regulation 1.001-3 and, furnishes each
such Opinion of Counsel to the Indenture Trustee in connection therewith; and
provided, further, that no such supplemental indenture or amendment shall,
without the consent of the Bondholders of 100% in aggregate Bond Principal
Balance of the Outstanding Bonds affected thereby, (1) change the Stated
Maturity or the Payment Date of any principal, interest or other amount on any
Bond, or reduce the Bond Principal Balance thereof or the Bond Interest Rate
thereon, or authorize the Indenture Trustee to agree to delay the timing of, or
reduce the payments to be made on or in respect of, the Mortgage Loans except as
provided in the Indenture or in the Servicing Agreement or the Loan Sale
Agreements, or change the coin or currency in which the principal of any Bond or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof; (2)
reduce the percentage of the then aggregate Bond Principal Balance of the
Outstanding Bonds, the consent of whose Bondholders is required for any such
supplemental indenture or amendment, or the consent of whose Bondholders is
required for any waiver of defaults under the Indenture and their consequences
provided for in the Indenture, or for any other reason under the Indenture; (3)
change any obligation of the Issuer or the Owner Trustee to maintain an office
or agency in the places and for the purposes specified in Section 9.01 of the
Indenture; (4) except as otherwise expressly provided in the Indenture, deprive
any Bondholder of the benefit of a first priority security interest in the Trust
Estate as provided in the Indenture; (5) modify Section 2.10 of the Indenture;
or (6) release from the lien of the Indenture (except as specifically permitted
thereby on the date of execution thereof) all or any part of the Trust Estate.
It shall not be necessary for the consent of the Bondholders under
Section 8.02 of the Indenture to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
Unless the certificate of authentication hereon has been executed by
the Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
The Registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Estate (to the extent of its rights therein) for
payments hereunder.
This Bond shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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:
IMPAC CMB TRUST 1998-C1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely in its capacity as Owner Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Bonds referred to in the within-
mentioned Indenture.
Dated:
LASALLE NATIONAL BANK
as Bond Registrar
By:
Authorized Officer
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the within Collateralized Mortgage Bond and hereby authorize(s) the registration
of transfer of such Bond to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Collateralized
Mortgage Bond of a like Bond Principal Balance and Class to the above named
assignee and deliver such Collateralized Mortgage Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________________________________________
_______________________________________________________________________ for the
account of ____________________________________________________________________.
Payments made by check (such check to be made payable to ____________)
and all applicable statements and notices should be mailed to _________________
_______________________________________________________________________.
This information is provided by ___________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT B
FORM OF TRUSTEE REPORT
EXHIBIT C-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF CLASS F AND CLASS G BONDS
[Date]
LaSalle National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Impac CMB Trust 1998-C1
Collateralized Mortgage Bonds (the "Bonds")
-------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of Class ______ Bonds having an initial aggregate Bond Principal
Balance as of August __, 1998 (the "Closing Date") of $_____________ (the
"Transferred Bonds"). The Bonds, including the Transferred Bonds, were issued
pursuant to the Indenture, dated as of August 1, 1998 (the "Indenture"), between
Impac CMB Trust 1998-C1 (the "Issuer") and LaSalle National Bank (the "Indenture
Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Indenture. The Transferor hereby
certifies, represents and warrants to you, as Bond Registrar, and for the
benefit of the Issuer, the Indenture Trustee and the Transferee, that:
i. The Transferor is the lawful owner of the Transferred Bonds
with the full right to transfer such Bonds free from any and all claims
and encumbrances whatsoever.
ii. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Bond, any interest in any Bond or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Bond, any interest in any
Bond or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Bond, any
interest in any Bond or any other similar security with any person in
any manner, (d) made any general solicitation by means of general
advertising or in any other manner, or (e) taken any other action,
which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of any Bond under the
Securities Act of 1933, as amended (the "Securities Act"), or would
render the disposition of any Bond a violation of Section 5 of the
Securities Act or any state securities laws, or would require
registration or qualification of any Bond pursuant to the Securities
Act or any state securities laws.
iii. The Transferor and any person acting on behalf of the
Transferor in this matter reasonably believe that the Transferee is a
"qualified institutional buyer" as that term is
-2-
defined in Rule 144A ("Rule 144A") under the Securities Act (a
"Qualified Institutional Buyer") purchasing for its own account or for
the account of a Qualified Institutional Buyer. In determining whether
the Transferee is a Qualified Institutional Buyer, the Transferor and
any person acting on behalf of the Transferor in this matter have
relied upon the following method(s) of establishing the Transferee's
ownership and discretionary investments of securities (check one or
more):
___ (a) The Transferee's most recent publicly available
financial statements, which statements present the
information as of a date within 16 months preceding
the date of sale of the Transferred Bond in the case
of a U.S. purchaser and within 18 months preceding
such date of sale for a foreign purchaser; or
___ (b) The most recent publicly available information
appearing in documents filed by the Transferee with
the Securities and Exchange Commission or another
United States federal, state, or local governmental
agency or self-regulatory organization, or with a
foreign governmental agency or self-regulatory
organization, which information is as of a date
within 16 months preceding the date of sale of the
Transferred Bond in the case of a U.S. purchaser and
within 18 months preceding such date of sale for a
foreign purchaser; or
___ (c) The most recent publicly available information
appearing in a recognized securities manual, which
information is as of a date within 16 months
preceding the date of sale of the Transferred Bond in
the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser;
or
___ (d) A certification by the chief financial officer, a
person fulfilling an equivalent function, or other
executive officer of the Transferee, specifying the
amount of securities owned and invested on a
discretionary basis by the Transferee as of a
specific date on or since the close of the
Transferee's most recent fiscal year, or, in the case
of a Transferee that is a member of a "family of
investment companies", as that term is defined in
Rule 144A, a certification by an executive officer of
the investment adviser specifying the amount of
securities owned by the "family of investment
companies" as of a specific date on or since the
close of the Transferee's most recent fiscal year.
iv. The Transferor and any person acting on behalf of the
Transferor understand that in determining the aggregate amount of
securities owned and invested on a discretionary basis by an entity for
purposes of establishing whether such entity is a Qualified
Institutional Buyer:
-3-
(a) the following instruments and interests shall be
excluded: securities of issuers that are affiliated
with the Transferee; securities that are part of an
unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer; securities
of issuers that are part of the Transferee's "family
of investment companies", if the Transferee is a
registered investment company; bank deposit notes and
certificates of deposit; loan participations;
repurchase agreements; securities owned but subject
to a repurchase agreement; and currency, interest
rate and commodity swaps;
(b) the aggregate value of the securities shall be
the cost of such securities, except where the entity
reports its securities holdings in its financial
statements on the basis of their market value, and no
current information with respect to the cost of those
securities has been published, in which case the
securities may be valued at market;
(c) securities owned by subsidiaries of the entity
that are consolidated with the entity in its
financial statements prepared in accordance with
generally accepted accounting principles may be
included if the investments of such subsidiaries are
managed under the direction of the entity, except
that, unless the entity is a reporting company under
Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, securities owned by such
subsidiaries may not be included if the entity itself
is a majority-owned subsidiary that would be included
in the consolidated financial statements of another
enterprise.
v. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the
Transferor is relying on the exemption from the provisions of Section 5
of the Securities Act provided by Rule 144A.
vi. The Transferor or a person acting on its behalf has
furnished, or caused to be furnished, to the Transferee all information
regarding (a) the Transferred Bonds and payments thereon, (b) the
nature and performance of the Mortgage Loans, (c) the Indenture and the
Trust Estate, and (d) any credit enhancement mechanism associated with
the Transferred Bonds, that the Transferee has requested.
Very truly yours,
(Transferor)
By:
Name:
Title:
EXHIBIT C-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF CLASS F AND CLASS G BONDS
[Date]
LaSalle National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Impac CMB Trust 1998-C1,
Collateralized Mortgage Bonds (the "Bonds")
-------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Bonds having an initial aggregate Bond Principal Balance as of
August __, 1998 (the "Closing Date") of $_____________ (the "Transferred
Bonds"). The Bonds, including the Transferred Bonds, were issued pursuant to the
Indenture, dated as of August 1, 1998 (the "Indenture"), between Impac CMB Trust
1998-C1 (the "Issuer") and LaSalle National Bank (the "Indenture Trustee"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Indenture. The Transferor hereby certifies,
represents and warrants to you, as Bond Registrar, and for the benefit of the
Issuer, the Indenture Trustee and the Transferee, that:
1. The Transferor is the lawful owner of the Transferred Bonds
with the full right to transfer such Bonds free from any and all claims
and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Bond, any interest in any Bond or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Bond, any interest in any
Bond or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Bond, any
interest in any Bond or any other similar security with any person in
any manner, (d) made any general solicitation by means of general
advertising or in any other manner, or (e) taken any other action,
which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of any Bond under the
Securities Act of 1933, as amended (the "Securities Act"), or would
render the disposition of any Bond a violation of Section 5 of the
Securities Act or any state securities laws, or would require
registration or qualification of any Bond pursuant to the Securities
Act or any state securities laws.
-2-
Very truly yours,
(Transferor)
By:
Name:
Title:
EXHIBIT C-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF CLASS F AND CLASS G BONDS
[Date]
LaSalle National Bank
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Re: Impac CMB Trust 1998-C1,
Collateralized Mortgage Bonds (the "Bonds")
-------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ___ Bonds having an initial aggregate Bond Principal Balance as of August
__, 1998 (the "Closing Date") of $______________ (the "Transferred Bonds"). The
Bonds, including the Transferred Bonds, were issued pursuant to the Indenture,
dated as of August 1, 1998 (the "Indenture"), between Impac CMB Trust 1998-C1
(the "Issuer") and LaSalle National Bank (the "Indenture Trustee"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Indenture. The Transferee hereby certifies,
represents and warrants to you, as Bond Registrar, and for the benefit of the
Issuer, the Indenture Trustee and the Transferor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it of the Transferred Bonds is
being made in reliance on Rule 144A. The Transferee is acquiring the Transferred
Bonds for its own account or for the account of a Qualified Institutional Buyer,
and understands that such Transferred Bonds may be resold, pledged or
transferred only (i) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
-4-
2. The Transferee has been furnished with all information regarding
(a) the Transferred Bonds and payments thereon, (b) the nature and performance
of the Mortgage Loans, (c) the Indenture, and (d) any credit enhancement
mechanism associated with the Transferred Bonds, that it has requested.
Very truly yours,
(Transferee)
By:
Name:
Title:
ANNEX 1 TO EXHIBIT C-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Bond Registrar], as Bond Registrar, with respect
to the Commercial Mortgage Bonds being transferred (the "Transferred Bonds") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Bonds (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________1 in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Bond in the case of a U.S. bank, and
not more than 18 months preceding such date of sale for a foreign bank
or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having
_____________________
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
-2-
supervision over any such institutions or is a foreign savings and
loan association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the Bond in the
case of a U.S. savings and loan association, and not more than 18
months preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
-3-
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Bonds are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Bonds
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred Bonds
will constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
Print Name of Transferee
By:
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT C-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Bond Registrar], as Bond Registrar, with respect
to the Commercial Mortgage Bonds being transferred (the "Transferred Bonds") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
-2-
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Bonds only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Bonds will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Transferee or Adviser
By:
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
EXHIBIT C-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF CLASS F AND CLASS G BONDS TO
INSTITUTIONAL ACCREDITED INVESTORS
[Date]
LaSalle National Bank
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Re: Impac CMB Trust 1998-C1
Collateralized Mortgage Bonds (the "Bonds")
-------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ___ Bonds having an initial aggregate Bond Principal Balance as of August
__, 1998 (the "Closing Date") of $______________ (the "Transferred Bonds"). The
Bonds, including the Transferred Bonds, were issued pursuant to the Indenture,
dated as of August 1, 1998 (the "Indenture"), between Impac CMB Trust 1998-C1
(the "Issuer") and LaSalle National Bank (the "Indenture Trustee"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Indenture. The Transferee hereby certifies,
represents and warrants to you, as Bond Registrar, and for the benefit of the
Issuer, the Indenture Trustee and the Transferor, that:
1. The Transferee is acquiring the Transferred Bonds for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Bonds to which the
Transferred Bonds belong has not been and will not be registered under the
Securities Act or registered or qualified under any applicable state securities
laws, (b) none of the Issuer, the Indenture Trustee or the Bond Registrar is
obligated so to register or qualify the Class of Bonds to which the Transferred
Bonds belong, and (c) no Transferred Bond may be resold or transferred unless it
is (i) registered pursuant to the Securities Act and registered or qualified
pursuant any applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration and qualification and the
Bond Registrar has received either: (A) a certificate from the Bondholder
desiring to effect such transfer substantially in the form attached as Exhibit
C-1A to the Indenture; (B) a certificate from such Bondholder substantially in
the form attached as Exhibit C-1B to the Indenture and a certificate from such
Bondholder's prospective transferee substantially in the form attached either as
Exhibit C-2A or as Exhibit C-2B to the Indenture; or
-2-
(C) an opinion of counsel satisfactory to the Indenture Trustee with respect to
the availability of such exemption from registration under the Securities Act,
together with copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Bond except in compliance with the provisions of
Section 2.05 of the Indenture, which provisions it has carefully reviewed, and
that each Transferred Bond will bear the following legends:
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF
THIS BOND OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 2.05 OF THE INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 2.05 OF THE INDENTURE
REFERRED TO HEREIN.
THIS BOND MAY NOT BE TRANSFERRED UNLESS (A) THE PROSPECTIVE
TRANSFEREE FURNISHES AN OPINION OF COUNSEL WHICH ESTABLISHES THAT,
UPON TRANSFER, THIS BOND WILL BE CHARACTERIZED AS INDEBTEDNESS FOR
FEDERAL INCOME TAX PURPOSES OR (B) SUCH TRANSFEREE FURNISHES THE
INVESTMENT REPRESENTATIONS, OPINION OF COUNSEL AND RATING AGENCY
CONFIRMATIONS DESCRIBED IN THE INDENTURE.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Bond, any
interest in any Bond or any other similar security to any person in any manner,
(b) solicited any offer to buy or accept a pledge, disposition or other transfer
of any Bond, any interest in any Bond or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to any Bond, any interest in any Bond or any other similar security
with any person in any manner, (d) made any general solicitation with respect to
any Bond, any interest in any Bond or any other similar security by means of
general advertising or in any other manner, or (e) taken any other action with
respect to any Bond, any interest in any Bond or any other similar security,
which (in the case of any of the acts described in clauses (a) through (e)
above) would constitute a distribution of the Transferred Bonds under the
Securities Act, would render the disposition of the Transferred Bonds a
violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Bonds pursuant
thereto. The Transferee will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Bond, any interest in any Bond or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Company and the Issuer, (b) the Transferred Bonds and payments thereon,
(c) the Indenture and the Trust Estate, (d) the nature and performance of the
Mortgage Loans, and (e) all related matters, that it has requested. If the
Transferee did not purchase the Transferred Bonds from the Transferor in
connection with the initial issuance of the Transferred Bonds and was provided
with a copy of a Private Placement Memorandum (a"Memorandum") relating to the
original sales (the "Original Sales") of the Transferred Bonds by the Depositor
solely for use in connection with the Original Sales and the Depositor did not
participate in or facilitate in any way the acquisition of the Transferred Bonds
by the Transferee from Transferee from the Transferor, and the Transferee agrees
that it will look solely to the Transferor and not to the Depositor with respect
to any damage, liability, claim or expense arising out of, resulting from or in
connection with (x) any error or omission, or alleged error or omission,
contained in the Memorandum, or (y) any information, development or event
arising after the date of the Memorandum.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Bonds; the Transferee has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment decision;
and the Transferee is able to bear the economic risks of such investment and can
afford a complete loss of such investment.
Very truly yours,
(Transferee)
By:
Name:
Title:
EXHIBIT D-1
SCHEDULE OF EXCEPTIONS TO LOAN FILE DELIVERY
EXHIBIT D-2
FORM OF FINAL CERTIFICATION OF INDENTURE TRUSTEE
[Date]
Impac Commercial Holdings, Inc.
Impac Commercial Assets Corp.
IMH Assets Corp.
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Re: Impac CMB Trust 1998-C1
Collateralized Mortgage Bonds (the "Bonds")
-------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.03 of the
above-referenced Indenture the undersigned, as Indenture Trustee, hereby
certifies that, as to each Mortgage Loan listed on the Loan Schedule (other than
any such Mortgage Loan specifically identified in any exception report annexed
thereto as not being covered by such certification) (A) all documents specified
in clauses (i),(iii), (v), (vii), (viii) and (ix) to the extent that the
Indenture Trustee has been instructed in writing that the documents specified in
such clauses are required to be in the Mortgage Loan File relating to any
Mortgage Loan) of the definition of "Mortgage Loan File" are in its possession,
(B) all documents received by it with respect to such Mortgage Loan have been
reviewed by it and appear regular on their face (handwritten additions, changes
or corrections shall not constitute irregularities if initialed by the Borrower)
and relate to such Mortgage Loan, and (C) based on the examinations referred to
in Section 2.03(a) and Section 2.03(b) and only as to the foregoing documents,
the information set forth in such Mortgage Loan Schedule with respect to the
items specified in clauses (ii), (iii), (iv), (v), (vii), (viii) and (ix) of the
definition of "Mortgage Loan Schedule" accurately reflects the information set
forth in the Mortgage Loan File.
The Indenture Trustee shall not be under any duty or obligation to
inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, enforceable, in recordable form,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
-2-
The Indenture Trustee shall not assign, sell, dispose of or transfer
any interest in the Mortgage Loans or any other asset constituting the Trust
Estate (except as expressly provided herein) or knowingly permit the Mortgage
Loans or any other asset constituting the Trust Estate to be subjected to any
lien, claim or encumbrance arising by, through or under the Indenture Trustee or
any Person claiming by, through or under the Indenture Trustee.
Capitalized terms used herein without definition have the meanings
ascribed to them in the Indenture.
LASALLE NATIONAL BANK,
as Indenture Trustee
By:________________________________
Name:
Title:
EXHIBIT E-1
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION
REQUEST BY BONDHOLDER
[Date]
LaSalle National Bank
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Re: Impac CMB Trust 1998-C1
Collateralized Mortgage Bonds (the "Bonds")
-------------------------------------------
In accordance with Section 6.03 of the Indenture, dated as of August
1, 1998 (the "Indenture"), by and among Impac CMB Trust 1998-C1 as issuer (the
"Issuer") and LaSalle National Bank as indenture trustee (the "Indenture
Trustee"), with respect to the Bonds, the undersigned hereby certifies and
agrees as follows:
1. The undersigned is the beneficial owner of the Class ____ Bonds.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 6.03 of the Indenture (the
"Information") for use in evaluating its investment in the Class ____
Bonds.
3. In consideration of the Indenture Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in
making the evaluation described in paragraph 2), and such Information will
not, without the prior written consent of the Indenture Trustee, be
disclosed by the undersigned or by its officers, directors, partners
employees, agents or representatives (collectively, the "Representatives")
in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended, or would require registration of any Bond pursuant
to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Seller, the Indenture Trustee and the Trust Estate for any
loss, liability or expense incurred thereby with respect to any such breach
by the undersigned or any of its Representatives.
-2-
Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Indenture.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BONDHOLDER]
By:
Name:
Title:
EXHIBIT E-2
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION
REQUEST BY PROSPECTIVE PURCHASER
[Date]
LaSalle National Bank
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Re: Impac CMB Trust 1998-C1
Collateralized Mortgage Bonds (the "Bonds")
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In accordance with Section 6.03 of the Indenture, dated as of August
1, 1998 (the "Indenture"), by and between Impac CMB Trust 1998-C1 as issuer (the
"Issuer") and LaSalle National Bank as indenture trustee (the "Indenture
Trustee"), with respect to the Bonds, the undersigned hereby certifies and
agrees as follows:
1. The undersigned is contemplating an investment in the Class ____
Bonds.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 6.03 of the Indenture (the
"Information") solely for use in evaluating such possible investment.
3. In consideration of the Indenture Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in
making the investment decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of the Indenture
Trustee, be disclosed by the undersigned or by its officers, directors,
partners employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended, or would require registration of any Bond pursuant
to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Seller, the Indenture Trustee and the Trust Estate for any
loss, liability or expense incurred thereby with respect to any such breach
by the undersigned or any of its Representatives.
-2-
Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Indenture.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:
Name:
Title:
The undersigned is a beneficial owner of Class __ Bonds contemplating
a transfer of all or a portion of such Bonds to the prospective purchaser named
above.
[PROSPECTIVE TRANSFEREE]
By:_______________________
Name:
Title:
EXHIBIT F
FORM OF ERISA REPRESENTATION
FOR TRANSFERS OF CLASS F BONDS
[Date]
LaSalle National Bank
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Re: Impac CMB Trust 1998-C1
Collateralized Mortgage Bonds (the "Bonds")
-------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class F Bonds having an initial aggregate Bond Principal Balance as of August
26, 1998 (the "Closing Date") of $_____________ (the "Class F Bonds"). The
Bonds, including the Class F Bonds, were issued pursuant to the Indenture, dated
as of August 1, 1998 (the "Indenture"), between Impac CMB Trust 1998-C1 (the
"Issuer") and LaSalle National Bank (the "Indenture Trustee"). All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Indenture. The Transferor hereby certifies, represents and
warrants to you, as Bond Registrar, and for the benefit of the Issuer, the
Company, the Indenture Trustee, the Owner Trustee, the Master Servicer and the
Special Servicer, that either (a) or (b) is satisfied, as marked below:
______ a. the Transferee is not any employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
the Internal Revenue Code of 1986 (the "Code"), a Person acting, directly or
indirectly, on behalf of any such plan or any Person acquiring such Class F
Bonds with "plan assets" of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R. ss.2510.3-101; or
______ b. one or more statutory or administrative exemptions applies,
such that the acquisition and holding of the Class F Bonds by the Transferee
does not and will not constitute or otherwise result in a non-exempt prohibited
transaction in violation of Section 406 of ERISA or Section 4975 of the Code and
will not subject the Issuer, the Company, the Indenture Trustee, the Owner
Trustee, the Master Servicer or the Special Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in the Indenture or the Owner Trust Agreement.
-2-
Very truly yours,
(Transferor)
By:__________________________
Name:
Title: