EXHIBIT 10.1
NOTE GUARANTY INSURANCE POLICY
OBLIGATIONS: Irwin Whole Loan Home Equity Trust 2002-A POLICY NUMBER: 38381
Home Equity Loan-Backed Notes, Series 2002-A
$49,230,000 Class IA-1 Notes and
Not to Exceed $5,000,000
Home Equity Loan-Backed Variable Funding Notes, Series 2002-A
MBIA Insurance Corporation (the "Insurer"), in consideration of the
payment of the premium and subject to the terms of this Note Guaranty Insurance
Policy (this "Policy"), hereby unconditionally and irrevocably guarantees to any
Owner that an amount equal to each full and complete Insured Payment will be
received from the Insurer by WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
or its successors, as indenture trustee for the Owners (the "Indenture
Trustee"), on behalf of the Owners, for distribution by the Indenture Trustee to
each Owner of each Owner's proportionate share of the Insured Payment. The
Insurer's obligations hereunder with respect to a particular Insured Payment
shall be discharged to the extent funds equal to the applicable Insured Payment
are received by the Indenture Trustee, whether or not such funds are properly
applied by the Indenture Trustee. Insured Payments shall be made only at the
time set forth in this Policy, and no accelerated Insured Payments shall be made
regardless of any acceleration of the Obligations, unless such acceleration is
at the sole option of the Insurer.
Notwithstanding the foregoing paragraph, this Policy does not cover
shortfalls, if any, attributable to the liability of the trust fund or the
Indenture Trustee for withholding taxes, if any (including interest and
penalties in respect of any such liability) Interest Carry-Forward Amounts,
Relief Act Shortfalls, or any shortfalls to the amount available to pay interest
on the Obligations caused by the partial or full prepayment of Group I Mortgage
Loans.
The Insurer will pay any Insured Payment that is a Preference Amount on
the Business Day following receipt on a Business Day by the Fiscal Agent (as
described below) of (a) a certified copy of the order requiring the return of a
preference payment, (b) an opinion of counsel satisfactory to the Insurer that
such order is final and not subject to appeal, (c) an assignment in such form as
is reasonably required by the Insurer, irrevocably assigning to the Insurer all
rights and claims of the Owner relating to or arising under the Obligations
against the debtor which made such preference payment or otherwise with respect
to such preference payment and (d) appropriate instruments to effect the
appointment of the Insurer as agent for such Owner in any legal proceeding
related to such preference payment, such instruments being in a form
satisfactory to the Insurer, provided that if such documents are received after
12:00 noon, New York City time, on such Business Day, they will be deemed to be
received on the following Business Day. Such payments shall be disbursed to the
receiver or trustee in bankruptcy named in the final order of the court
exercising jurisdiction on behalf of the Owner and not to any Owner directly
unless such Owner has returned principal or interest paid on the Obligations to
such receiver or trustee in bankruptcy, in which case such payment shall be
disbursed to such Owner.
The Insurer will pay any other amount payable hereunder no later than
12:00 noon, New York City time, on the later of the Payment Date on which the
related Deficiency Amount is due or the second Business Day following receipt in
New York, New York on a Business Day by State Street Bank and Trust Company,
N.A., as Fiscal Agent for the Insurer, or any successor fiscal agent appointed
by the Insurer (the "Fiscal Agent"), of a Notice (as described below), provided
that if such Notice is received after 12:00 noon, New York City time, on such
Business Day, it will be deemed to be received on the following Business Day. If
any such Notice received by the Fiscal Agent is not in proper form or is
otherwise insufficient for the purpose of making claim hereunder, it shall be
deemed not to have been received by the Fiscal Agent for purposes of this
paragraph, and the Insurer or the Fiscal Agent, as the case may be, shall
promptly so advise the Indenture Trustee and the Indenture Trustee may submit an
amended Notice.
Insured Payments due hereunder, unless otherwise stated herein, will be
disbursed by the Fiscal Agent to the Indenture Trustee on behalf of the Owners
by wire transfer of immediately available funds in the amount of the Insured
Payment less, in respect of Insured Payments related to Preference Amounts, any
amount held by the Indenture Trustee for the payment of such Insured Payment and
legally available therefor.
The Fiscal Agent is the agent of the Insurer only, and the Fiscal Agent
shall in no event be liable to Owners for any acts of the Fiscal Agent or any
failure of the Insurer to deposit, or cause to be deposited, sufficient funds to
make payments due under this Policy.
Subject to the terms of the Agreement, the Insurer shall be subrogated
to the rights of each Owner to receive payments under the Obligations to the
extent of any payment by the Insurer hereunder.
As used herein, the following terms shall have the following meanings:
"Agreement" means the Indenture dated as of May 31, 2002 among the
Irwin Whole Loan Home Equity Trust 2002-A, as Issuer, and the Indenture Trustee,
as indenture trustee, without regard to any amendment or supplement thereto,
unless such amendment or supplement has been approved in writing by the Insurer.
"Business Day" means any day other than (a) a Saturday or a Sunday (b)
a day on which the Insurer is closed or (c) a day on which banking institutions
in New York City, or in the city in which the corporate trust office of the
Indenture Trustee under the Agreement is located are authorized or obligated by
law or executive order to close.
"Deficiency Amount" means (a) with respect to the Obligations and any
Payment Date, the amount by which the aggregate amount of accrued interest on
the Obligations (excluding any Interest Carry-Forward Amounts and Relief Act
Shortfalls for such Payment Date and any shortfalls for such Payment Date caused
by partial or full prepayments of the Group I Mortgage Loans) at the Note Rate
on such Payment Date exceeds the amount on deposit in the Trustee Collection
Account available for interest distributions on the Obligations on such Payment
Date and (b)(i) with respect to any Payment Date that is not the Final Payment
Date, any
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Subordination Deficit Amount for such Payment Date, to the extent not
distributed as part of the Liquidation Loss Distribution Amount on such Payment
Date or a reduction in the Overcollateralization Amount or (ii) on the Final
Payment Date, the aggregate outstanding Note Balance of the Obligations to the
extent otherwise not paid on such date.
"Final Payment Date" means July 25, 2032.
"Insured Payment" means (a) as of any Payment Date, any Deficiency
Amount and (b) any Preference Amount.
"Notice" means the telephonic or telegraphic notice, promptly confirmed
in writing by facsimile substantially in the form of Exhibit A attached hereto,
the original of which is subsequently delivered by registered or certified mail,
from the Indenture Trustee specifying the Insured Payment which shall be due and
owing on the applicable Payment Date.
"Owner" means each Group I Noteholder (as defined in the Agreement)
who, on the applicable Payment Date, is entitled under the terms of the
applicable Obligations to payment thereunder.
"Preference Amount" means any amount previously distributed to an Owner
on the Obligations that is recoverable and sought to be recovered as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code (11 U.S.C.), as amended from time to time in accordance with a final
nonappealable order of a court having competent jurisdiction.
"Relief Act Shortfalls" means current interest shortfalls resulting
from the application of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Agreement as of the date of
execution of this Policy, without giving effect to any subsequent amendment to
or modification of the Agreement unless such amendment or modification has been
approved in writing by the Insurer.
Any notice hereunder or service of process on the Fiscal Agent may be
made at the address listed below for the Fiscal Agent or such other address as
the Insurer shall specify in writing to the Indenture Trustee.
The notice address of the Fiscal Agent is 15th Floor, 61 Broadway, New
York, New York 10006, Attention: Municipal Registrar and Paying Agency, or such
other address as the Fiscal Agent shall specify to the Indenture Trustee in
writing.
THIS POLICY IS BEING ISSUED UNDER AND PURSUANT TO, AND SHALL BE
CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
The insurance provided by this Policy is not covered by the
Property/Casualty Insurance Security Fund specified in Article 76 of the New
York Insurance Law.
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This Policy is not cancelable for any reason. The premium on this
Policy is not refundable for any reason, including payment, or provision being
made for payment, prior to maturity of the Obligations.
IN WITNESS WHEREOF, the Insurer has caused this Policy to be executed
and attested this 20th day of June 2002.
MBIA INSURANCE CORPORATION
By /s/ GARY C. DUNTON
------------------
President
Attest:
By /s/ AMY R. GONCH
------------------
Assistant Secretary
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EXHIBIT 10.1
EXHIBIT A
TO NOTE GUARANTY INSURANCE
POLICY NUMBER: 38381
NOTICE UNDER NOTE GUARANTY
INSURANCE POLICY NUMBER: 38381
State Street Bank and Trust Company, N.A., as Fiscal Agent
for MBIA Insurance Corporation
15th Floor
61 Broadway
New York, NY 10006
Attention: Municipal Registrar and
Paying Agency
MBIA Insurance Corporation
113 King Street
Armonk, NY 10504
The undersigned, a duly authorized officer of [NAME OF INDENTURE
TRUSTEE], as indenture trustee (the "Indenture Trustee"), hereby certifies to
State Street Bank and Trust Company, N.A. (the "Fiscal Agent") and MBIA
Insurance Corporation (the "Insurer"), with reference to Note Guaranty Insurance
Policy Number: 38381 (the "Policy") issued by the Insurer in respect of the
Irwin Whole Loan Home Equity Trust 2002-A Home Equity Loan-Backed Notes, Series
2002-A $49,230,000 Class IA-1 Notes and Not to Exceed $5,000,000 Home Equity
Loan-Backed Variable Funding Notes, Series 2002-A (the "Obligations"), that:
(a) the Indenture Trustee is the indenture trustee under the
Indenture dated as of May 31, 2002, among Irwin Whole Loan Home Equity
Loan Trust 2002-A, as Issuer, and the Indenture Trustee, as indenture
trustee for the Owners;
(b) the amount due under clause (a) of the definition of
Deficiency Amount for the Payment Date occurring on [ ] (the
"Applicable Payment Date") is $[ ];
(c) the amount due under clause (b) of the definition of
Deficiency Amount for the Applicable Payment Date is $[ ];
(d) the sum of the amounts listed in paragraphs (b) and
(c) above is $[ ] (the "Deficiency Amount");
(e) the amount of previously distributed payments on the
Obligations that is recoverable and sought to be recovered as a
voidable preference by a trustee in bankruptcy pursuant to the
Bankruptcy Code in accordance with a final nonappealable
order of a court having competent jurisdiction is $[ ] (the
"Preference Amount");
(f) the total Insured Payment due is $[ ], which
amount equals the sum of the Deficiency Amount and the Preference
Amount;
(g) the Indenture Trustee is making a claim under and pursuant
to the terms of the Policy for the dollar amount of the Insured Payment
set forth in (d) above to be applied to the payment of the Deficiency
Amount for the Applicable Payment Date in accordance with the Agreement
and for the dollar amount of the Insured Payment set forth in (e) above
to be applied to the payment of any Preference Amount; and
(h) the Indenture Trustee directs that payment of the
Insured Payment be made to the following account by bank wire transfer
of federal or other immediately available funds in accordance with the
terms of the Policy: [INDENTURE TRUSTEE'S ACCOUNT NUMBER].
Any capitalized term used in this Notice and not otherwise defined
herein shall have the meaning assigned thereto in the Policy.
Any Person Who Knowingly And With Intent To Defraud Any Insurance Company Or
Other Person Files An Application For Insurance Or Statement Of Claim Containing
Any Materially False Information, Or Conceals For The Purpose Of Misleading,
Information Concerning Any Fact Material Thereto, Commits A Fraudulent Insurance
Act, Which Is A Crime, And Shall Also Be Subject To A Civil Penalty Not To
Exceed Five Thousand Dollars And The Stated Value Of The Claim For Each Such
Violation.
IN WITNESS WHEREOF, the Indenture Trustee has executed and delivered
this Notice under the Policy as of the [ ] day of [ ], [ ].
[NAME OF INDENTURE TRUSTEE], as Indenture Trustee
By ____________________________________________________
Title _________________________________________________
A-2