EXHIBIT 3.1
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IMH ASSETS CORP.
as Depositor
WILMINGTON TRUST COMPANY,
as Owner Trustee
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Certificate Registrar and Certificate Paying Agent
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AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of September 29, 2003
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Trust Certificates,
Series 2003-10
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Table of Contents
Section Page
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ARTICLE I
Definitions..................................................................1
Section 1.01. Definitions..........................................1
Section 1.02. Other Definitional Provisions........................1
ARTICLE II.....................................................................3
Organization...................................................................3
Section 2.01. Name.................................................3
Section 2.02. Office...............................................3
Section 2.03. Purposes and Powers..................................3
Section 2.04. Appointment of Owner Trustee.........................4
Section 2.05. Initial Capital Contribution of Owner Trust Estate...4
Section 2.06. Declaration of Trust.................................4
Section 2.07. Liability of the Holders of the Certificates.........4
Section 2.08. Title to Trust Property..............................5
Section 2.09. Situs of Trust.......................................5
Section 2.10. Representations and Warranties of the Depositor......5
Section 2.11. Payment of Trust Fees................................6
Section 2.12. Investment Company...................................6
Section 2.13. Transfer of Trust Estate to Owner Trustee............6
ARTICLE III
Conveyance of the Mortgage Loans;............................................9
Section 3.01. Conveyance of the Mortgage Loans.....................9
Section 3.02. Initial Ownership....................................9
Section 3.03. The Certificates.....................................9
Section 3.04. Authentication of Certificates......................10
Section 3.05. Registration of and Limitations on Transfer and
Exchange of Certificates............................10
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates...12
Section 3.07. Persons Deemed Certificateholders...................12
Section 3.08. Access to List of Certificateholders' Names and
Addresses...........................................13
Section 3.09. Maintenance of Office or Agency.....................13
Section 3.10. Certificate Paying Agent............................13
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ARTICLE IV
Authority and Duties of Owner Trustee.......................................15
Section 4.01. General Authority...................................15
Section 4.02. General Duties......................................15
Section 4.03. Action upon Instruction.............................15
Section 4.04. No Duties Except as Specified under Specified
Documents or in Instructions........................16
Section 4.05. Restrictions........................................16
Section 4.06. Prior Notice to Certificateholders with Respect
to Certain Matters..................................16
Section 4.07. Action by Certificateholders with Respect to
Certain Matters.....................................17
Section 4.08. Action by Certificateholders with Respect to
Bankruptcy..........................................17
Section 4.09. Restrictions on Certificateholders' Power...........17
Section 4.10. Majority Control....................................17
Section 4.11. Optional Redemption.................................18
ARTICLE V
Application of Trust Funds..................................................19
Section 5.01. Distributions.......................................19
Section 5.02. Method of Payment...................................19
Section 5.03. Tax Returns.........................................19
Section 5.04. Statements to Certificateholders....................20
ARTICLE VI
Concerning the Owner Trustee................................................21
Section 6.01. Acceptance of Trusts and Duties.....................21
Section 6.02. Furnishing of Documents.............................22
Section 6.03. Representations and Warranties......................22
Section 6.04. Reliance; Advice of Counsel.........................23
Section 6.05. Not Acting in Individual Capacity...................23
Section 6.06. Owner Trustee Not Liable for Certificates or
Related Documents...................................23
Section 6.07. Owner Trustee May Own Certificates and Bonds........24
Section 6.08. Payments from Owner Trust Estate....................24
Section 6.09. Doing Business in Other Jurisdictions...............24
Section 6.10. Liability of Certificate Registrar and Certificate
Paying Agent........................................24
ARTICLE VII
Compensation of Owner Trustee...............................................25
Section 7.01. Owner Trustee's Fees and Expenses...................25
Section 7.02. Indemnification.....................................25
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ARTICLE VIII
Termination of Trust Agreement..............................................27
Section 8.01. Termination of Trust Agreement......................27
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees......................29
Section 9.01. Eligibility Requirements for Owner Trustee..........29
Section 9.02. Replacement of Owner Trustee........................29
Section 9.03. Successor Owner Trustee.............................29
Section 9.04. Merger or Consolidation of Owner Trustee............30
Section 9.05. Appointment of Co-Trustee or Separate Trustee.......30
ARTICLE X
Miscellaneous...............................................................32
Section 10.01. Amendments.........................................32
Section 10.02. No Legal Title to Owner Trust Estate...............33
Section 10.03. Limitations on Rights of Others....................33
Section 10.04. Notices............................................34
Section 10.05. Severability.......................................34
Section 10.06. Separate Counterparts..............................34
Section 10.07. Successors and Assigns.............................34
Section 10.08. No Petition........................................34
Section 10.09. No Recourse........................................35
Section 10.10. Third-Party Beneficiaries..........................35
Section 10.11. Headings...........................................35
Section 10.12. GOVERNING LAW......................................35
Section 10.13. Integration........................................35
Signatures .................................................................40
EXHIBITS
Exhibit A - Form of Certificate ...........................................A-1
Exhibit B - Certificate of Trust of Impac CMB Trust .......................B-1
Exhibit C - Form of Rule 144A Investment Representation ...................C-1
Exhibit D - Form of Certificate of Non-Foreign Status .....................D-1
Exhibit E - Form of Investment Letter .....................................E-1
Exhibit F - Form of Transferor Certificate ................................F-1
Exhibit G - Form of ERISA Letter ..........................................G-1
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This Amended and Restated Trust Agreement, dated as of September 29, 2003
(as amended from time to time, this "Trust Agreement"), among IMH Assets Corp.,
a California corporation, as depositor (the "Depositor"), Wilmington Trust
Company, a Delaware banking corporation, as owner trustee (the "Owner Trustee"),
and Deutsche Bank National Trust Company, as certificate registrar (in such
capacity, the "Certificate Registrar") and certificate paying agent (in such
capacity, the "Certificate Paying Agent").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the Depositor
and the Owner Trustee agree as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in Appendix A to the Indenture, dated September 29, 2003,
between Impac CMB Trust Series 2003-10, as Issuer, and Deutsche Bank National
Trust Company, as Indenture Trustee, which is incorporated by reference herein.
All other capitalized terms used herein shall have the meanings specified
herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Trust Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other document,
and accounting terms partly defined in this Trust Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this Trust
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Trust Agreement or in any such certificate or
other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Trust Agreement shall refer to this Trust Agreement as a whole
and not to any particular provision of this Trust Agreement; Article, Section
and Exhibit references contained in this Trust Agreement are references to
Articles, Sections and Exhibits in or to this Trust Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation".
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(d) The definitions contained in this Trust Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
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ARTICLE II
Organization
Section 2.01. Name. The trust created hereby (the "Trust") shall be known
as "Impac CMB Trust Series 2003-10", in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to the Certificateholders
and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(i) to issue the Bonds pursuant to the Indenture and the
Certificates pursuant to this Trust Agreement and to sell the Bonds and
the Certificates;
(ii) to pay the organizational, start-up and transactional expenses
of the Trust;
(iii) to assign, grant, transfer, pledge and convey the Mortgage
Loans pursuant to the Indenture and to hold, manage and distribute to the
Certificateholder pursuant to Section 5.01 herein, any portion of the
Mortgage Loans released from the Lien of, and remitted to the Trust
pursuant to the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) if directed by holders of Certificates representing more than
50% of the beneficial interests in the Trust, sell the Trust Estate
subsequent to the discharge of the Indenture, all for the benefit of the
holders of the Certificates;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Owner Trust Estate and the making of distributions to the
Certificateholder and the Bondholders.
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The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Trust Agreement or the
Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges on behalf of the Trust the receipt in trust of the Mortgage Loans,
the Bond Insurance Policy pursuant to Section 3.01, the rights with respect to
the Derivative Contracts and the Special Certificate Cap Contract and the rights
with respect to the representations and warranties made by the Seller under the
Mortgage Loan Sale and Contribution Agreement which shall constitute the Owner
Trust Estate.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that
it shall hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a "statutory trust" under the
Statutory Trust Statute and that this Trust Agreement constitute the governing
instrument of such statutory trust. It is the intention of the parties hereto
that, for federal and state income and state and local franchise tax purposes,
the Trust (A) shall not be treated as (i) an association subject separately to
taxation as a corporation, (ii) a "publicly traded partnership" as defined in
Treasury Regulation Section 1.7704-1 or (iii) a "taxable mortgage pool" as
defined in Section 7701(i) of the Code, (B) shall, as of the Closing Date, be
disregarded as a separate entity (and if at any other time the Trust
Certificates are held by more than one person for federal income tax purposes,
shall be treated as a partnership), and (C) that each Class of Bonds shall be
debt, and the provisions of this Agreement shall be interpreted to further this
intention. Except as otherwise provided in this Trust Agreement, the rights of
the Certificateholder will be those of equity owners of the Trust. Effective as
of the date hereof, the Owner Trustee shall have all rights, powers and duties
set forth herein and in the Statutory Trust Statute with respect to
accomplishing the purposes of the Trust.
Section 2.07. Liability of the Holders of the Certificates. The Holders of
the Certificates shall be jointly and severally liable directly to and shall
indemnify any injured party for all losses, claims, damages, liabilities and
expenses of the Trust and the Owner Trustee (including Expenses, to the extent
not paid out of the Owner Trust Estate); provided, however, that the Holders of
the Certificates shall not be liable for payments required to be made on the
Bonds or the Certificates, or for any losses incurred by a Certificateholder in
the capacity of an investor in the Certificates or a Bondholder in the capacity
of an investor in the Bonds. The Holders of the Certificates shall be liable for
and shall promptly pay any entity level taxes imposed on the Trust. In addition,
any third party creditors of the Trust (other than in connection with the
obligations described in the second preceding
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sentence for which the Holders of the Certificates shall not be liable) shall be
deemed third party beneficiaries of this paragraph. The obligations of the
Holders of the Certificates under this paragraph shall be evidenced by the
Certificates.
Section 2.08. Title to Trust Property. Except with respect to the Mortgage
Loans, which will be assigned of record to the Indenture Trustee pursuant to the
Indenture, legal title to the Owner Trust Estate shall be vested at all times in
the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be vested
in a trustee or trustees, in which case title shall be deemed to be vested in
the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware. The Trust shall
not have any employees in any state other than Delaware; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware or taking actions outside the
State of Delaware in order to comply with Section 2.03. Payments will be
received by the Trust only in Delaware, New York, Maryland or California, and
payments will be made by the Trust only from Delaware, New York or California.
The only office of the Trust will be at the Corporate Trust Office in Delaware.
Section 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of California,
with power and authority to own its properties and to conduct its business
as such properties are currently owned and such business is presently
conducted.
(ii) The Depositor is duly qualified to do business as a foreign
corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of its
property or the conduct of its business shall require such qualifications
and in which the failure to so qualify would have a material adverse
effect on the business, properties, assets or condition (financial or
other) of the Depositor.
(iii) The Depositor has the power and authority to execute and
deliver this Trust Agreement and to carry out its terms; the Depositor has
full power and authority to convey and assign the property to be conveyed
and assigned to and deposited with the Trust as part of the Owner Trust
Estate and the Depositor has duly authorized such conveyance and
assignment and deposit to the Trust by all necessary corporate action; and
the execution, delivery and performance of this Trust Agreement have been
duly authorized by the Depositor by all necessary corporate action.
(iv) The consummation of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Depositor, or any indenture, agreement or
other
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instrument to which the Depositor is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate any
law or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties.
(v) The Trust is not required to register as an investment company
under the Investment Company Act and is not under the control of a Person
required to so register.
(vi) The Depositor has been a "qualified REIT subsidiary" as defined
in Section 856(i) of the Code throughout its existence.
Section 2.11. Payment of Trust Fees. The Master Servicer shall remit the
Owner Trustee's Fee to the Owner Trustee pursuant to Section 3.07 of the
Servicing Agreement. The Master Servicer shall pay the Trust's expenses
(including expenses of the Owner Trustee and the Indenture Trustee) incurred
with respect to the performance of the Trust's duties under the Indenture
pursuant to a separate side agreement, or, if such amounts are insufficient, the
Owner Trustee shall be paid pursuant to Section 5.01 hereof.
Section 2.12. Investment Company. Neither the Depositor nor any holder of
a Certificate shall take any action which would cause the Trust to become an
"investment company" which would be required to register under the Investment
Company Act.
Section 2.13. Transfer of Trust Estate to Owner Trustee. (a) Effective as
of the date hereof, the Depositor does hereby assign, transfer, and otherwise
convey to, and deposit with, the Trust, until this Agreement terminates pursuant
to Section 8.01, the entire Trust Estate, such conveyance to be made in exchange
for the Bonds and the Certificates. Such assignment includes, without
limitation, all amounts payable to and all rights of the holder of the
Collateral pursuant to this Agreement.
The conveyance of the Collateral and all other assets constituting the
Trust Estate by the Depositor as contemplated hereby is absolute and is intended
by the parties to constitute a sale of the Collateral and all other assets
constituting the Trust Estate by the Depositor to the Trust. It is, further, not
intended that such conveyance be deemed a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event:
(i) this Agreement shall constitute a security agreement under
applicable law and shall be deemed to create valid and continuing security
interest (as defined in the applicable UCC) in the Trust Estate
(including, without limitation, the Collateral, the Certificate
Distribution Account and any proceeds thereof) in favor of the Trust,
which security interest is prior to all other Liens, and is enforceable as
such as against creditors of and purchasers from the Depositor;
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(ii) other than the security interest granted to the Trust pursuant
to this Agreement, Depositor has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Trust Estate, has
not authorized the filing of and is not aware of any financing statements
against the Trust Estate that includes a description of collateral
covering the Trust Estate other than any financing statements relating to
the security interest granted to the Trust hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien filings
against Depositor;
(iii) the Depositor owns and has good and marketable title to the
Trust Estate free and clear of any Lien, claim or encumbrance of any
Person;
(iv) the Certificate Distribution Account constitutes a "deposit
account" within the meaning of the applicable UCC. The Depositor has
directed the Bank to take all steps necessary to cause the Certificate
Paying Agent to become the account holder of the Certificate Distribution
Account. The Certificate Distribution Account is not in the name of any
Person other than as provided in Section 3.10 of this Agreement. The
Depositor has not consented to the maintenance of the Certificate
Distribution Account in compliance with instructions of any Person other
than the Certificate Paying Agent;
(vi) the Trust Estate (excluding the Certificate Distribution
Account and any proceeds thereof) constitutes "general intangibles" within
the meaning of the applicable UCC). The Depositor has received all
required consents and approvals to the pledge of the portions of the Trust
Estate (excluding the Certificate Distribution Account and any proceeds
thereof) constituting payment intangibles;
(vii) the Depositor has caused or will have caused, within ten days,
the filing of all appropriate financing statements in the appropriate
filing offices under applicable law in order to perfect the security
interest in the Trust Estate granted to the Trust hereunder. All financing
statements filed or to be filed against the Depositor in favor of the
Trust (or any subsequent assignee, including, without limitation, the
Indenture Trustee) in connection herewith describing the Trust Estate
contain a statement to the following effect, "A purchase of, or security
interest in, any collateral described in this financing statement will
violate the rights of the secured party;" and
(viii) the Depositor shall, to the extent consistent with this
Agreement, take such additional reasonable actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest
in the Underlying Certificates and the other assets of the Trust Estate,
such security interest would be a perfected security interest of first
priority under applicable law and will be maintained as such throughout
the life of this Agreement. Notifications to, and acknowledgments,
receipts or confirmations from, Persons holding such property, shall be
deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Owner Trustee on behalf of the Trust (or any subsequent
assignee, including, without limitation, the Indenture Trustee) for the
purpose of perfecting such security interest under applicable law.
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(c) The Owner Trustee hereby acknowledges the receipt by it of the
Trust Estate and such other documents and instruments referenced above, and
declares that it holds and will hold the Trust Estate and such documents and
instruments and that it holds and will hold all other assets and documents to be
included in the Trust Estate, in trust for the exclusive use and benefit of all
present and future Certificateholders.
(d) Except as expressly provided in Section 8.01, neither the
Depositor nor any Certificateholder shall be able to revoke the Trust
established hereunder. Except as provided in Sections 4.01, 4.02, 4.03, 5.01 and
8.01 hereof, the Owner Trustee or Certificate Paying Agent (as Applicable) shall
not assign, sell, dispose of or transfer any interest in, nor may the Depositor
or any Certificateholder withdraw from the Trust, the Collateral or other asset
constituting the Trust Estate.
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ARTICLE III
Conveyance of the Mortgage Loans;
Certificates
Section 3.01. Conveyance of the Mortgage Loans. The Depositor,
concurrently with the execution and delivery hereof, does hereby contribute,
transfer, convey and assign to the Trust, on behalf of the Holders of the Bonds
and the Certificates, without recourse, all its right, title and interest in and
to the Mortgage Loans, including all interest and principal received on or with
respect to the Mortgage Loans after the Cut-off Date (other than payments of
principal and interest due on the Mortgage Loans on or before the Cut-off Date).
In addition, the Depositor hereby assigns to the Trust all of its right, title,
and interest in, to, and under the Mortgage Loan Sale and Contribution
Agreement. In addition, the Depositor hereby assigns to the Trust all of its
right, title and interest in, to, and under the Derivative Contracts and the
Special Certificate Cap Contract. The Depositor will also provide the Trust with
the Bond Insurance Policy and the Radian Lender-Paid PMI Policy.
The conveyance of the Mortgage Loans by the Depositor to the Trust
hereunder is intended to facilitate the simultaneous issuance of the Bonds under
the Indenture and issuance of the Certificates hereunder to the Depositor as
Holder, and the Depositor has no present intention of selling any of the
Certificates. Accordingly, at the time of the transaction set forth herein, the
Depositor will retain without interruption, through the ownership of the
Certificates, the economic benefits associated with ownership of the Mortgage
Loans as well as the economic burdens associated with such ownership, subject to
the lien of the Indenture and subject to this Agreement. If the transactions
contemplated by this Trust Agreement are determined to constitute a financing,
the Depositor hereby grants to the Trust a security interest in the Owner Trust
Estate and all distributions thereon and proceeds thereof, and this Trust
Agreement shall constitute a security agreement under applicable law.
Section 3.02. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the conveyance
of the Mortgage Loans pursuant to Section 3.01 and the issuance of the
Certificates, and thereafter except as otherwise permitted hereunder, the
Depositor shall be the sole Certificateholder.
Section 3.03. The Certificates. The Certificates shall be issued in the
form of one or more Certificates, each representing not less than a 10%
Certificate Percentage Interest. The Certificates shall initially be registered
in the name of IMH Assets Corp. The Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of an authorized officer of the Owner
Trustee and authenticated in the manner provided in Section 3.04. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefit of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. A Person shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder
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hereunder upon such Person's acceptance of a Certificate duly registered in such
Person's name, pursuant to Section 3.05.
A transferee of a Certificate shall become a Certificateholder and shall
be entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered in
such transferee's name pursuant to and upon satisfaction of the conditions set
forth in Section 3.05.
Section 3.04. Authentication of Certificates. The Owner Trustee shall
cause all Certificates issued hereunder to be executed and authenticated on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this
Trust Agreement or be valid for any purpose unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or the Certificate Registrar by
manual signature; such authentication shall constitute conclusive evidence that
such Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section 3.05. Registration of and Limitations on Transfer and Exchange of
Certificates. The Certificate Registrar shall keep or cause to be kept, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
Deutsche Bank National Trust Company shall be the initial Certificate Registrar.
If the Certificate Registrar resigns or is removed, the Owner Trustee shall
appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below with respect to
the Certificate, upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 3.09, the Owner Trustee
or the Certificate Registrar shall execute, authenticate and deliver in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or the Certificate Registrar. At the option
of a Holder, Certificates may be exchanged for other Certificates of authorized
denominations of a like aggregate amount upon surrender of the Certificates to
be exchanged at the office or agency maintained pursuant to Section 3.09.
Every Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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No Person shall become a Certificateholder until it shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9
and the Certificate of Non-Foreign Status set forth in Exhibit D hereto.
No transfer, sale, pledge or other disposition of a Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached hereto as Exhibit C (or in such form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer or the Depositor
and which investment letter states that, among other things, such transferee (1)
is a "qualified institutional buyer" as defined under Rule 144A, acting for its
own account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (2) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from said
Act and laws or is being made pursuant to said Act and laws, which Opinion of
Counsel shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Master Servicer or the Depositor and (b) the transferee executes
a representation letter, substantially in the form of Exhibit F to the
Agreement, and transferor executes a representation letter, substantially in the
form of Exhibit E hereto, each acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor certifying the facts
surrounding such transfer, which representation letters shall not be an expense
of the Trust, the Owner Trustee, the Certificate Registrar, the Master Servicer
or the Depositor and (B) the Certificate of Non-Foreign Status (in substantially
the form attached hereto as Exhibit D) acceptable to and in form and substance
reasonably satisfactory to the Certificate Registrar and the Depositor, which
certificate shall not be an expense of the Trust, the Owner Trustee, the
Certificate Registrar or the Depositor. The Holder of a Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer and the Depositor
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.
No transfer of Certificates or any interest therein shall be made to any
Person unless the Depositor, the Owner Trustee, the Certificate Registrar and
the Master Servicer are provided with an Opinion of Counsel which establishes to
the satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar
and the Master Servicer that the purchase of Certificates 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 Depositor, the
Owner Trustee, the Certificate Registrar or the Master 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 Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Owner
Trustee, the Certificate Registrar or the Master Servicer. In lieu of such
Opinion of Counsel, a Person acquiring such Certificates may provide a
certification in the form of Exhibit G to this Agreement, which the Depositor,
the Owner Trustee, the Certificate Registrar and the Master Servicer may rely
upon without further inquiry or
11
investigation. Neither an Opinion of Counsel nor a certification will be
required in connection with the initial transfer of any such Certificate by the
Depositor to an affiliate of the Depositor (in which case, the Depositor or any
affiliate thereof shall be deemed to have represented that such affiliate is not
a Plan or a Person investing Plan Assets of any Plan) and the Owner Trustee and
the Certificate Registrar shall be entitled to conclusively rely upon a
representation (which, upon the request of the Owner Trustee or the Certificate
Registrar, shall be a written representation) from the Depositor of the status
of such transferee as an affiliate of the Depositor.
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner Trustee
and the Certificate Registrar an Opinion of Counsel, rendered by a law firm
generally recognized to be qualified to opine concerning the tax aspects of
asset securitization, to the effect that such transfer (including any
disposition permitted following any default under any pledge or repurchase
transaction) will not cause the Trust to be (i) treated as an association
taxable as a corporation for federal income tax and relevant state income and
franchise tax purposes, (ii) taxable as a taxable mortgage pool as defined in
Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership"
as defined in Treasury Regulation section 1.7704-1 for federal income tax
purposes and relevant state franchise or income tax purposes. Notwithstanding
the foregoing, the provisions of this paragraph shall not apply to the initial
transfer of the Certificates to the Depositor.
No offer, sale, transfer or other disposition (including pledge) of any
Certificate shall be made to any affiliate of the Depositor or the Issuer, other
than the initial transfer of the Certificates to the Depositor.
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a bona fide purchaser, the Owner Trustee shall execute on
behalf of the Trust and the Owner Trustee or the Certificate Registrar, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under this
Section 3.06, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including fees and expenses of counsel) and any tax or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.06 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.07. Persons Deemed Certificateholders. Prior to due presentation
of a Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Certificate Paying Agent may treat the Person in
whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and
12
for all other purposes whatsoever, and none of the Trust, the Owner Trustee, the
Certificate Registrar or any Certificate Paying Agent shall be bound by any
notice to the contrary.
Section 3.08. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the
Depositor, the Certificate Paying Agent or the Owner Trustee, within 15 days
after receipt by the Certificate Registrar of a written request therefor from
the Depositor, the Certificate Paying Agent or the Owner Trustee, a list, in
such form as the Depositor, the Certificate Paying Agent or the Owner Trustee,
as the case may be, may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. Each Holder, by receiving
and holding a Certificate, shall be deemed to have agreed not to hold any of the
Trust, the Depositor, the Certificate Paying Agent, the Certificate Registrar or
the Owner Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 3.09. Maintenance of Office or Agency. The Owner Trustee on behalf
of the Trust, shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee initially
designates the office of the agent of the Indenture Trustee at c/o DTC Transfer
Services, 55 Water Street, Jeanette Park Entrance, New York, New York 10041 for
purposes of such surrender and the Corporate Trust Office of the Indenture
Trustee as its office for such purposes, service of notices or demands. The
Owner Trustee shall give prompt written notice to the Depositor, the Certificate
Paying Agent, the Certificate Registrar and the Certificateholders of any change
in the location of the Certificate Register or any such office or agency.
Section 3.10. Certificate Paying Agent. (a) The Certificate Paying Agent
shall make distributions to Certificateholders from the Certificate Distribution
Account on behalf of the Trust in accordance with the provisions of the
Certificates and Section 5.01 hereof from payments remitted to the Certificate
Paying Agent by the Indenture Trustee pursuant to Section 3.05 of the Indenture.
The Trust hereby appoints Deutsche Bank National Trust Company as Certificate
Paying Agent and Deutsche Bank National Trust Company hereby accepts such
appointment and further agrees that it will be bound by the provisions of this
Trust Agreement relating to the Certificate Paying Agent and shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Certificates in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of
which a Responsible Officer of the Certificate Paying Agent has actual
knowledge in the making of any payment required to be made with respect to
the Certificates;
(iii) at any time during the continuance of any such default, upon
the written request of the Owner Trustee forthwith pay to the Owner
Trustee on behalf of the Trust all sums so held in Trust by such
Certificate Paying Agent;
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(iv) not resign from its position as Certificate Paying Agent so
long as it is Indenture Trustee except that it shall immediately resign as
Certificate Paying Agent and forthwith pay to the Owner Trustee on behalf
of the Trust all sums held by it in trust for the payment of Certificates
if at any time it ceases to meet the standards under this Section 3.10
required to be met by the Certificate Paying Agent at the time of its
appointment;
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith; and
(vi) not institute bankruptcy proceedings against the Issuer in
connection with this Trust Agreement.
(b) The Trust may revoke such power and remove the Certificate Paying
Agent if it determines in its sole discretion that the Certificate Paying Agent
shall have failed to perform its obligations under this Trust Agreement in any
material respect. In the event that Deutsche Bank National Trust Company shall
no longer be the Certificate Paying Agent under this Trust Agreement and Paying
Agent under the Indenture, the Owner Trustee shall appoint a successor to act as
Certificate Paying Agent (which shall be a bank or trust company) and which
shall also be the successor Paying Agent under the Indenture. The Owner Trustee
shall cause such successor Certificate Paying Agent or any additional
Certificate Paying Agent appointed by the Owner Trustee to execute and deliver
to the Owner Trustee an instrument to the effect set forth in Section 3.10(a) as
it relates to the Certificate Paying Agent. The Certificate Paying Agent shall
return all unclaimed funds to the Trust and upon removal of a Certificate Paying
Agent such Certificate Paying Agent shall also return all funds in its
possession to the Trust. The provisions of Sections 6.01, 6.04, 6.05, 6.06,
6.07, 6.08 and 7.01 shall apply to the Certificate Paying Agent to the extent
applicable. Any reference in this Agreement to the Certificate Paying Agent
shall include any co-paying agent unless the context requires otherwise.
(c) The Certificate Paying Agent shall establish and maintain with itself
a trust account (the "Certificate Distribution Account") in which the
Certificate Paying Agent shall deposit, on the same day as it is received from
the Indenture Trustee, each remittance received by the Certificate Paying Agent
with respect to payments made pursuant to the Indenture. The Certificate Paying
Agent shall make all distributions to Certificates, from moneys on deposit in
the Certificate Distribution Account, in accordance with Section 5.01 hereof.
14
ARTICLE IV
Authority and Duties of Owner Trustee
Section 4.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment or other agreement or instrument described herein, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, except
as otherwise provided in this Trust Agreement, to take all actions required of
the Trust pursuant to the Basic Documents.
Section 4.02. General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Trust Agreement and the Basic Documents to which the Trust is
a party and to administer the Trust in the interest of the Certificateholders,
subject to the Basic Documents and in accordance with the provisions of this
Trust Agreement.
Section 4.03. Action upon Instruction. (a) Subject to Article IV and in
accordance with the terms of the Basic Documents, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required
to take any action hereunder or under any Basic Document if the Owner Trustee
shall have reasonably determined, or shall have been advised by counsel, that
such action is likely to result in liability on the part of the Owner Trustee or
is contrary to the terms hereof or of any Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is required to decide between alternative
courses of action permitted or required by the terms of this Trust Agreement or
under any Basic Document, or in the event that the Owner Trustee is unsure as to
the application of any provision of this Trust Agreement or any Basic Document
or any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that this
Trust Agreement permits any determination by the Owner Trustee or is silent or
is incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders, the Owner Trustee shall
not be liable on account of such action to any Person. If the Owner Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Trust Agreement or the Basic Documents, as it shall deem to be in the best
15
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section 4.04. No Duties Except as Specified under Specified Documents or
in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Trust Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 4.03; and no implied duties or obligations
shall be read into this Trust Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement many public office at anytime or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Owner
Trust Estate.
Section 4.05. Restrictions. (a) The Owner Trustee or the Depositor (or an
Affiliate thereof) shall not take any action (x) that is inconsistent with the
purposes of the Trust set forth in Section 2.03, (y) that, to the actual
knowledge of the Owner Trustee based on an Opinion of Counsel rendered by a law
firm generally recognized to be qualified to opine concerning the tax aspects of
asset securitization, would result in the Trust becoming taxable as a
corporation for federal income tax purposes or (z) would result in the amendment
or modification of the Basic Documents or this Trust Agreement. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 4.05.
(b) The Owner Trustee shall not convey or transfer any of the Trust's
properties or assets, including those included in the Trust Estate, to any
person unless (a) it shall have received an Opinion of Counsel rendered by a law
firm generally recognized to be qualified to opine concerning the tax aspects of
asset securitization to the effect that such transaction will not have any
material adverse tax consequence to the Trust or any Certificateholder and (b)
such conveyance or transfer shall not violate the provisions of Section 3.16(b)
of the Indenture.
Section 4.06. Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or
lawsuits brought in connection with the collection of cash distributions due and
owing under the Mortgage Loans) and
16
the compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
cash distributions due and owing under the Mortgage Loans);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Statutory Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Bondholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Bondholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
and
(e) the appointment pursuant to the Indenture of a successor Bond
Registrar, Paying Agent or Indenture Trustee or pursuant to this Trust Agreement
of a successor Certificate Registrar or Certificate Paying Agent or the consent
to the assignment by the Bond Registrar, Paying Agent, Indenture Trustee,
Certificate Registrar or Certificate Paying Agent of its obligations under the
Indenture or this Trust Agreement, as applicable.
Section 4.07. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders to (a) remove the Master Servicer under the Servicing
Agreement pursuant to Sections 7.01 and 8.05 thereof or (b) except as expressly
provided in the Basic Documents, sell the Mortgage Loans after the termination
of the Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the
Certificateholders.
Section 4.08. Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the consent of the Bondholders and the Owner Trustee and
the delivery to the Owner Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the
Trust is insolvent. This paragraph shall survive for one year following
termination of this Trust Agreement.
Section 4.09. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
Section 4.10. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Trust Agreement
may be taken by the Holders of Certificates evidencing not less than a majority
Percentage Interest of the Certificates. Except as expressly provided herein,
any written notice of the Certificateholders delivered pursuant to this Trust
Agreement shall be effective if signed by Holders of Certificates evidencing not
less than a majority Percentage Interest of the Certificates at the time of the
delivery of such notice.
17
Section 4.11. Optional Redemption. Upon receipt of written instructions
provided to the Owner Trustee by the one Majority Certificateholder, if any, the
Owner Trustee shall cause the Issuer to redeem the Bonds in accordance with
Section 8.07 of the Indenture and shall provide all necessary notices on behalf
of the Issuer to effect the foregoing, provided that such Holder or Holders
shall deposit with the Indenture Trustee an amount equal to the aggregate
redemption price specified under Section 8.07 of the Indenture. The Owner
Trustee shall not have the power to exercise the right of the Issuer to redeem
the Bonds pursuant to Section 8.07 of the Indenture, except as provided above.
18
ARTICLE V
Application of Trust Funds
Section 5.01. Distributions. (a) On each Payment Date, the Certificate
Paying Agent shall distribute to the Certificateholders, on a pro rata basis
based on the Certificate Percentage Interests thereof, all funds on deposit in
the Certificate Distribution Account and available therefor (as provided in
Section 3.05 of the Indenture) for such Payment Date as reduced by any amount
owing to the Owner Trustee hereunder and any Expenses of the Trust remaining
unpaid.
(b) In the event that any withholding tax is imposed on the distributions
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to the Certificateholder in accordance with this
Section 5.01. The Certificate Paying Agent is hereby authorized and directed to
retain or cause to be retained from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate proceedings, and withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Certificate Paying Agent and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Certificate Paying Agent may in its sole discretion
withhold such amounts in accordance with this paragraph (b).
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Bondholders and the Bond Insurer.
Section 5.02. Method of Payment. Subject to Section 8.01(c), distributions
required to be made to Certificateholders on any Payment Date as provided in
Section 5.01 shall be made to each Certificateholder of record on the preceding
Record Date by wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Payment Date or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
Section 5.03. Tax Returns. The Indenture Trustee shall (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis using
the accrual method of accounting, (b) deliver (or cause to be delivered) to each
Bondholder and Certificateholder as may be required by the Code and applicable
Treasury Regulations, such information as may be required to enable each
Certificateholder to prepare its federal and state income tax returns, (c)
prepare and file or cause to be prepared and filed such tax returns relating to
the Trust as may be required by the Code and applicable Treasury Regulations
(making such elections as may from time to time be required or appropriate under
any applicable state or federal statutes, rules or regulations) and (d) collect
or cause to be collected any withholding tax as described in and in accordance
with Section 5.01 of this Trust Agreement with respect to income or
distributions to Certificateholders and prepare or cause to be prepared the
appropriate forms relating thereto; provided, however, that the Indenture
Trustee
19
shall not be required to compute the Issuer's gross income except to the extent
it can do so without unreasonable effort or expense based upon income statements
furnished to it and provided, further, that the Indenture Trustee shall not be
required to prepare and file partnership tax returns on behalf of the Issuer
unless the Indenture Trustee receives an opinion of counsel reasonably
satisfactory to it (which shall not be at the Indenture Trustee's expense, but
shall be at the expense of the Depositor or other party furnishing such opinion)
as to the necessity of such filings. The Owner Trustee shall sign all tax and
information returns prepared or caused to be prepared by the Indenture Trustee
pursuant to this Section 5.03 at the request of the Indenture Trustee, and in
doing so shall rely entirely upon, and shall have no liability for information
or calculations provided by, the Indenture Trustee.
Section 5.04. Statements to Certificateholders. On each Payment Date, the
Certificate Paying Agent shall make available to each Certificateholder the
statement or statements provided to the Owner Trustee and the Certificate Paying
Agent by the Indenture Trustee pursuant to Section 7.05 of the Indenture with
respect to such Payment Date; provided, however, that in the event that any
monthly statement is no longer available, at the request of any
Certificateholder, the Indenture Trustee will deliver such monthly statement to
such Certificateholder.
20
ARTICLE VI
Concerning the Owner Trustee
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Trust Agreement. The
Owner Trustee and the Certificate Paying Agent also agree to disburse all moneys
actually received by it constituting part of the Owner Trust Estate upon the
terms of the Basic Documents and this Trust Agreement. The Owner Trustee shall
not be answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct, gross negligence or
bad faith or grossly negligent failure to act or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.03 expressly
made by the Owner Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Certificateholders permitted under this Trust Agreement;
(b) No provision of this Trust Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights, duties or powers
hereunder or under any Basic Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(c) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Bonds;
(d) The Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Trust Agreement or for the due execution hereof
by the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, the Bonds, the Certificates, other than
the certificate of authentication on the Certificates, if executed by the Owner
Trustee and the Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Bondholder or to any Certificateholder, other than as
expressly provided for herein or expressly agreed to in the Basic Documents;
(e) The execution, delivery, authentication and performance by it of this
Trust Agreement will not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action with respect to, any governmental authority or agency;
(f) The Owner Trustee shall not be liable for the default or misconduct of
the Depositor, Indenture Trustee, Certificate Registrar or the Master Servicer
under any of the Basic Documents or otherwise and the Owner Trustee shall have
no obligation or liability to perform the obligations of the Trust under this
Trust Agreement or the Basic Documents that are required to be performed
21
by the Indenture Trustee under the Indenture or the Seller under the Mortgage
Loan Sale and Contribution Agreement; and
(g) The Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it or duties imposed by this Trust Agreement, or to
institute, conduct or defend any litigation under this Trust Agreement or
otherwise or in relation to this Trust Agreement or any Basic Document, at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Trust Agreement or in any
Basic Document shall not be construed as a duty, and the Owner Trustee shall not
be answerable for other than its gross negligence or willful misconduct in the
performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to
the Securityholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trust under the Basic Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Trust Agreement;
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Trust Agreement, and this Trust Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Trust Agreement on its behalf;
(c) Neither the execution nor the delivery by it of this Trust Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation governing the banking
or trust powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This Trust Agreement assuming due authorization, execution and
delivery by the Owner Trustee and the Depositor, constitutes a valid, legal and
binding obligation of the Owner Trustee, enforceable against it in accordance
with the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law;
22
(e) The Owner Trustee is not in default with respect to any order or
decree of any court or any order, regulation or demand of any Federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Owner Trustee or its properties or might have consequences
that would materially adversely affect its performance hereunder; and
(f) No litigation is pending or, to the best of the Owner Trustee's
knowledge, threatened against the Owner Trustee which would prohibit its
entering into this Trust Agreement or performing its obligations under this
Trust Agreement.
Section 6.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, note, or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder and in the
performance of its duties and obligations under this Trust Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees (including persons acting under a power of
attorney) if such persons have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Trust Agreement or
any Basic Document.
Section 6.05. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created Wilmington Trust Company
acts solely as Owner Trustee hereunder and not in its individual capacity, and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Trust Agreement or any Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates or Related
Documents. The recitals contained herein and in the Certificates (other than the
signatures of the Owner Trustee on the Certificates) shall be taken as the
statements of the Depositor, and the Owner Trustee assumes no responsibility for
the correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Bonds, or of any Related
23
Documents, or of MERS or the MERS(R) System. The Owner Trustee shall at no time
have any responsibility or liability with respect to the sufficiency of the
Owner Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Trust Agreement or the Bondholders under the
Indenture, including compliance by the Depositor or the Seller with any warranty
or representation made under any Basic Document or in any related document or
the accuracy of any such warranty or representation, or any action of the
Certificate Paying Agent, the Certificate Registrar or the Indenture Trustee
taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Certificates and Bonds. The Owner
Trustee in its individual or any other capacity may, subject to Section 3.05,
become the owner or pledgee of Certificates or Bonds and may deal with the
Depositor, the Seller, the Certificate Paying Agent, the Certificate Registrar
and the Indenture Trustee in transactions with the same rights as it would have
if it were not Owner Trustee.
Section 6.08. Payments from Owner Trust Estate. All payments to be made by
the Owner Trustee under this Trust Agreement or any of the Basic Documents to
which the Owner Trustee is a party shall be made only from the income and
proceeds of the Owner Trust Estate or from other amounts required to be provided
by the Certificateholders and only to the extent that the Owner Trust shall have
received income or proceeds from the Owner Trust Estate or the
Certificateholders to make such payments in accordance with the terms hereof.
Wilmington Trust Company, in its individual capacity, shall not be liable for
any amounts payable under this Trust Agreement or any of the Basic Documents to
which the Owner Trustee is a party.
Section 6.09. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Wilmington Trust Company nor
the Owner Trustee shall be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will, even after the
appointment of a co-trustee or separate trustee in accordance with Section 9.05
hereof, (i) require the consent or approval or authorization or order of or the
giving of notice to, or the registration with or the taking of any other action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware; (ii) result in any fee, tax or
other governmental charge under the laws of the State of Delaware becoming
payable by Wilmington Trust Company; or (iii) subject Wilmington Trust Company
to personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by Wilmington Trust Company or the Owner Trustee, as the case may
be, contemplated hereby.
Section 6.10. Liability of Certificate Registrar and Certificate Paying
Agent. All provisions affording protection or rights to or limiting the
liability of the Owner Trustee, including the provisions of this Agreement
permitting the Owner Trustee to resign, merge or consolidate, shall inure as
well to the Certificate Registrar and Certificate Paying Agent.
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ARTICLE VII
Compensation of Owner Trustee
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof, and the Owner Trustee shall be
reimbursed by the Depositor or the Master Servicer for its reasonable expenses
hereunder and under the Basic Documents, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as the Owner Trustee may reasonably employ in connection with the exercise and
performance of its rights and its duties hereunder and under the Basic
Documents. The amount of the Owner Trustee's Fee shall be paid by the Master
Servicer pursuant to Section 3.07(a)(xiii) of the Servicing Agreement and
Section 2.11 hereof, and all amounts owing to the Owner Trustee hereunder in
excess of such amount shall be paid pursuant to a separate side agreement or as
provided in Section 5.01 hereof.
Section 7.02. Indemnification. The Depositor shall indemnify, defend and
hold harmless the Owner Trustee, the Certificate Registrar and the Certificate
Paying Agent, solely in its capacity as Certificate Paying Agent, and their
respective successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at any
time be imposed on, incurred by, or asserted against any Indemnified Party in
any way relating to or arising out of this Trust Agreement, the Basic Documents,
the Owner Trust Estate, the administration of the Owner Trust Estate or the
action or inaction of the Owner Trustee, the Certificate Registrar and the
Certificate Paying Agent, solely in its capacity as Certificate Paying Agent,
hereunder, provided, that:
(i) the Depositor shall not be liable for or required to indemnify
an Indemnified Party from and against Expenses arising or resulting from
the Owner Trustee's, the Certificate Registrar's or the Certificate Paying
Agent's willful misconduct, gross negligence or bad faith or as a result
of any inaccuracy of a representation or warranty of the Owner Trustee
contained in Section 6.03 expressly made by the Owner Trustee;
(ii) with respect to any such claim, the Indemnified Party shall
have given the Depositor written notice thereof promptly after the
Indemnified Party shall have actual knowledge thereof,
(iii) while maintaining control over its own defense, the Depositor
shall consult with the Indemnified Party in preparing such defense; and
(iv) notwithstanding anything in this Agreement to the contrary, the
Depositor shall not be liable for settlement of any claim by an
Indemnified Party entered into without the prior consent of the Depositor
which consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee, the Certificate Registrar or the Certificate
Paying Agent or the termination of this
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Trust Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section 7.02, the Owner Trustee's, the
Certificate Registrar's or the Certificate Paying Agent's choice of legal
counsel, if other than the legal counsel retained by the Owner Trustee, the
Certificate Registrar or the Certificate Paying Agent in connection with the
execution and delivery of this Trust Agreement, shall be subject to the approval
of the Depositor, which approval shall not be unreasonably withheld. In
addition, upon written notice to the Owner Trustee, the Certificate Registrar or
the Certificate Paying Agent and with the consent of the Owner Trustee, the
Certificate Registrar or the Certificate Paying Agent which consent shall not be
unreasonably withheld, the Depositor has the right to assume the defense of any
claim, action or proceeding against the Owner Trustee, the Certificate Registrar
or the Certificate Paying Agent.
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ARTICLE VIII
Termination of Trust Agreement
Section 8.01. Termination of Trust Agreement. (a) This Trust Agreement
(other than Article VII) and the Trust shall terminate and be of no further
force or effect upon the earliest of (i) the final distribution of all moneys or
other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and this Trust Agreement, (ii) the distribution of all of
the assets of the Owner Trust Estate, in accordance with written instructions
provided to the Owner Trustee by the Majority Certificateholder, following the
optional redemption of the Bonds by the Issuer pursuant to Section 8.07 of the
Indenture; provided in each case that all amounts owing to the Bondholders and
the Bond Insurer to the extent payable from the Owner Trust Estate or proceeds
thereof have been paid in full and that all obligations under the Indenture have
been discharged. The bankruptcy, liquidation, dissolution, death or incapacity
of any Certificateholder shall not (x) operate to terminate this Trust Agreement
or the Trust or (y) entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or the Owner Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment Date
upon which Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Certificate Paying Agent by letter to Certificateholders
mailed within five Business Days of receipt of notice of the final payment on
the Bonds from the Indenture Trustee, stating (i) the Payment Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Certificate
Paying Agent therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Payment Agent therein specified.
The Certificate Paying Agent shall give such notice to the Owner Trustee and the
Certificate Registrar at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Certificate Paying
Agent shall cause to be distributed to Certificateholders amounts distributable
on such Payment Date pursuant to Section 5.01.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Certificate Paying Agent shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost
27
thereof shall be paid out of the funds and other assets that shall remain
subject to this Trust Agreement. Any funds remaining in the Certificate
Distribution Account after exhaustion of such remedies shall be distributed by
the Certificate Paying Agent to the Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(c) of the Statutory Trust Statute.
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ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Statutory Trust Statute; authorized 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 authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's or is
otherwise acceptable to the Rating Agencies. If such corporation shall publish
reports of condition at least annually pursuant to law or to the requirements of
the aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.01, the Owner
Trustee shall resign immediately in the manner and with the effect specified in
Section 9.02.
Section 9.02. Replacement of Owner Trustee. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30 days
prior written notice thereof to the Depositor. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and to the successor Owner Trustee. If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Master Servicer shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Indenture Trustee and to its predecessor Owner Trustee an instrument accepting
such appointment under this Trust Agreement, and thereupon the resignation or
removal of the predecessor Owner Trustee shall become effective, and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Trust Agreement, with like effect as if originally named
as Owner Trustee. The predecessor Owner Trustee
29
shall upon payment of its fees and expenses deliver to the successor Owner
Trustee all documents and statements and monies held by it under this Trust
Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, the Owner Trustee shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Bondholders and the Rating
Agencies.
Section 9.04. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or as
separate trustee or trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Owner Trust Estate or any
portion thereof
30
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) No trustee under this Trust Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Trust Agreement;
and
(c) The Owner Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
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ARTICLE X
Miscellaneous
Section 10.01. Amendments. (a) This Trust Agreement may be amended from
time to time by the parties hereto as specified in this Section, provided that
any amendment, except as provided in subparagraph (e) below, be accompanied by
an Opinion of Counsel addressed to the Owner Trustee, the Certificate Registrar
and the Certificate Paying Agent and obtained by the Master Servicer to the
effect that such amendment (i) complies with the provisions of this Section and
(ii) if IMH Assets Corp. is not the Majority Certificateholder, would not cause
the Trust to be subject to an entity level tax for federal income tax purposes.
(b) If the purpose of the amendment (as detailed therein) is to correct
any mistake, eliminate any inconsistency, cure any ambiguity or deal with any
matter not covered (i.e. to give effect to the intent of the parties and, if
applicable, to the expectations of the Holders), it shall not be necessary to
obtain the consent of any Holders, but the Owner Trustee, the Certificate
Registrar and the Certificate Paying Agent shall be furnished with (A) a letter
from the Rating Agencies that the amendment will not result in the downgrading
or withdrawal of the rating then assigned to any Bond or (B) an Opinion of
Counsel obtained by the Master Servicer to the effect that such action will not
adversely affect in any material respect the interests of any Holders.
(c) If the purpose of the amendment is to prevent the imposition of any
federal or state taxes at any time that any Security is outstanding, it shall
not be necessary to obtain the consent of any Holder, but the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent shall be furnished with
an Opinion of Counsel obtained by the Master Servicer that such amendment is
necessary or helpful to prevent the imposition of such taxes and is not
materially adverse to any Holder.
(d) If the purpose of the amendment is to add or eliminate or change any
provision of the Trust Agreement other than as contemplated in (b) and (c)
above, the amendment shall require (A) an Opinion of Counsel obtained by the
Master Servicer to the effect that such action will not adversely affect in any
material respect the interests of any Holders of the Securities and (B) either
(a) a letter from each of the Rating Agencies that the amendment will not result
in the downgrading or withdrawal of the rating then assigned to any Bond or (b)
the consent of Holders of Certificates evidencing a majority Percentage Interest
of the Certificates and the Indenture Trustee; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received that are required to be distributed on any Certificate without
the consent of the related Certificateholder, or (ii) reduce the aforesaid
percentage of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
outstanding.
(e) If the purpose of the amendment is to provide for the holding of any
of the Certificates in book-entry form, it shall require the consent of Holders
of all such Certificates then outstanding; provided, that the Opinion of Counsel
specified in subparagraph (a) above shall not be required.
32
(f) If the purpose of the amendment is to provide for the issuance of
additional certificates representing an interest in the Trust, it shall not be
necessary to obtain the consent of any Holder, but the Owner Trustee shall be
furnished with (A) an Opinion of Counsel obtained by the Master Servicer to the
effect that such action will not adversely affect in any material respect the
interests of any Holders and (B) a letter from each of the Rating Agencies that
the amendment will not result in the downgrading or withdrawal of the rating
then assigned to any Bonds.
(g) Promptly after the execution of any such amendment or consent, the
Master Servicer shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies. It shall not be necessary for the consent of
Certificateholders or the Indenture Trustee pursuant to this Section 10.01 to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Trust Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(h) In connection with the execution of any amendment to any agreement to
which the Trust is a party, other than this Trust Agreement, the Owner Trustee
shall be entitled to receive and conclusively rely upon an Opinion of Counsel to
the effect that such amendment is authorized or permitted by the documents
subject to such amendment and that all conditions precedent in the Basic
Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
(i) No amendment or agreement affecting the rights or duties of the
Certificate Registrar or the Certificate Paying Agent may be entered into
without the consent of the affected party.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State of the State of Delaware.
Section 10.02. No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate solely by virtue of their status as a Certificateholder. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial interest therein only in accordance with Articles V
and VIII. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
Section 10.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Trust Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders and, to the extent expressly
provided herein, the Indenture Trustee, the Bond Insurer and the Bondholders,
and nothing in this Trust Agreement (other than Section 2.07), whether express
or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Trust Agreement or any covenants, conditions or provisions
contained herein.
33
Section 10.04. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt, to the Owner Trustee at: Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890;
Attention: Corporate Trust Administration; to the Depositor at: IMH Assets
Corp., 1401 Dove Street, Newport Beach, California 92660; Attention: Richard
Johnson; to the Indenture Trustee, the Certificate Registrar and the Certificate
Paying Agent at the Corporate Trust Office of the Indenture Trustee, with a copy
to: Deutsche Bank National Trust Company, 1761 East St. Andrew Place, Santa Ana,
California 92705, Attention: Impac CMB Trust Series 2003-10; to Moody's at: 99
Church Street, New York, New York 10007; Attention: Residential Mortgage
Monitoring Unit; to Standard & Poor's at: 55 Water Street, New York, New York
10041; to Fitch Ratings at: One State Street Plaza, New York, New York 10004;
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Trust Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives such notice.
(c) A copy of any notice delivered to the Owner Trustee or the Trust shall
also be delivered to the Depositor.
Section 10.05. Severability. Any provision of this Trust Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Trust Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, each of the Depositor, the Owner Trustee and its successors, and
each Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
Section 10.08. No Petition. The Owner Trustee, by entering into this Trust
Agreement and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations to the
Certificates, the Bonds, this Trust Agreement or any of the Basic Documents.
This Section shall survive for one year following the termination of this Trust
Agreement.
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Section 10.09. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Seller, the Owner Trustee, the Indenture
Trustee, the Certificate Registrar, the Certificate Paying Agent or any
Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Trust
Agreement, the Certificates or the Basic Documents.
Section 10.10. Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Bond Insurer and their
respective successors and permitted assigns. Except as otherwise provided in
this Agreement, no other Person will have any right or obligation hereunder. The
Bond Insurer shall have the right to exercise all rights of the Class 1-A-2
Bondholders under this Agreement.
Section 10.11. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 10.12. GOVERNING LAW. THIS TRUST AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.13. Integration. This Trust Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
35
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
IMH ASSETS CORP.,
as Depositor
By: /s/ Richard J. Johnson
---------------------------------
Name: Richard J. Johnson
Title: Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Kathleen A. Pedelini
---------------------------------
Name: Kathleen A. Pedelini
Title: Financial Services Officer
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Certificate Registrar
and Certificate Paying Agent
By: /s/ James F. Noriega
---------------------------------
Name: James F. Noriega
Title: Associate
By: /s/ Ronaldo Reyes
---------------------------------
Name: Ronaldo Reyes
Title: Assistant Vice President
36
EXHIBIT A
Form of Certificate
[Face]
THIS CERTIFICATE IS SUBORDINATE TO THE BONDS AS DESCRIBED IN THE
INDENTURE.
[NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN OPINION OF COUNSEL AS DESCRIBED IN THE TRUST
AGREEMENT.]
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS
TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S. LAW.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.05 OF THE TRUST AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE
TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OR (ii) IF THIS CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION 4975 OF THE CODE
(OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY
SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE
OF CERTIFICATES 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 DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR OR
THE MASTER SERVICER TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO
A-1
THOSE UNDERTAKEN IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE
AN EXPENSE OF THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR OR THE
MASTER SERVICER.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
SELLER, THE CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT, THE DEPOSITOR,
THE MASTER SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST AGREEMENT OR
THE BASIC DOCUMENTS.
A-2
Certificate No. __ Certificate Percentage Interest of
this Certificate:__________%
Cut-off Date: September 1,
2003
Date of Amended and Restated First Payment Date:
Trust Agreement: October 27, 2003
September 29, 2003
Master Servicer: Certificate Interest Rate:
Impac Funding Corporation Weighted Average Pass-Through
Rate
IMPAC CMB TRUST Series 2003-10
Evidencing a fractional undivided equity interest in the Owner Trust
Estate, the property of which consists primarily of the Mortgage Loans in Impac
CMB Trust Series 2003-10 (the "Trust"), a Delaware statutory trust formed by IMH
ASSETS CORP., as depositor, pursuant to the Trust Agreement referred to below.
This certifies that ___________________ is the registered owner of the
Percentage Interest represented hereby.
The Trust was created pursuant to a Short Form Trust Agreement, dated as
of September [__], 2003, between the Depositor and Wilmington Trust Company, as
owner trustee (the "Owner Trustee", which term includes any successor entity
under the Trust Agreement) (the "Short Form Trust Agreement") as amended and
restated by the Amended and Restated Trust Agreement dated as of September 29,
2003 (as amended and supplemented from time to time, together with the Short
Form Trust Agreement, the "Trust Agreement") among the Depositor, the Owner
Trustee and Deutsche Bank National Trust Company, as certificate registrar and
certificate paying agent, a summary of certain of the pertinent provisions of
which is set forth hereinafter. This Certificate is issued under and is subject
to the terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of Trust Certificates,
Series 2003-10 (herein called the "Certificates") issued under the Trust
Agreement to which reference is hereby made for a statement of the respective
rights thereunder of the Depositor, the Owner Trustee and the Holders of the
Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement. The
Owner Trust Estate consists of the Mortgage Loans in the Impac CMB Trust Series
2003-10 and a Bond Insurance Policy. The rights of the Holders of the
Certificates are subordinated to the rights of the Holders of the Bonds, as set
forth in the Indenture.
A-3
There will be distributed on the 25th day of each month or, if such 25th
day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing on October 25, 2003, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding such Payment Date (the "Record Date"), such
Certificateholder's Percentage Interest in the amount to be distributed to
Certificateholders on such Payment Date.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Payment Account that have
been released from the Lien of the Indenture for payment hereunder and that
neither the Owner Trustee in its individual capacity nor the Depositor is
personally liable to the Certificateholders for any amount payable under this
Certificate or the Trust Agreement or, except as expressly provided in the Trust
Agreement, subject to any liability under the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Bondholders as described in the Indenture, dated as of September
29, 2003, between the Trust and Deutsche Bank National Trust Company, as
Indenture Trustee (the "Indenture").
The Depositor and each Certificateholder, by acceptance of a Certificate,
agree to treat, and to take no action inconsistent with the treatment of, the
Certificates for federal, state and local income tax purposes as an equity
interest in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against the
Depositor, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates, the
Bonds, the Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Certificate Paying Agent by wire transfer or check mailed to
the Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Certificate Paying Agent of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust, as
provided in Section 3.09 of the Trust Agreement.
Notwithstanding the above, the final distribution on this Certificate will
be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
in such notice.
No transfer, sale, pledge or other disposition of a Certificate shall be
made unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event of
any such
A-4
transfer, the Certificate Registrar or the Depositor shall prior to such
transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached to the Agreement as Exhibit C (or in
such form and substance reasonably satisfactory to the Certificate Registrar and
the Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer or the Depositor
and which investment letter states that, among other things, such transferee (1)
is a "qualified institutional buyer" as defined under Rule 144A, acting for its
own account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (2) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from said
Act and laws or is being made pursuant to said Act and laws, which Opinion of
Counsel shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Master Servicer or the Depositor and (b) the transferee executes
a representation letter, substantially in the form of Exhibit D to the
Agreement, and the transferor executes a representation letter, substantially in
the form of Exhibit E to the Agreement, each acceptable to and in form and
substance satisfactory to the Certificate Registrar and the Depositor certifying
the facts surrounding such transfer, which representation letters shall not be
an expense of the Trust, the Owner Trustee, the Certificate Registrar, the
Master Servicer or the Depositor and (B) the Certificate of Non-Foreign Status
(in substantially the form attached to the Agreement as Exhibit D) acceptable to
and in form and substance reasonably satisfactory to the Certificate Registrar
and the Depositor, which certificate shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar or the Depositor. The Holder of a
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trust, the Owner Trustee, the Indenture Trustee, the Certificate
Paying Agent, the Certificate Registrar, the Master Servicer and the Depositor
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.
No transfer of Certificates or any interest therein shall be made to any
Person unless the Depositor, the Owner Trustee, the Certificate Registrar and
the Master Servicer are provided with an Opinion of Counsel which establishes to
the satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar
and the Master Servicer that the purchase of Certificates 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 Depositor, the
Owner Trustee, the Certificate Registrar or the Master Servicer to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Trust
Agreement, which Opinion of Counsel shall not be an expense of the Depositor,
the Owner Trustee, the Certificate Registrar or the Master Servicer. In lieu of
such Opinion of Counsel, a Person may provide a certification in the form of
Exhibit G to the Agreement, which the Depositor, the Owner Trustee, the
Certificate Registrar and the Master Servicer may rely upon without further
inquiry or investigation. Neither an Opinion of Counsel nor a certification will
be required in connection with the initial transfer of any such Certificate by
the Depositor to an affiliate of the Depositor (in which case, the Depositor or
any affiliate thereof shall have deemed to have represented that such affiliate
is not a Plan or a Person investing Plan Assets of any Plan) and the Owner
Trustee shall be entitled to conclusively rely upon a representation (which,
upon the request of the Owner Trustee, shall be a written representation) from
the Depositor of the status of such transferee as an affiliate of the Depositor.
A-5
No offer, sale, transfer, pledge, hypothecation or other disposition
(including any pledge, sale or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any transferee unless,
prior to such disposition, the proposed transferor delivers to the Owner Trustee
an Opinion of Counsel, rendered by a law firm generally recognized to be
qualified to opine concerning the tax aspects of asset securitization, to the
effect that such transfer (including any disposition permitted following any
default under any pledge or repurchase transaction) will not cause the Trust to
be (i) treated as an association taxable as a corporation for federal income tax
and relevant state income and franchise tax purposes, (ii) taxable as a taxable
mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a
"publicly traded partnership" as defined in Treasury Regulation section 1.7704-1
for federal income tax purposes and relevant state franchise or income tax
purposes.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, or an authenticating agent by
manual signature, this Certificate shall not entitle the Holder hereof to any
benefit under the Trust Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: September 29, 2003 By:
---------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
----------------------------------------
Authorized Signatory
or ,
-----------------------------------------
as Authenticating Agent of the Trust
By:
---------------------------------------
Authorized Signatory
A-7
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in, the
Depositor, the Seller, the Master Servicer, the Indenture Trustee, the
Certificate Paying Agent, the Certificate Registrar, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections and recoveries with respect to the Mortgage
Loans, all as more specifically set forth herein and in the Trust Agreement. A
copy of the Trust Agreement may be examined by any Certificateholder upon
written request during normal business hours at the principal office of the
Depositor and at such other places, if any, designated by the Depositor.
The Trust Agreement permits the amendment thereof as specified below,
provided that any amendment be accompanied by an Opinion of Counsel to the Owner
Trustee to the effect that such amendment complies with the provisions of the
Trust Agreement and, if IMH Assets Corp. was not the Majority Certificateholder,
would not cause the Trust to be subject to an entity level tax. If the purpose
of the amendment is to correct any mistake, eliminate any inconsistency, cure
any ambiguity or deal with any matter not covered, it shall not be necessary to
obtain the consent of any Holder, but the Owner Trustee shall be furnished with
a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Bond or the rating
then assigned to any Bond. If the purpose of the amendment is to prevent the
imposition of any federal or state taxes at any time that any Security is
outstanding, it shall not be necessary to obtain the consent of the any Holder,
but the Owner Trustee shall be furnished with an Opinion of Counsel that such
amendment is necessary or helpful to prevent the imposition of such taxes and is
not materially adverse to any Holder. If the purpose of the amendment is to add
or eliminate or change any provision of the Trust Agreement, other than as
specified in the preceding two sentences, the amendment shall require either (a)
a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Bond or (b) the
consent of Holders of the Certificates evidencing a majority of the Percentage
Interests of the Certificates and the Indenture Trustee; provided, however, that
no such amendment shall (i) reduce in any manner the amount of, or delay the
time of, payments received that are required to be distributed on any
Certificate without the consent of the related Certificateholder, or (ii) reduce
the aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all such
Certificates then outstanding.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Trust, as provided in the Trust Agreement, accompanied by a written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is Deutsche Bank National Trust Company.
A-8
Except as provided in the Trust Agreement, the Certificates are issuable
only in a minimum Certificate Percentage Interest of 10%. As provided in the
Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Owner Trustee, the Certificate Paying Agent, the Certificate Registrar
and any agent of the Owner Trustee, the Certificate Paying Agent, or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Paying Agent, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate as and when provided in accordance
with the terms of the Trust Agreement.
A-9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
_________________________________*/
Signature Guaranteed:
_____________________*/
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-10
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Certificate Paying Agent:
Distribution shall be made by wire transfer in immediately available funds
to _______________________________________________ for the account of
_____________________________________________, account number
____________________________, or, if mailed by check, to _______________.
Applicable statements should be mailed to ____________________.
______________________________
Signature of assignee or agent
(for authorization of wire
transfer only)
A-11
EXHIBIT B
CERTIFICATE OF TRUST OF
Impac CMB Trust Series 2003-10
THIS Certificate of Trust of Impac CMB Trust Series 2003-10 (the
"Trust"), dated September [__], 2003, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to form a
statutory trust under the Delaware Statutory Trust Act (12 Del. Code, ss. 3801
et seq.).
1. Name. The name of the statutory trust formed hereby is Impac CMB
Trust Series 2003-10.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
Wilmington Trust Company,
not in its individual capacity but
solely as owner trustee under a Trust
Agreement dated as of September [__], 2003
By:
_____________________
Name:
Title:
B-1
EXHIBIT C
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
The undersigned seller, as registered holder (the "Seller"), intends
to transfer the Rule 144A Securities described above to the undersigned buyer
(the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with, the
Owner Trustee and the Depositor (as defined in the Amended and Restated Trust
Agreement (the "Agreement"), dated as of September 29, 2003, among IMH Assets
Corp., as Depositor, Wilmington Trust Company, as Owner Trustee, and Deutsche
Bank National Trust Company, as Certificate Registrar and Certificate Paying
Agent) pursuant to Section 3.05 of the Agreement and Deutsche Bank National
Trust Company, as indenture trustee, as follows:
a. The Buyer understands that the Rule 144A Securities have
not been registered under the 1933 Act or the securities laws of any
state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Rule 144A Securities.
C-1
c. The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the
Indenture Trustee, the Owner Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security from, or otherwise
approached or negotiated with respect to the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security with,
any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Rule 144A Securities under the
1933 Act or that would render the disposition of the Rule 144A Securities
a violation of Section 5 of the 1933 Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize any
person to act, in such manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex
2. The Buyer is aware that the sale to it is being made in reliance on
Rule 144A. The Buyer is acquiring the Rule 144A Securities for its own
account or the accounts of other qualified institutional buyers,
understands that such Rule 144A Securities 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 1933 Act.
[3. The Buyer warrants and represents to, and covenants with, the
Seller, the Indenture Trustee, Owner Trustee, Master Servicer and the Depositor
that either (1) the Buyer is (A) not an employee benefit plan (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")), or a plan (within the meaning of Section 4975(e)(1) of
the Internal Revenue Code of 1986 ("Code")), which (in either case) is subject
to ERISA or Section 4975 of the Code (both a "Plan"), and (B) is not directly or
indirectly purchasing the Rule 144A Securities on behalf of, as investment
manager of, as named fiduciary of, as trustee of, or with "plan assets" of a
Plan, or (2) the Buyer understands that registration of transfer of any Rule
144A Securities to any Plan, or to any Person acting on behalf of any Plan, will
not be made unless such Plan delivers an opinion of its counsel, addressed and
satisfactory to the Certificate Registrar, the Owner Trustee, the Master
Servicer and the Depositor, to the effect that the purchase and holding of the
Rule 144A Securities by, on behalf of or with "plan assets" of any Plan is
permissible under applicable law, would not constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code, and would not subject the
Depositor, the Owner Trustee, the Certificate Registrar or the Master Servicer
to any obligation or liability (including liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in the Agreement, which
Opinion of Counsel shall not be an expense of the Depositor, the Owner Trustee,
the Certificate Registrar or the Master Servicer.]
C-3
4. This document may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as of
the date set forth below.
______________________________________ _________________________________
Print Name of Seller Print Name of Buyer
By: __________________________________ By: _____________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. __________________________________ No. _____________________________
Date: ________________________________ Date: ___________________________
C-3
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $_______________(1) in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and (ii) the
Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, 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.
___ Savings and Loan. The Buyer (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 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.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by
- ----------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-5
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a State or
territory or the District of Columbia.
___ State or Local Plan. The Buyer 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 Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
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, or (b) employee
benefit plans within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, but is not a trust fund that
includes as participants individual retirement accounts or H.R. 10
plans.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit Bonds 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.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
C-6
_____ ____ Will the Buyer be purchasing the Rule 144A Securities only for
Yes No the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that,
in connection with any purchase of securities sold to the Buyer for the account
of a third party (including any separate account) in reliance on Rule 144A, the
Buyer will only purchase for the account of a third party that at the time is a
"qualified institutional buyer" within the meaning of Rule 144A. In addition,
the Buyer agrees that the Buyer will not purchase securities for a third party
unless the Buyer has obtained a current representation letter from such third
party or taken other appropriate steps contemplated by Rule 144A to conclude
that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer 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 Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification as of the date of such purchase.
__________________________________
Print Name of Buyer
By: ______________________________
Name:
Title:
Date: ____________________________
C-6
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer'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 Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
____ The Buyer owned $__________________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
____ The Buyer 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 Buyer'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).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit Bonds 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.
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made are relying and will continue to
rely on the statements made herein
C-7
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
__________________________________
Print Name of Buyer
By: ______________________________
Name:
Title:
IF AN ADVISER:
__________________________________
Print Name of Buyer
Date: ____________________________
C-8
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status ("certificate") is delivered
pursuant to Section 3.03 of the Amended and Restated Trust Agreement, dated as
of September 29, 2003 (the "Trust Agreement"), among IMH Assets Corp., as
Depositor, Wilmington Trust Company, as Owner Trustee and Deutsche Bank National
Trust Company, as Certificate Registrar and Certificate Paying Agent, in
connection with the acquisition of, transfer to or possession by the
undersigned, whether as beneficial owner for U.S. federal income tax purposes
(the "Beneficial Owner"), or nominee on behalf of the Beneficial Owner of the
Certificates, Series 2003-10 (the "Certificate"). Capitalized terms used but not
defined in this certificate have the respective meanings given them in the Trust
Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee), and in
all cases sign and otherwise complete Part III.
In addition, each holder shall submit with the Certificate an IRS Form W-9
relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do not
apply in respect of the Certificate held by the undersigned, the undersigned
hereby certifies:
Part I - Complete Either A or B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is ) not a non-resident alien
for purposes of U.S. income taxation;
2. My (The Beneficial Owner's) name and home address are:
___________________
___________________
___________________; and
3. My (The Beneficial Owner's) U.S. taxpayer identification
number (Social Security Number) is
B. Corporate, Partnership or Other Entity as Beneficial Owner
D-1
1. ______________ (Name of the Beneficial Owner) is not a
foreign corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined in the
Code and Treasury Regulations;
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is
_________________; and
3. The Beneficial Owner's U.S. employer identification
number is ____________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
_________ an IRS Form W-9
_________ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trust at least thirty (30) days prior to the date that the
form relied upon becomes obsolete, and (ii) in connection with change in
Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Trust promptly after such change.
Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
D-2
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change in
the information provided above, and, if applicable, I further declare that I
have the authority* to sign this document.
_____________________
Name
_____________________
Title (if applicable)
_____________________
Signature and Date
*Note: If signed pursuant to a power of attorney, the power of attorney must
accompany this certificate.
D-3
EXHIBIT E
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington Trust Company, as Owner Trustee
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
Deutsche Bank National Trust Company
1761 East St. Andrews Place
Santa Ana, California 92705
Re: Impac CMB Trust Series 2003-10 Trust Certificates, Series
2003-10 (the "Certificates")
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned Certificates, we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3)
E-1
the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Trust Agreement.
Very truly yours,
[TRANSFEREE]
By:
------------------------------
Authorized Officer
E-2
EXHIBIT F
TRANSFEROR CERTIFICATE
Wilmington Trust Company, as Owner Trustee
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
Deutsche Bank National Trust Company
1761 East St. Andrews Place
Santa Ana, California 92705
Re: Proposed Transfer of Trust Certificates, Impac CMB Trust Series
2003-10
Gentlemen:
This certification is being made by ____________________ (the
"Transferor") in connection with the proposed Transfer to _____________________
(the "Transferee") of a trust certificate (the "Trust Certificate") representing
___% fractional undivided interest in Impac CMB Trust Series 2003-10 (the
"Trust") created pursuant to a Trust Agreement, dated as of September 19, 2003
(such agreement, as amended by the Amended and Restated Trust Agreement dated
September 29, 2003, being referred to herein as the "Trust Agreement") among IMH
Assets Corp. (the "Company"), Wilmington Trust Company, as Owner Trustee (the
"Owner Trustee") and Deutsche Bank National Trust Company, as certificate
registrar and certificate paying agent (the "Certificate Registrar"). Initially
capitalized terms used but not defined herein have the meanings assigned to them
in the Deposit Trust Agreement. The Transferor hereby certifies, represents and
warrants to, and covenants with, the Company, the Owner Trustee and the
Certificate Registrar that:
Neither the Transferor nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Trust Certificate, any
interest in any Trust Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Trust Certificate, any interest in any
Trust Certificate or any other similar security from any person in any manner,
(c) has otherwise approached or negotiated with respect to any Trust
Certificate, any interest in any Trust Certificate or any other similar security
with any person in any manner, (d) has made any general solicitation by means of
general advertising or in any other manner, or (e) has taken any other action,
that (as to any of (a) through (e) above) would constitute a distribution of the
Trust Certificates under the Securities Act of 1933 (the "Act"), that would
render the disposition of any Trust Certificate a violation of Section 5 of the
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Transferor will not act in any manner set
forth in the foregoing sentence with respect to any Trust Certificate. The
Transferor has not and will not sell or otherwise transfer any of the Trust
Certificates, except in compliance with the provisions of the Trust Agreement.
F-1
Date: _________________ _____________________________
Name of Transferor
_____________________________
Signature
_____________________________
Name
_____________________________
Title
F-2
EXHIBIT G
[DATE]
Wilmington Trust Company, as Owner Trustee
1100 North Market Street
Rodney Square North
Wilmington, Delaware 19890
Deutsche Bank National Trust Company
1761 East St. Andrews Place
Santa Ana, California 92705
Re: Proposed Transfer of Trust Certificates,
Impac CMB Trust Series 2003-10 (the "Certificates")
Gentlemen:
This certification is being made by _________________ (the "Transferee")
in connection with the proposed Transfer by (the "Transferor") of a trust
certificate (the "Trust Certificate") representing __% fractional undivided
interest in Impac CMB Trust Series 2003-10 (the "Trust") created pursuant to a
Trust Agreement, dated as of September 19, 2003 (such agreement, as amended by
the Amended and Restated Trust Agreement dated September 29, 2003, being
referred to herein as the "Trust Agreement") among IMH Assets Corp. (the
"Company"), Wilmington Trust Company, as Owner Trustee (the "Owner Trustee") and
Deutsche Bank National Trust Company, as certificate registrar and certificate
paying agent (the "Certificate Registrar"). Initially capitalized terms used but
not defined herein have the meanings assigned to them in the Trust Agreement.
The Transferor hereby certifies, represents and warrants to, and covenants with,
the Company, the Owner Trustee and the Certificate Registrar that:
(i) either (a) or (b) is satisfied, as marked below:
___ a. The Transferor 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 Certificates 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. The Transferor is an 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
Certificates 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 and
will provide the Depositor, the Owner Trustee, the Certificate Registrar
and the Master Servicer with an
G-1
Opinion of Counsel, satisfactory to the Depositor, the Owner
Trustee, the Certificate Registrar and the Master Servicer, to the
effect that the purchase and holding of a Certificate by or on
behalf of the Transferor is permissible under applicable law, will
not constitute or result in a prohibited transaction under Section
406 of ERISA or Section 4975 of the Code (or comparable provisions
of any subsequent enactments) and will not subject the Depositor,
the Owner Trustee, the Certificate Registrar or the Master Servicer
to any obligation or liability (including liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the
Trust Agreement, which opinion of counsel shall not be an expense of
the Depositor, the Owner Trustee, the Certificate Registrar or the
Master Servicer; and
(ii) the Transferor is familiar with the prohibited transaction
restrictions and fiduciary responsibility requirements of Sections
406 and 407 of ERISA and Section 4975 of the Code and understands
that each of the parties to which this certification is made is
relying and will continue to rely on the statements made in this
paragraph.
Very truly yours,
By: _____________________________
Name: _____________________________
Title: _____________________________
G-2