Exhibit 3.1
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OWNER TRUST AGREEMENT
dated as of August 1, 1998
between
IMH ASSETS CORP.
as Company,
and
WILMINGTON TRUST COMPANY
as Owner Trustee
----------------------
Impac CMB Trust 1998-C1
Commercial Mortgage Loan Certificates of Beneficial Ownership
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TABLE OF CONTENTS
Page
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PRELIMINARY STATEMENT
ARTICLE I
DEFINITIONS
Accrual Period.......................................................2
Accrued Certificate Interest.........................................2
Affiliate............................................................2
Aggregate Certificate Principal Balance..............................2
Agreement............................................................2
Available Amount.....................................................2
Bank ............................................................2
Bankruptcy Code......................................................3
Bond Account.........................................................3
Bond Register........................................................3
Bondholder...........................................................3
Bond ............................................................3
Business Day.........................................................3
Business Trust Statute...............................................3
Certificate Account..................................................3
Certificate of Trust.................................................3
Certificate Register.................................................3
Certificate Registrar................................................3
Certificateholder....................................................3
Certificateholder Funds..............................................3
Class ............................................................4
Class P Certificate..................................................4
Class R Certificate..................................................4
Class XS Certificate.................................................4
Closing Date.........................................................4
Code ............................................................4
Collection Period....................................................4
Corporate Trust Office...............................................4
Cut-off Date.........................................................4
Company ............................................................4
Eligible Trustee.....................................................4
ERISA ............................................................5
Extraordinary Expense................................................5
Governmental Authority...............................................5
Indenture............................................................5
Indenture Default....................................................5
Independent..........................................................5
IRS ............................................................5
Lien ............................................................5
1933 Act ............................................................5
1934 Act ............................................................5
1940 Act ............................................................5
Officers' Certificate................................................5
Operative Agreements.................................................6
Opinion of Counsel...................................................6
Owner Trust..........................................................6
Owner Trust Certificate..............................................6
Owner Trustee........................................................6
Owner Trustee Fee....................................................6
Owner Trustee Report.................................................6
Percentage Interest..................................................6
Person ............................................................6
Principal Prepayment.................................................6
QRS ............................................................6
Record Date..........................................................6
REIT ............................................................6
REO Account..........................................................7
Responsible Officer..................................................7
Servicer Event of Default............................................7
Servicing Agreement..................................................7
Transfer ............................................................7
Trust Estate.........................................................7
Uniform Commercial Code..............................................7
Voting Rights........................................................7
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF BUSINESS TRUST BY THE BANK
SECTION 2.1 DECLARATION OF BUSINESS TRUST BY THE BANK..............................................8
SECTION 2.2 TRANSFER OF TRUST ESTATE TO THE OWNER TRUSTEE; CONVEYANCE OF THE
MORTGAGE LOANS.........................................................................8
SECTION 2.3 AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS.....................................9
SECTION 2.4 EXECUTION AND DELIVERY OF OWNER TRUST CERTIFICATES....................................10
SECTION 2.5 ACTIVITIES OF THE OWNER TRUST.........................................................11
ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 ESTABLISHMENT OF CERTIFICATE ACCOUNT; DEPOSITS IN CERTIFICATE
ACCOUNT...............................................................................13
SECTION 3.2 PERMITTED WITHDRAWALS FROM THE CERTIFICATE ACCOUNT....................................13
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE OWNER TRUST ESTATE
SECTION 4.1 DISTRIBUTION OF PAYMENTS..............................................................15
SECTION 4.2 PAYMENTS..............................................................................15
SECTION 4.3 STATEMENTS TO CERTIFICATEHOLDERS......................................................17
SECTION 4.4 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION.......................................18
SECTION 4.5 COMPLIANCE WITH WITHHOLDING REQUIREMENTS..............................................19
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 NOTICE OF CERTAIN EVENTS; ACTION BY THE OWNER TRUSTEE.................................21
SECTION 5.2 DISTRIBUTION OF REPORTS...............................................................21
SECTION 5.3 ACTION REQUIRED ONLY IF OWNER TRUSTEE IS INDEMNIFIED..................................21
SECTION 5.4 NO DUTIES EXCEPT AS SPECIFIED IN AGREEMENT OR INSTRUCTIONS............................22
SECTION 5.5 NOTICE TO THE RATING AGENCIES AND OTHERS..............................................22
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 ACCEPTANCE OF OWNER TRUST AND DUTIES..................................................24
SECTION 6.2 LIMITED REPRESENTATIONS OR WARRANTIES OF THE OWNER TRUSTEE
.....................................................................................24
SECTION 6.3 TRUST ACCOUNTS........................................................................25
SECTION 6.4 RELIANCE; ADVICE OF COUNSEL...........................................................25
SECTION 6.5 NOT ACTING IN INDIVIDUAL CAPACITY.....................................................26
SECTION 6.6 BOOKS AND RECORDS; TAX ELECTION.......................................................26
ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION
OF THE OWNER TRUSTEE
SECTION 7.1 COMPENSATION OF THE OWNER TRUSTEE.....................................................27
SECTION 7.2 REIMBURSEMENT AND INDEMNIFICATION OF THE OWNER TRUSTEE................................27
SECTION 7.3 NON-PAYMENT OF FEES AND EXPENSES......................................................28
ARTICLE VIII
TERMINATION OF OWNER TRUST AGREEMENT
SECTION 8.1 TERMINATION...........................................................................29
SECTION 8.2 FURTHER ASSURANCES BY THE OWNER TRUSTEE UPON TERMINATION..............................29
SECTION 8.3 INSOLVENCY OF A CERTIFICATEHOLDER.....................................................29
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 RESIGNATION OF THE OWNER TRUSTEE; APPOINTMENT OF SUCCESSOR
.....................................................................................30
SECTION 9.2 CO-TRUSTEES AND SEPARATE TRUSTEES.....................................................31
SECTION 9.3 NOTICE................................................................................31
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 SUPPLEMENTS AND AMENDMENTS............................................................32
SECTION 10.2 LIMITATION ON AMENDMENTS..............................................................32
SECTION 10.3 ADDITIONAL AMENDMENT PROVISIONS.......................................................32
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY
SECTION 11.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................................34
SECTION 11.3 ACCRUED INTEREST, ETC.................................................................35
SECTION 11.4 ADDITIONAL COVENANTS OF THE COMPANY...................................................35
SECTION 11.5 LIMITATION ON LIABILITY OF THE COMPANY................................................35
ARTICLE XII
TRANSFER OF OWNER TRUST CERTIFICATES
SECTION 12.1 REGISTRATION OF TRANSFER AND EXCHANGE OF OWNER TRUST CERTIFICATES
SECTION 12.2 MUTILATED, DESTROYED, LOST OR STOLEN OWNER TRUST CERTIFICATES
.....................................................................................40
SECTION 12.3 PERSONS DEEMED OWNERS.................................................................40
SECTION 12.4 ACCESS TO NAMES AND ADDRESSES.........................................................40
SECTION 12.5 ACTIONS OF CERTIFICATEHOLDERS.........................................................41
SECTION 12.6 TRANSFEREE'S AGREEMENT................................................................41
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NO LEGAL TITLE TO TRUST ESTATE IN CERTIFICATEHOLDERS..................................42
SECTION 13.2 ACTION BY THE OWNER TRUSTEE IS BINDING................................................42
SECTION 13.3 LIMITATION ON RIGHTS OF OTHERS........................................................42
SECTION 13.4 NOTICES...............................................................................42
SECTION 13.5 SEVERABILITY..........................................................................43
SECTION 13.6 LIMITATION ON THE COMPANY'S LIABILITY.................................................43
SECTION 13.7 SEPARATE COUNTERPARTS.................................................................43
SECTION 13.8 SUCCESSORS AND ASSIGNS................................................................43
SECTION 13.9 HEADINGS..............................................................................43
SECTION 13.10 GOVERNING LAW.........................................................................43
SECTION 13.11 ADMINISTRATION OF OWNER TRUST.........................................................43
SECTION 13.12 PERFORMANCE BY THE COMPANY OR MANAGER.................................................43
SECTION 13.13 NO IMPLIED WAIVER.....................................................................43
SECTION 13.14 THIRD PARTY BENEFICIARY...............................................................44
SECTION 13.15 REFERENCES............................................................................44
EXHIBITS
Exhibit A-1 Form of Class P Certificate
Exhibit A-2 Form of Class XS Certificate
Exhibit A-3 Form of Class R Certificate
Exhibit B Form of Owner Trustee Report
Exhibit C-1 Form I of Transferor Certificate for Transfers of
Owner Trust Certificates to Qualified Institutional Buyers
Exhibit C-2 Form II of Transferor Certificate for Transfers of
Owner Trust Certificates to Eligible Purchasers
Exhibit D-1 Form I of Transferee Certificate for Transfers of
Owner Trust Certificates to Qualified Institutional Buyers
Exhibit D-2 Form II of the Transferee Letter for Transfers of
Class P and Class XS Certificates to Institutional
Accredited Investors
Exhibit D-3 Form of ERISA Certificate for Transferees of Owner Trust Certificates
Exhibit D-4 Form of Tax Certificate for Transferees of Owner Trust Certificates
Exhibit E-1 Form of Certificate Regarding Information Requested by Certificateholder
Exhibit E-2 Form of Certificate Regarding Information Requested by Prospective Purchaser
This OWNER TRUST AGREEMENT, dated as of August 1, 1998, is
made between IMH Assets Corp. as Company and Wilmington Trust Company a Delaware
bank and trust company as Owner Trustee.
PRELIMINARY STATEMENT
The Company desires to form the trust to be created hereby and
designated as the Impac CMB Trust 1998-C1 (the "Owner Trust") for the purpose of
(i) accepting from the Company, and holding for the benefit of the Holders of
the Owner Trust Certificates, the Trust Estate (ii) issuing a series of bonds
(the "Bonds") in nine Classes with the designations specified in the Indenture
and secured by, among other things, a first priority security interest in the
Mortgage Loans pursuant to the Indenture, (iii) issuing the Owner Trust
Certificates in three Classes designated as the "Class P Certificates," the
"Class XS Certificates" and the "Class R Certificates," respectively, and
evidencing the entire beneficial ownership interest in the Owner Trust, (iv)
consummating certain transactions contemplated by, and performing its
obligations under, the Operative Agreements to which it is a party, and (v)
engaging in certain activities incidental to the foregoing.
Wilmington Trust Company, a Delaware bank and trust company,
is willing to act as trustee hereunder (in its individual capacity, the "Bank",
and solely in its capacity as trustee hereunder, with its successors in interest
in such capacity and its permitted assigns, the "Owner Trustee") and to accept
the trusts created hereby.
In consideration of the premises and of the mutual agreements
herein contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used herein (including the Preliminary
Statement) and not otherwise defined, unless the context otherwise requires,
shall have the meanings set forth below or, if not set forth below, then in the
Servicing Agreement and the Indenture.
"Accrual Period" shall mean, with respect to any Payment Date,
the period commencing on the first day of the calendar month preceding the month
in which such Payment Date occurs and ending on the last day of such calendar
month.
"Accrued Certificate Interest" shall mean, with respect to the
Class P Certificates for any Payment Date, interest accrued during the related
Accrual Period (calculated on the basis of a 360-day year consisting of twelve
30-day months) at [6.5]% per annum on the Aggregate Certificate Principal
Balance of the Class P Certificates immediately prior to such Payment Date and,
with respect to the Class XS Certificates for any Payment Date, the excess, if
any, of (a) the aggregate of all payments received on the Mortgage Loans during
the related Collection Period that are allocable to interest thereon over (b)
the sum of (i) all amounts paid to the Bondholders in respect of interest on the
Bonds on such Payment Date, (ii) all Accrued Certificate Interest distributed to
the Holders of the Class P Certificates on such Payment Date and (iii) any
Extraordinary Expenses incurred during such Collection Period. The Holders of
the Class R Certificates shall not be entitled to Accrued Certificate Interest.
"Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the meaning of "control".
"Aggregate Certificate Principal Balance" shall mean, with
respect to the Class P Certificates, as of any date of determination, the
excess, if any, of the then aggregate Stated Principal Balance of the Mortgage
Loans over the aggregate Bond Principal Balance of the Bonds that are
Outstanding on such date of determination.
"Agreement" shall mean this Owner Trust Agreement, as the same
may be amended or supplemented from time to time.
"Available Amount" shall have the meaning assigned to such
term in the Indenture.
"Bank" shall have the meaning assigned to that term in the
Preliminary Statement hereto.
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"Bankruptcy Code" shall mean the Bankruptcy Code of 1978,
Title 11 of the United States Code, as amended from time to time.
"Bond Account" shall mean the segregated account established
in the name of the Indenture Trustee pursuant to Section 2.09 of the Indenture.
"Bond Register" shall mean the register of Bonds maintained
pursuant to the Indenture.
"Bondholder" shall mean those persons or entities holding the
Bonds from time to time as shown on the Bond Register maintained under the
Indenture.
"Bond" shall have the meaning assigned thereto in the
Indenture.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions are authorized or obligated by law
or executive order to remain closed in New York, New York, Wilmington, Delaware
or in any other city in which is located the Primary Servicing Office of the
Master Servicer or the Special Servicer or the Corporate Trust Office of the
Owner Trustee or the Indenture Trustee.
"Business Trust Statute" shall have the meaning assigned to
that term in Section 2.1.
"Certificate Account" shall mean the segregated trust account
established in the name of the Owner Trustee pursuant to Section 3.1 of this
Agreement.
"Certificate of Trust" shall have the meaning assigned to that
term in Section 2.1.
"Certificate Register" and "Certificate Registrar" shall mean
the register of Owner Trust Certificates maintained, and the registrar
appointed, respectively, pursuant to Section 12.1.
"Certificateholder" or "Holder" shall mean, with respect to
any Owner Trust Certificate, the Person in whose name such Owner Trust
Certificate is registered on the Certificate Register, except that a Person
which is not a REIT or a QRS shall not be a holder of an Owner Trust Certificate
for any purpose hereof.
"Certificateholder Funds" shall mean, with respect to any
Payment Date, an amount equal to the sum of (i) all amounts on deposit in the
Certificate Account as of the commencement of business on such Payment Date and
(ii) the portion of the Available Amount for such Payment Date remaining after
all payments required to be made to the Bondholders on such Payment Date have
been made, net of (x) any amounts payable or reimbursable to the Owner Trustee
from the Certificate Account pursuant to Section 7.2 hereof and (y) any amounts
deposited in the Certificate Account in error.
3
"Class" shall mean all of the Owner Trust Certificates or
Bonds, as the case may be, bearing the same alphabetical and, if applicable,
numerical designation.
"Class P Certificate" shall mean any of the Owner Trust
Certificates with a "Class P" designation on the face thereof, executed by the
Owner Trustee and authenticated by the Certificate Registrar substantially in
the form of Exhibit A-1 attached hereto.
"Class R Certificate" shall mean any of the Owner Trust
Certificates with a "Class R" designation on the face thereof, executed by the
Owner Trustee and authenticated by the Certificate Registrar substantially in
the form of Exhibit A-3 attached hereto.
"Class XS Certificate" shall mean any of the Owner Trust
Certificates with a "Class XS" designation on the face thereof, executed by the
Owner Trustee and authenticated by the Certificate Registrar substantially in
the form of Exhibit A-2 attached hereto.
"Closing Date" shall mean on or about August 21, 1998.
"Code" shall mean the Internal Revenue Code of 1986.
"Collection Period" shall have the meaning set forth in the
Indenture.
"Corporate Trust Office" shall mean the principal corporate
trust office of the Owner Trustee or the Indenture Trustee, at which, at any
particular time, its corporate trust business is administered, which office at
the date hereof is located at the address set forth in Section 13.4.
"Cut-off Date" shall mean August 1, 1998.
"Company" shall mean IMH Assets Corp., a California
corporation, or its successor in interest.
"Eligible Trustee" shall mean a bank (within the meaning of
Section 2(a)(5) of the 0000 Xxx) that meets the requirements of Section 26(a)(1)
of the 1940 Act, that is not an Affiliate of the Company or an Affiliate of any
Person involved in the organization or operation of the Company, that is
organized and doing business under the laws of any state or the United States of
America, that is authorized under such laws to exercise corporate trust powers
and to accept the trusts conferred under this Agreement, that has a combined
capital and surplus and undivided profits of at least $100,000,000 that is
subject to supervision or examination by federal or state authority and that
otherwise satisfies the criteria set forth in Section 5.05 of the Indenture with
respect to the eligibility of the Indenture Trustee. If such bank publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this definition the combined capital, surplus and undivided profits 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.
4
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as it may be amended from time to time.
"Extraordinary Expense" shall have the meaning assigned
thereto in the Indenture.
"Governmental Authority" shall mean any government, or any
commission, authority, board, agency, division, subdivision or any court or
tribunal of the government, of the United States of America or of any state,
territory, city, municipality, county or town thereof or of the District of
Columbia, or of any foreign jurisdiction, including the employees or agents
thereof.
"Indenture" shall mean that certain Indenture, dated as of
August 1, 1998, by and between the Issuer and the Indenture Trustee, pursuant to
which the Bonds are being issued, as the same may from time to time be
supplemented or amended.
"Indenture Default" shall have the meaning assigned to the
term "Event of Default" in Section 4.01 of the Indenture.
"Independent" shall have the meaning assigned thereto in the
Servicing Agreement. The Issuer may rely, in the performance of any duty
hereunder, upon the statement of any Person contained in any certificate or
opinion that such Person is Independent.
"IRS" shall mean the Internal Revenue Service.
"Lien" shall mean any lien, pledge, mortgage, security
interest or other encumbrance on any particular asset or property.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"Officers' Certificate" shall mean (i) with respect to the
Owner Trustee, a certificate signed by a Responsible Officer of the Owner
Trustee and (ii) with respect to any other entity, a certificate signed on
behalf of the applicable entity by two officers, one of whom shall be the
Chairman of the Board, the Vice Chairman of the Board, the President, any Vice
President or Managing Director, an Assistant Vice President or any other
authorized officer (however designated) and the other of which shall be by the
Treasurer, the Secretary, one of the Assistant Treasurers or Assistant
Secretaries, or, in either case, another officer customarily performing
functions similar to those performed by any of the above designated officers or,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
5
"Operative Agreements" shall mean, collectively, this
Agreement, the Owner Trust Certificates, the Indenture, the Servicing Agreement,
the Loan Sale Agreement and the Management Agreement.
"Opinion of Counsel" shall mean a written opinion of counsel,
which may, without limitation, but subject to the requirements of the Indenture,
be rendered by employees or other counsel for the Company (unless specifically
required to be rendered by an Independent counsel), which in form and substance
is reasonably acceptable to the Owner Trustee.
"Owner Trust" shall mean the trust established under this
Agreement and designated as the "Impac CMB Trust 1998-C1."
"Owner Trust Certificate" shall mean any of the Class P, Class
XS or Class R Certificates issued hereunder.
"Owner Trustee" shall have the meaning assigned to that term
in the Preliminary Statement hereto.
"Owner Trustee Fee" shall be the fee payable to the Owner
Trustee as provided for in the Servicing Agreement.
"Owner Trustee Report" shall have the meaning assigned thereto
in Section 4.3.
"Percentage Interest" shall mean, with respect to any Owner
Trust Certificate, the percentage interest in the related Class evidenced by
such Owner Trust Certificate as specified on the face thereof.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, limited liability company, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Principal Prepayment" shall have the meaning assigned thereto
in the Indenture.
"QIB" shall mean a qualified institutional buyer within the
meaning of Rule 144A under the 1933 Act.
"QRS" shall mean a qualified REIT subsidiary within the
meaning of Section 856(i) of the Code.
"Record Date" shall mean, with respect to any Owner Trust
Certificate and any Payment Date, the last Business Day of the calendar month
preceding the month in which such Payment Date occurs.
"REIT" shall mean a real estate investment trust within the
meaning of Section 856(a) of the Code.
6
"REO Account" shall have the meaning assigned thereto in the
Servicing Agreement.
"Responsible Officer" shall mean any officer of the Owner
Trustee customarily performing functions with respect to corporate trust matters
and having direct responsibility for the administration of the Owner Trust and,
with respect to a particular matter, any other officer of the Owner Trustee to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Servicer Event of Default" shall have the meaning assigned to
the term "Servicing Event of Default" in the Servicing Agreement.
"Servicing Agreement" shall mean that certain Servicing
Agreement, dated as of August 1, 1998, among Midland Loan Services, Inc., the
Indenture Trustee and the Owner Trust, as the same may from time to time be
supplemented or amended.
"Transfer" shall mean any direct or indirect transfer or other
form of assignment of any Owner Trust Certificate.
"Trust Estate" shall have the meaning assigned thereto in the
Indenture.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect in any applicable jurisdiction.
"Voting Rights" shall mean that portion of the voting rights
of all the Owner Trust Certificates which is allocated to any particular Owner
Trust Certificate. At all times during the term of this 98% of the Voting Rights
shall be allocated to the Holders of the Class P Certificates, 2% of the Voting
Rights shall be allocated to the Holders of the Class XS Certificates, 0% of the
Voting Rights shall be allocated to the Holders of the Class R Certificates.
Voting Rights allocated to the Holders of any Class of Owner Trust Certificates
shall be allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Owner Trust Certificates.
7
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF BUSINESS TRUST BY THE BANK
SECTION 2.1 DECLARATION OF BUSINESS TRUST BY THE BANK. The
Owner Trust shall be known as the "Impac CMB Trust 1998-C1," in which name the
Owner Trustee may conduct the affairs of the Owner Trust. Wilmington Trust
Company is hereby appointed to hold the Trust Estate as Owner Trustee in trust
upon the terms and conditions and for the use and benefit of the
Certificateholders as herein set forth.
It is the intention of the parties hereto that the trust
created by this Agreement constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing instrument of such
business trust. This declaration of trust is not intended to create a
partnership or a joint-stock association. As soon as practicable after the date
hereof, the Owner Trustee shall file the Certificate of Trust required by
Section 3910(a) of the Business Trust Statute, in the office of the Secretary of
State of the State of Delaware (the "Certificate of Trust"). Effective as of the
date hereof, the Owner Trustee shall have all the rights, powers and duties set
forth herein and in the Business Trust Statute with respect to accomplishing the
purposes of the Owner Trust. For purposes of this declaration of trust,
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. ss. 3801 ET SEQ., as the same may be amended from time to time.
SECTION 2.2 TRANSFER OF TRUST ESTATE TO THE OWNER TRUSTEE;
CONVEYANCE OF THE MORTGAGE LOANS.
(a) The Company hereby grants, assigns and transfers to, and
deposits with, the Bank, as Owner Trustee for the benefit of the
Certificateholders, (i) as of the Cut-off Date, all of the Company's right,
title and interest in and to the Trust Estate, including (x) the Mortgage Loans,
(y) the Loan Sale Agreement and (z) all other assets included or to be included
in the Trust Estate. In addition, such assignment includes all interest and
principal received or receivable on or with respect to the Mortgage Loans (other
than payments of interest and principal due and payable on the Mortgage Loans on
or before the Cut-off Date and any Principal Prepayments received on or prior to
the Cut-off Date).
The Bank hereby declares that it shall hold the Trust Estate
as Owner Trustee upon the trusts set forth herein and for the use and benefit of
the Certificateholders, subject, however, to the Lien on the Trust Estate
granted to the Indenture Trustee for the use and benefit of the Bondholders as
provided in the Indenture. Notwithstanding the foregoing, the Company and the
Bank hereby acknowledge and agree that neither the Bank nor the Company shall
have any obligations hereunder with respect to the Trust Estate prior to the
Closing Date.
(b) The conveyance of the Mortgage Loans and all other assets
constituting the Trust Estate by the Company as contemplated hereby is absolute
and is intended by the parties to constitute and shall constitute a sale of the
Mortgage Loans and all other assets constituting the
8
Trust Estate by the Company to the Owner 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 Company
intends that the rights and obligations of the parties to such loan shall be
established pursuant to the terms of this Agreement. The Company also intends
and agrees that, in such event, (i) this Agreement shall constitute a security
agreement under applicable law, (ii) the Company shall be deemed to have granted
to the Owner Trust a first priority security interest in the Company's entire
right, title and interest in and to the assets constituting the Trust Estate,
including, without limitation, the Mortgage Loans (excluding all principal and
interest received or receivable with respect to the Mortgage Loans and any
Principal Prepayments received on or prior to the Cut-off Date), all amounts
held from time to time in the Bond Account, the Certificate Account, the
Collection Account and, if established, the REO Account and all reinvestment
earnings on such amounts, and all of the Company's right, title and interest in
and to the proceeds of any title, hazard or other insurance policies related to
the Mortgage Loans, (iii) the possession by the Owner Trustee on behalf of the
Owner Trust (or any subsequent assignee, including, without limitation, the
Indenture Trustee) of the Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by a purchaser or person
designated by such secured party for the purpose of perfecting such security
interest under applicable law and (iv) 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 Owner Trust (or any subsequent assignee, including, without
limitation, the Indenture Trustee) for the purpose of perfecting such security
interest under applicable law. The Company shall file or cause to be filed, as a
precautionary filing, a Form UCC-1 in all appropriate locations in the States of
Delaware, Illinois and New York promptly following the initial issuance of the
Owner Trust Certificates, and the Owner Trustee shall prepare, execute and file
at each such location continuation statements with respect thereto, in each case
within six months prior to the fifth anniversary of the immediately preceding
filing. The Company shall cooperate in a reasonable manner with the Owner
Trustee in preparing and filing such continuation statements. This Section
2.2(b) shall constitute notice to the Owner Trustee pursuant to any of the
requirements of the Uniform Commercial Code in effect in Delaware, Illinois and
New York.
(c) Except as expressly provided in Section 8.1, neither the
Company nor any Certificateholder shall be able to revoke the trust established
hereunder. Except as expressly provided in the Servicing Agreement, the Impac
Loan Sale Agreement, the IMH Loan Sale Agreement and in Sections 4.2 and 8.1
hereof, the Owner Trustee shall not assign, sell, dispose of, substitute for or
transfer any interest in, nor may the Company or any Certificateholder withdraw
from the Owner Trust, any Mortgage Loan or other asset constituting the Trust
Estate. Except as contemplated by the Indenture, the Owner Trustee shall not
permit the Mortgage Loans or any other asset constituting the Owner Trust Estate
to be subjected to any lien, claim or encumbrance arising by, through or under
the Owner Trustee or any person claiming by, through or under the Owner Trustee.
9
SECTION 2.3 AUTHORITY TO EXECUTE AND PERFORM VARIOUS
DOCUMENTS. The Company hereby authorizes and directs the Owner Trustee (i) to
execute and deliver, as trustee for and on behalf of the Certificateholders, the
Operative Agreements to which the Owner Trust is a party and all other
agreements, documents, instruments and certificates contemplated to be executed
and delivered by the Owner Trust pursuant to the Operative Agreements and,
pursuant to the terms of the Indenture, to execute and deliver the Bonds to the
Indenture Trustee and to instruct the Indenture Trustee to authenticate and
deliver the Bonds to and upon the order of the Company (each such Operative
Agreement and the Bonds to be in the form approved by the Company); (ii) to
execute and deliver the Owner Trust Certificates to and upon the order of the
Company; (iii) as and to the extent provided in the Indenture, to pledge the
Trust Estate as security for the repayment of the Bonds and, in connection
therewith, to cause to be delivered to the Indenture Trustee, pursuant to the
Loan Sale Agreement, each of the documents and instruments contemplated by the
Granting Clause of the Indenture; (iv) to take whatever action shall be required
to be taken by the Owner Trustee by the terms of, and exercise its rights and
perform its duties under, each of the documents, agreements, instruments and
certificates referred to in clauses (i) through (iii) above as set forth in such
documents, agreements, instruments and certificates; and (v) subject to the
terms of this Agreement, to take such other action in connection with the
foregoing as the Certificateholders may from time to time direct.
SECTION 2.4 EXECUTION AND DELIVERY OF OWNER TRUST
CERTIFICATES.
(a) The Owner Trustee shall, on the date hereof, execute and
cause to be authenticated and delivered to and upon the order of the Company,
the Owner Trust Certificates in authorized denominations evidencing the entire
beneficial ownership of the Owner Trust. The rights of the Holders of the
respective Classes of Owner Trust Certificates to receive distributions from the
proceeds of the Trust Estate in respect of their Owner Trust Certificates, and
all ownership interests of such Holders in such distributions, shall be as set
forth in this Agreement.
(b) The Class P, Class XS and Class R Certificates shall be
substantially in the forms attached hereto as EXHIBIT X-0, XXXXXXX X-0, and
EXHIBIT A-3, respectively, provided that any of the Owner Trust Certificates may
be issued with appropriate insertions, omissions, substitutions and variations
and may have imprinted or otherwise reproduced thereon such legend or legends,
not inconsistent with the provisions of this Agreement, as may be required to
comply with any law or with rules or regulations pursuant thereto, or with the
rules of any securities market in which the Owner Trust Certificates are
admitted to trading, or to conform to general usage. The Owner Trust
Certificates of each Class shall be issuable in registered and certificated form
only, representing not less than a 25% Percentage Interest in such Class.
(c) Each Owner Trust Certificate may be printed or in
typewritten or similar form, and each Owner Trust Certificate shall, upon
original issue, be executed by the Owner Trustee and authenticated by the
Certificate Registrar and delivered to or upon the order of the Company. All
Owner Trust Certificates shall be executed by manual or facsimile signature on
behalf of the Owner Trust by an authorized officer of the Owner Trustee, not
individually, but solely as Owner Trustee hereunder. Owner Trust Certificates
bearing the signatures of
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individuals who were at any time the proper officers of the Owner Trustee shall
bind the Owner Trustee, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the delivery of such Owner Trust
Certificates or did not hold such offices at the date of such Owner Trust
Certificates. No Owner Trust Certificates shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such Owner
Trust Certificate a certificate of authentication in the forms set forth on the
signature pages of the respective forms of Owner Trust Certificates attached as
EXHIBITS X-0, X-0 and A-3, executed by the Certificate Registrar by manual
signature, and such certificate of authentication upon any Owner Trust
Certificate shall be conclusive evidence, and the only evidence, that such Owner
Trust Certificate has been duly authenticated and delivered hereunder. All Owner
Trust Certificates shall be dated the date of their authentication.
SECTION 2.5 ACTIVITIES OF THE OWNER TRUST. It is the intention
of the parties hereto that the Owner Trust shall not engage in any business or
activities other than in connection with, or relating to, the purposes specified
in Section 2.3. The operations of the Owner Trust shall be conducted in
accordance with the following standards (and the Owner Trustee and the Company
hereby agree to use their best efforts to cause the operations of the Owner
Trust to be conducted in accordance herewith):
(i) The Owner Trust shall observe all procedures
required by this Agreement and shall observe all trust formalities.
(ii) Except as otherwise provided in the Servicing
Agreement, the Management Agreement and the Indenture and in Sections
5.1 and 5.4 hereof, the business and affairs of the Owner Trust shall
be managed by or under the direction of the Owner Trustee. Except as
otherwise expressly provided in this Agreement, the Company shall have
no authority to act for, or to assume any obligation or responsibility
on behalf of, the Owner Trust.
(iii) The Owner Trust shall keep correct and complete
books and records of accounts and minutes of the meetings and other
proceedings of its trustees, separate from those of the Company or any
subsidiary, affiliate or separate account of the Company. Any such
resolutions, agreements and other instruments shall be continuously
maintained as official records by the Owner Trust.
(iv) Each of the Company and the Owner Trust shall
provide for its own operating expenses and liabilities from its own
funds. General overhead and administrative expenses of the Owner Trust
shall not be charged or otherwise allocated to the Company (except
indirectly, insofar as the Company owns the Owner Trust Certificates)
and such expenses of the Company shall not be charged or otherwise
allocated to the Owner Trust.
(v) The Owner Trust shall hold itself out as a separate
entity, shall conduct its business under names or tradenames so as not
to mislead others as to the identity of the Owner Trust and shall
correct any known misunderstanding regarding its separate identity.
Without limiting the generality of the foregoing, all oral and written
communications,
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including letters, invoices, contracts, statements, and applications
shall be made solely in the name of the Owner Trust if related to the
Owner Trust. The Company and the Owner Trust each shall utilize
separate stationery and other business forms.
(vi) There shall be no guarantees made by the Owner
Trust with respect to obligations of the Company or any other entity.
There shall not be any indebtedness relating to borrowings or loans
between the Owner Trust and the Company.
(vii) The Owner Trust shall act solely in its name in the
conduct of its business and through its duly authorized officers or
agents or through the Owner Trustee. The Owner Trust shall not (a)
operate or purport to operate as an integrated, single economic unit
with respect to the Company or any other affiliated or unaffiliated
entity, (b) seek or obtain credit or incur any obligation to any third
party based upon the assets of the Company or (c) induce any such third
party to reasonably rely on the creditworthiness of the Company or any
other affiliated or unaffiliated entity.
(viii) The Owner Trust shall cause its principal place of
business to be maintained in the State of Delaware.
(ix) The Owner Trust and the Company shall keep separate
their respective funds and other assets and shall not commingle such
funds and other assets with those of any other Affiliates thereof.
(x) If and to the extent applicable, the Owner Trustee
Reports shall be those of the Owner Trust, and the Owner Trust shall
cause the preparation of financial statements that are separate from
those of the Company and any other Affiliates (although it may be
presented as part of the consolidated financial statements of an
Affiliate).
(xi) The Owner Trust shall not engage in any transaction
with an Affiliate on any terms other than would be obtained in an
arm's-length transaction with a non-Affiliate.
(xii) The Owner Trust shall neither act nor fail to act
in a manner that would cause it to lose its status as a QRS.
(xiii) The Owner Trust shall not incur debt (other than
the issuance of the Bonds).
(xiv) The Owner Trust shall not dissolve, liquidate,
consolidate, merge or sell assets (other than as specifically permitted
hereunder) or amend this Agreement except in accordance with Article X
herein.
(xv) The Owner Trust shall not voluntarily file a
petition for bankruptcy, reorganization, assignment for the benefit of
creditors or similar proceeding without the consent of the Owner
Trustee
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ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 ESTABLISHMENT OF CERTIFICATE ACCOUNT; DEPOSITS
IN CERTIFICATE ACCOUNT.
The Owner Trustee, for the benefit of the Certificateholders,
shall establish and maintain one or more non-interest bearing trust accounts
(collectively, the "Certificate Account"), entitled "Wilmington Trust Company,
in trust for the registered holders of the Impac CMB Trust 1998-C1 Commercial
Mortgage Loan Certificates of Beneficial Ownership" and held in trust by the
Owner Trustee for the benefit of the Certificateholders. The Owner Trustee shall
cause the following payments and collections to be deposited directly into the
Certificate Account: (1) all payments received by the Owner Trust as issuer of
the Bonds from the Indenture Trustee from time to time pursuant to Section 2.10
of the Indenture and (2) any other amounts specifically required to be deposited
in the Certificate Account by this Agreement. The foregoing requirements for
deposit in the Certificate Account shall be exclusive; provided, however, that
any amounts received by the Owner Trustee in error shall be immediately
deposited into the Collection Account (as defined in the Servicing Agreement).
SECTION 3.2 PERMITTED WITHDRAWALS FROM THE CERTIFICATE
ACCOUNT.
The Owner Trustee may from time to time withdraw funds from
the Certificate Account for the following purposes:
(i) to make distributions on the Owner Trust Certificates
in the amounts and in the manner provided for in
Section 4.2 hereof;
(ii) to pay itself any unpaid Owner Trustee Fees, but only
to the extent of amounts in the Certificate Account
representing amounts received in respect of the
Mortgage Loans;
(iii) to reimburse or indemnify the Owner Trustee for
expenses and other liabilities incurred by and
reimbursable to the Owner Trustee pursuant to Section
7.2 hereof and not previously reimbursed, except as
otherwise provided in such section;
(iv) to remit to the Collection Account (as defined in the
Servicing Agreement) any amounts deposited into the
Certificate Account in error; and
(v) to clear and terminate the Certificate Account upon
the termination of this Agreement.
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On each Payment Date, the Owner Trustee shall withdraw all
funds from the Certificate Account and shall use such funds withdrawn from the
Certificate Account only for the purposes described in this Section 3.2 and
Section 4.2 hereof.
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ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE OWNER TRUST ESTATE
SECTION 4.1 DISTRIBUTION OF PAYMENTS.
(a) In the event that, following the commencement of the
initial Collection Period and prior to the Lien on the Trust Estate under the
Indenture having been discharged and released, any payments on account of the
Mortgage Loans are received directly (rather than through the Indenture Trustee)
by the Owner Trustee, the Company or a Certificateholder, the Person so
receiving such payment shall, promptly upon receipt, deliver such payment over
to the Indenture Trustee without deduction, set-off or adjustment of any kind,
provided, however, that any payments received by the Owner Trustee with respect
to the Owner Trustee Fees, or pursuant to Article VII hereof, shall not be paid
over to the Indenture Trustee but may be retained by the Owner Trustee and
applied toward the purpose for which such payments were made.
(b) Pursuant to the terms of the Indenture, after payment by
the Indenture Trustee of all required payments on the Bonds on each Payment
Date, the balance of the Available Amount on deposit in the Bond Account shall
be remitted by the Indenture Trustee to the Owner Trustee for application as
provided in Section 3.2 (including distributions to the Certificateholders in
accordance with Section 4.2 hereof). The Owner Trustee shall distribute such
balance on each Payment Date in a manner consistent with Sections 3.2 and 4.2
(as if such balance were on deposit in the Certificate Account), and in
connection therewith, such balance shall be deemed to have been deposited in the
Certificate Account and subsequently withdrawn to make such distributions.
SECTION 4.2 PAYMENTS.
(a) On each Payment Date (or, if the payments from the
Indenture Trustee on such Payment Date contemplated by Section 4.1(b) shall have
been received after 2:00 p.m., New York City time, on such Payment Date, as soon
as practically possible, but in no event more than one Business Day, following
receipt), the Owner Trustee shall withdraw from the Certificate Account all
related Certificateholder Funds then on deposit therein, and the Owner Trustee
shall pay such Certificateholder Funds to the Holders of the respective Classes
of Owner Trust Certificates for the following purposes and in the following
order, in each case to the extent of remaining available funds:
(i) to the Holders of the Class P Certificates and the
Holders of the Class XS Certificates in respect of
interest, PRO RATA based on entitlement, up to an
amount equal to all Accrued Certificate Interest in
respect of each such Class of Owner Trust
Certificates for such Payment Date and, to the extent
not previously paid, for all prior Payment Dates; and
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(ii) to the Holders of the Class P Certificates in respect
of principal, up to an amount equal to the Aggregate
Certificate Principal Amount of the Class P
Certificates immediately prior to such Payment Date;
and
(iii) to the Holders of the Class R Certificates, an amount
equal to the remaining portion, if any, of the
Certificateholder Funds for such Payment Date.
Payments made after the Payment Date on which they were
scheduled to be made as permitted by the parenthetical in the first sentence of
this Section 4.2(a) shall be deemed to have been made on such Payment Date.
(b) All payments made with respect to any Class of Owner Trust
Certificates on any Payment Date shall be allocated PRO RATA among the Owner
Trust Certificates of such Class based upon their respective Percentage
Interests. Payments to the Certificateholders on each Payment Date shall be made
to the Certificateholders of record on the related Record Date. Payments to any
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Owner Trustee in writing at least
five Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a 331/3% Percentage Interest in any Class thereof, or
otherwise by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. Final payment on each
Owner Trust Certificate shall be made in like manner, but only upon presentment
and surrender of such Owner Trust Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
distribution.
(c) Whenever the Owner Trustee expects that the final payment
with respect to the Owner Trust Certificates of any Class will be made on the
next Payment Date, or upon termination of the Owner Trust in accordance with
Section 8.01, the Owner Trustee shall mail to each Holder on such date of the
Owner Trust Certificates of such Class a notice to the effect that:
(i) the Owner Trustee expects that the final payment with
respect to the Owner Trust Certificates of such Class
will be made on such Payment Date but only upon
presentation and surrender of the Owner Trust
Certificates of such Class at the office of the Owner
Trustee therein specified, and
(ii) no interest shall accrue on the Owner Trust
Certificates of such Class from and after such
Payment Date.
Upon presentation and surrender of the Owner Trust Certificates of any Class by
the related Certificateholders on the Final Payment Date in respect of such
Owner Trust Certificates, the Owner Trustee shall distribute to the
Certificateholders the amounts otherwise distributable on such Payment Date
pursuant to Section 4.2(a). Any funds not distributed on such Payment Date
because of the failure of any Certificateholders to tender their Owner Trust
Certificates shall be set aside and held in trust for the account of the
appropriate non-tendering Certificateholders. If
16
any Owner Trust Certificate, as to which notice has been given pursuant to this
Section 4.2(c) shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Owner Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Owner Trust Certificates for
cancellation in order to receive, from such funds held, the final payment with
respect thereto. If within one year after the second notice any Owner Trust
Certificate shall not have been surrendered for cancellation, the Owner Trustee
shall take reasonable steps to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
Owner Trust Certificates shall not have been surrendered for cancellation, the
Owner Trustee shall pay all amounts distributable to the Holders thereof to the
Holders of the Class R Certificates. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Owner Trust Certificates for final payment thereof in
accordance with this Section 4.2(c).
SECTION 4.3 STATEMENTS TO CERTIFICATEHOLDERS.
On each Payment Date, or promptly thereafter, the Owner
Trustee shall forward by mail, a statement (the "Owner Trustee Report") to each
Certificateholder, the Company, the Indenture Trustee and to the Rating Agencies
stating:
(i) the Certificateholder Funds for such Payment Date;
(ii) the aggregate amounts of interest and principal paid
to the Holders of the Class P Certificates and of
interest to the Holders of the Class XS Certificates
on such Payment Date;
(iii) the aggregate amount of any distributions to the
Holders of the Class R Certificates on such Payment
Date;
(iv) the Aggregate Certificate Principal Balance of the
Class P Certificates after giving effect to payments
of principal and other increases and reductions in
respect of the Aggregate Certificate Principal
Balance of such Owner Trust Certificates on such
Payment Date; and
(v) the amount of the Owner Trustee Fees received by the
Owner Trustee since the preceding Payment Date and
any unpaid Owner Trustee Fees then due and owing to
the Owner Trustee.
In addition, the Owner Trustee shall promptly (and, in any
event, within five Business Days of receipt) furnish to Certificateholders and
the Company copies of any notices, statements, reports or other communications
received by the Owner Trustee on behalf of the Owner Trust as issuer of the
Bonds or as owner of the Mortgage Loans, including any such
17
notices, statements, reports or other communications relating to the Bonds or
the Indenture or to the Mortgage Loans or the other assets of the Trust Estate.
On or before March 31st of each calendar year, beginning with
calendar year 1999, the Owner Trustee shall prepare, or cause to be prepared and
shall deliver, or cause to be delivered, by first class mail to each Person who
at any time during the previous calendar year was a Certificateholder of record
a statement containing the information required to be contained in the Owner
Trustee Report pursuant to clauses (ii) and (iii) above, as applicable,
aggregated for such calendar year or the applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Owner Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Owner Trustee pursuant to any requirements
of the Code and regulations thereunder as from time to time are in force.
SECTION 4.4 ACCESS TO CERTAIN DOCUMENTATION AND
INFORMATION.
(a) The Owner Trustee shall afford to the Company, the
Manager, the Indenture Trustee the Master Servicer, the Special Servicer and any
Certificateholder, and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to all reports, documents and records maintained by the Owner Trustee in
respect of its duties hereunder and all documentation regarding the Mortgage
Loans within its control that may be required to be provided by this Agreement
or by applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
designated by the Owner Trustee.
(b) The Owner Trustee shall maintain at its office primarily
responsible for administration of the Owner Trust and shall deliver to the
Company, the Rating Agencies and, subject to the succeeding paragraph, any
Certificateholder or Person identified to the Owner Trustee as a prospective
transferee of an Owner Trust Certificate or an interest therein (at the
reasonable request and, except for the Rating Agencies, expense of the
requesting party), copies of the following items (to the extent that such items
have been delivered to the Owner Trustee or the Owner Trustee can cause such
items to be delivered to it without unreasonable burden or expense): (i) any
private placement memorandum or other disclosure document relating to the Owner
Trust Certificates of the related Class, in the form most recently provided to
the Owner Trustee by the Company or by any Person designated by the Company;
(ii) this Agreement, the Indenture, the Servicing Agreement, the Management
Agreement, the Loan Sale Agreement and any amendments hereto or thereto; (iii)
all reports prepared by, and all reports delivered to, the Owner Trustee, the
Indenture Trustee, the Master Servicer or the Special Servicer since the Closing
Date; (iv) all Officer's Certificates delivered by the Master Servicer and the
Special Servicer since the Closing Date pursuant to Section 3.13 of the
Servicing Agreement and all Officer's Certificates delivered by the Owner
Trustee since the Closing Date pursuant to Section 9.07 of the Indenture; (v)
all accountants' reports caused to be delivered by the Master Servicer and the
Special Servicer since the Closing Date pursuant to Section 3.14 of the
Servicing Agreement; (vi) the most recent inspection report prepared by the
Special Servicer in respect of each Mortgaged Property pursuant to Section
3.12(a) of the Servicing Agreement; (vii) the most
18
recent available operating statement of each Mortgaged Property and financial
statements of the related Borrower collected by the Master Servicer or the
Special Servicer pursuant to Section 3.12(b) of the Servicing Agreement,
together with the accompanying written reports to be prepared by the Master
Servicer or the Special Servicer, as the case may be, pursuant to Section 3.12
of the Servicing Agreement; (viii) any and all notices and reports with respect
to any Collateral as to which the environmental testing contemplated by Section
3.09(b) of the Servicing Agreement revealed that any of the conditions set forth
in clauses (A)(i) and (A)(ii) of the first sentence thereof was not satisfied;
(ix) all Determination Date Reports, Portfolio Performance Reports and Special
Servicer Reports since the Closing Date prepared pursuant to Section 4.01 of the
Servicing Agreement, and all Trustee Reports since the Closing Date prepared
pursuant to Section 6.01 of the Indenture; (x) copies of each of the Bonds; (xi)
copies of each of the Mortgage Loan Files, including any and all modifications,
waivers and amendments of the terms of a Mortgage Loan entered into or consented
to by the Master Servicer or the Special Servicer and delivered to the Owner
Trustee pursuant to Section 3.20 of the Servicing Agreement or otherwise; and
(xii) any and all Officer's Certificates and other evidence to support the
Master Servicer or Special Servicer's, as the case may be, determination that
any Advance was or, if made, would be a Nonrecoverable Advance. The Owner
Trustee shall make available copies of any and all of the foregoing items upon
request of any party set forth in the previous sentence. However, the Owner
Trustee shall be permitted to require of such party (other than the Rating
Agencies) the payment of a sum sufficient to cover the reasonable costs and
expenses of providing such copies as are requested by such party.
The Owner Trustee shall make available, upon reasonable
advance notice and at the expense of the requesting party, copies of the above
items to any Holder of Owner Trust Certificates and to prospective purchasers of
Owner Trust Certificates; provided, that, as a condition to making such items
available, the Owner Trustee shall require (a) in the case of
Certificateholders, a confirmation executed by the requesting Person
substantially in the form of Exhibit E-1 hereto generally to the effect that
such Person is a beneficial holder of Owner Trust Certificates, is requesting
the information solely for use in evaluating such Person's investment in the
Owner Trust Certificates and shall otherwise keep such information confidential
and (b) in the case of a prospective purchaser, confirmation executed by the
requesting Person and such Person's prospective transferor substantially in the
form of Exhibit E-2 hereto generally to the effect that such Person is a
prospective purchaser of an Owner Trust Certificate or an interest therein, is
requesting the information solely for use in evaluating a possible investment in
Owner Trust Certificates and shall otherwise keep such information confidential.
SECTION 4.5 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. In the
event that the Owner Trustee is required (whether on liquidation of the Owner
Trust or otherwise) to make payments to the Company or the Certificateholders,
notwithstanding any other provisions of this Agreement, the Owner Trustee shall
comply with all federal withholding requirements with respect to payments to the
Company or the Certificateholders that the Owner Trustee reasonably believes are
applicable under the Code. The consent of the Company or the Certificateholders,
as the case may be, shall not be required for any such withholding. The parties
hereto understand
19
and agree that the Owner Trustee shall not be required to gross up any such
payments for the amount of such withholding (or any other amounts).
20
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 NOTICE OF CERTAIN EVENTS; ACTION BY THE
OWNER TRUSTEE.
(a) Whenever the Owner Trustee, on behalf of the Owner Trust
as issuer of the Bonds or as owner of the Mortgage Loans, is requested or, as to
any particular matter, notified of its authority, by any Person, to take any
action or to give any consent, approval or waiver that it is entitled to take or
give on behalf of the Owner Trust in such capacity, the Owner Trustee shall
promptly notify all of the Certificateholders of such request or notice in such
detail as is available to it.
(b) Subject to the Owner Trustee's rights in this Agreement to
be indemnified as provided herein, the Owner Trustee shall take or refrain from
taking such action as Certificateholders entitled to a majority of the Voting
Rights shall so direct. The Owner Trustee may, from time to time, request
instructions from the Certificateholders, and shall request instructions from
the Certificateholders, if the Owner Trustee receives notice that a default
shall have occurred and is continuing under the Servicing Agreement, the
Management Agreement or the Indenture.
(c) Notwithstanding any direction of the Certificateholders to
the contrary or any provision hereof to the contrary, the Owner Trustee shall
not, without the written consent of the Indenture Trustee, execute any direction
of the Certificateholders that might result in the Owner Trust being terminated
prior to the satisfaction and discharge of the Lien of the Indenture on the
Trust Estate or prior to the payment in full of the principal of and accrued
interest on the Bonds.
SECTION 5.2 DISTRIBUTION OF REPORTS. The Owner Trustee shall
promptly (but not later than five Business Days following receipt thereof)
distribute to the Company and the Certificateholders such reports, notices,
statements and written materials which it actually receives as Owner Trustee or
otherwise on behalf of the Owner Trust hereunder or under any of the other
Operative Agreements.
SECTION 5.3 ACTION REQUIRED ONLY IF OWNER TRUSTEE IS
INDEMNIFIED. The Owner Trustee shall not be required to take any action under
Section 5.1(b) if the Owner Trustee shall reasonably determine, or shall have
been advised in writing by counsel, that such action is likely to result in
personal liability for which the Owner Trustee has not been and will not be
adequately indemnified or is contrary to the terms hereof or is otherwise
contrary to law, provided, however, that nothing contained herein shall relieve
the Owner Trustee of the obligation, upon the occurrence of an Indenture Default
or a Servicer Event of Default which has not been cured, to exercise such of the
rights and powers vested in it by this Agreement and to use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
21
SECTION 5.4 NO DUTIES EXCEPT AS SPECIFIED IN AGREEMENT
OR INSTRUCTIONS.
(a) The Owner Trustee shall not have any duty or obligation to
manage, control, use, make any payment in respect of, register, record, insure,
inspect, sell, dispose of or otherwise deal with the Mortgage Loans or any other
part of the Trust Estate, or to otherwise take or refrain from taking any action
under or in connection with any Operative Agreement to which it or the Owner
Trust is a party, except as expressly provided by the terms of this Agreement or
any such other Operative Agreement or in written instructions from the
Certificateholders received pursuant to Section 5.1(b), and no implied duties or
obligations shall be read into this Agreement against the Owner Trustee, other
than the obligation of the Owner Trustee to exercise such of the rights and
powers vested in it by this Agreement in good faith and in a manner which is not
grossly negligent and which does not constitute willful misconduct. The Bank
(and any successor trustee or co-trustee) in its individual capacity
nevertheless agrees that it shall, at its own cost and expense, promptly take
all action as may be necessary to discharge any Liens on the Trust Estate
arising by, through or under the Owner Trustee (or such successor trustee or
co-trustee, as the case may be) either (i) when acting in its individual
capacity or (ii) when acting improperly in its capacity as Owner Trustee.
(b) Without limiting the generality of the foregoing
subsection (a), except as otherwise explicitly provided in this Agreement or in
any other Operative Agreement to which they or the Owner Trust is a party,
neither the Owner Trustee nor the Bank shall have any duty to (i) file or record
any Operative Agreement or any other document, or to maintain or continue any
such filing or recording or to refile or rerecord any such document, (ii) pay or
discharge any tax or any Lien owing with respect to or assessed or levied
against any part of the Trust Estate, other than to forward notice of such tax
or Lien received by the Owner Trustee to the Certificateholders and the
Indenture Trustee, (iii) confirm, verify, investigate or inquire into the
failure of any party to receive any reports or financial statements in
connection with the Mortgage Loans, (iv) ascertain or inquire as to the
performance or observance of any person or entity under or of any of the
Operative Agreements, or (v) manage, control, sell, dispose of or otherwise deal
with the Mortgage Loans or any part hereof or any other part of the Owner Trust
Estate.
SECTION 5.5 NOTICE TO THE RATING AGENCIES AND OTHERS.
(a) The Owner Trustee shall promptly provide notice to the
Rating Agencies with respect to each of the following of which a Responsible
Officer of the Owner Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of (A) any default hereunder or
under the Management Agreement that has not been cured after notice and
prior to the expiration of any cure period, to the extent applicable,
which materially adversely affects the interests of any
Certificateholder or Bondholder or (B) an Indenture Default or a
Servicer Event of Default; and
22
(iii) the final distribution to the Certificateholders
hereunder.
(b) Any Officer's Certificate, Opinion of Counsel, report,
notice, request or other communication received or prepared by the Owner
Trustee, or caused to be so prepared for dissemination as provided for herein,
shall also be concurrently forwarded to the Company and the Manager to the
extent not otherwise required to be so forwarded.
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ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 ACCEPTANCE OF OWNER TRUST AND DUTIES. The Bank
accepts the trust hereby created and agrees to perform the same, but only upon
the terms of this Agreement in accordance with the standard of care set forth in
Section 5.4(a). The Bank agrees to receive, manage and disburse all moneys
constituting part of the Trust Estate actually received by it as Owner Trustee
in accordance with the terms of this Agreement. Neither the Bank nor the Owner
Trustee shall be answerable or accountable under any circumstances, except for
(i) its own willful misconduct, bad faith or gross negligence, (ii) the
inaccuracy of any of its representations or warranties contained in Section 6.2
of this Agreement, (iii) its failure to perform obligations expressly undertaken
by it in this Agreement in accordance with the standard of care set forth in
Section 5.4(a), (iv) taxes based on or measured by any fees, commissions or
compensation received by it for acting as Owner Trustee in connection with any
of the transactions contemplated by this Agreement or any other Operative
Agreements, (v) its failure to use due care to receive, manage and disburse
moneys actually received by it in accordance with the terms hereof, and (vi) any
other claims, amounts or taxes otherwise excluded from the indemnity obligations
pursuant to Article VII.
SECTION 6.2 LIMITED REPRESENTATIONS OR WARRANTIES OF
THE OWNER TRUSTEE.
Neither the Bank nor the Owner Trustee makes (i) any
representation or warranty, either express or implied, as to the title to or
value of the Mortgage Loans, and (ii) any representation or warranty as to the
validity or enforceability of any Operative Agreement except as set forth below
or as to the correctness of any statement made by a person or entity other than
the Bank or the Owner Trustee contained in any Operative Agreement. The Bank
represents, warrants and covenants to and for the benefit of the Company, the
Manager, the Owner Trust, the Indenture Trustee, and the holders of the Bonds
and the Owner Trust Certificates that:
(a) The Bank is a banking corporation, duly organized and
validly existing as a bank and trust company in good standing under the
laws of the State of Delaware;
(b) The execution and delivery by the Bank, and the
performance and compliance by the Bank with the terms of, this
Agreement and any and all documents to be executed or delivered by the
Bank in its individual capacity in connection with this Agreement and
to fulfill its obligations under, and to consummate the transactions
contemplated by, this Agreement, and such other documents executed in
connection herewith to which the Bank is a party, will not violate any
provisions of the Bank's charter or bylaws, and no consent, approval,
authorization or order of or filing with or notice to any court or
governmental agency or body is required for the execution, delivery or
performance by the Bank hereof or thereof;
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(c) The Bank, in its individual capacity, has full power and
authority and has taken all action necessary to execute and deliver
this Agreement and any and all documents to be executed or delivered by
it in its individual capacity in connection with this Agreement and to
fulfill its obligations under, and to consummate the transactions
contemplated by, this Agreement and such other documents executed in
connection herewith to which it or the Owner Trust is a party, and this
Agreement and such other documents executed in connection herewith to
which it or the Owner Trust is a party are the legal, valid and binding
obligations of the Bank in its individual capacity or the Owner Trust,
as applicable, enforceable against the Bank or the Owner Trust, as
applicable in accordance with their respective terms, except as such
terms may be limited by insolvency, receivership, moratorium or other
similar laws affecting the rights of creditors generally and by general
principles of equity;
(d) The consummation of the transactions hereby contemplated
do not conflict with, violate or contravene any law, rule, regulation
or judicial, governmental or administrative order applicable to the
Bank or the Owner Trustee or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions
of any agreement or instrument to which the Bank is a party or by which
it is bound, or any order or decree applicable to the Bank, or result
in the creation or imposition of any Lien on any of the Bank's assets
or property, which would materially and adversely affect the ability of
the Bank or Owner Trustee to carry out the transactions contemplated by
this Agreement; and
(e) There is no action, suit or proceeding pending against the
Bank, in its individual capacity or as Owner Trustee, in any court or
by or before any other governmental agency or instrumentality which
would materially and adversely affect the ability of the Bank, in its
individual capacity or as Owner Trustee, to carry out the transactions
contemplated by this Agreement.
SECTION 6.3 TRUST ACCOUNTS. Moneys received by the Owner
Trustee hereunder shall be segregated in a trust account maintained with a
federal or state chartered Company institution or trust company having corporate
trust powers acting in its fiduciary capacity.
SECTION 6.4 RELIANCE; ADVICE OF COUNSEL. Neither the Bank nor
the Owner Trustee shall incur any liability to any person or entity in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it in good faith to be signed by the proper party or
parties. The Owner Trustee may accept and rely upon 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
manner of ascertainment of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on an Officers' Certificate of
the relevant party, as to such fact or matter, and such Officers' Certificate
shall constitute full protection to the Owner Trustee for any action taken or
omitted to be taken by it in good faith in
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reliance thereon. In the administration of the Owner Trust hereunder, the Owner
Trustee may execute any of the trusts or powers hereof and perform its powers
and duties hereunder directly or through agents and may consult with counsel,
accountants and other professionals to be selected and employed by it, and the
Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written advice or opinion of counsel,
accountants or other professionals, so long as the Owner Trustee had no actual
knowledge that it could not reasonably rely on such advice or opinion or by any
such Persons appointed with due care. The Owner Trustee shall be solely liable
for the fees and expenses of the agents, counsel, accountants and other
professionals employed or consulted by it except to the extent expressly
provided herein, in the Servicing Agreement or in the Indenture.
SECTION 6.5 NOT ACTING IN INDIVIDUAL CAPACITY. All persons or
entities having any claim against the Bank or the Owner Trustee by reason of the
transactions contemplated by the Operative Agreements shall look only to the
Trust Estate (or a part thereof, as the case may be) for payment or satisfaction
thereof, except as specifically provided in this Agreement and except to the
extent that the Bank or the Owner Trustee shall otherwise expressly agree in any
Operative Agreement to which it or the Owner Trust is a party.
SECTION 6.6 BOOKS AND RECORDS; TAX ELECTION. The Owner Trustee
shall be responsible for the keeping of all appropriate books and records
relating to the receipt and disbursement of all moneys that it may receive or be
entitled to hereunder or under any other Operative Agreement. The Owner Trustee
shall file an application with the IRS for a taxpayer identification number with
respect to the Owner Trust (and, upon receipt of such number, shall notify the
Indenture Trustee thereof) and prepare or cause to be prepared and sign and/or
file a tax return in connection with the transactions contemplated hereby or by
any other Operative Agreement (the "Tax Return"); PROVIDED, HOWEVER, that the
Owner Trustee shall send or cause to be sent a copy of the completed Tax Return
to the Company, the Certificateholders and the Indenture Trustee not more than
60 nor less than 30 days prior to the due date of the Tax Return. The Company
and the Certificateholders shall each, upon request by the Owner Trustee,
furnish the Owner Trustee with all such information as may be reasonably
required from the Company or the Certificateholders in connection with the
preparation of such Tax Return. The Owner Trustee shall keep copies of the Tax
Returns delivered to or filed by it.
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ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION
OF THE OWNER TRUSTEE
SECTION 7.1 COMPENSATION OF THE OWNER TRUSTEE. The Owner
Trustee shall be entitled to receive the Owner Trustee Fee as compensation for
its services, which fee shall be payable: first, as provided in the Servicing
Agreement; second, out of amounts on deposit in the Certificate Account that
represent payments received in respect of the Mortgage Loans; and, third, to the
extent not paid pursuant to either clause first or second within 60 days of
first becoming due, by the Certificateholders, on a joint and several basis.
SECTION 7.2 REIMBURSEMENT AND INDEMNIFICATION OF THE OWNER
TRUSTEE.
(a) The Owner Trustee shall be entitled to be reimbursed from
the Collection Account for its reasonable expenses (including reasonable
attorneys' fees on an hourly basis) incurred in the performance of its duties as
Owner Trustee hereunder, and to be compensated reasonably for any extraordinary
services rendered under Section 5.1(b), except to the extent that such expenses
arise out of or result from (i) the Owner Trustee's own willful misconduct or
gross negligence, (ii) the inaccuracy of any of the Owner Trustee's
representations or warranties contained in Section 6.2 of this Agreement, (iii)
the Owner Trustee's failure to perform obligations expressly undertaken by it in
this Agreement in accordance with the standard of care set forth in Section
5.4(a), (iv) taxes based on or measured by any fees, commissions or compensation
received by the Owner Trustee for acting as such in connection with any of the
transactions contemplated by this Agreement or any other Operative Agreements,
and (v) the Owner Trustee's failure to use due care to receive, manage and
disburse moneys actually received by it in accordance with the terms hereof.
(b) The Owner Trustee shall be entitled to be indemnified and
held harmless from and against any and all liabilities, obligations, indemnity
obligations, losses (excluding loss of anticipated profits), damages, claims,
actions, suits, judgments, out-of-pocket costs, expenses and disbursements
(including reasonable legal fees determined at an hourly rate based solely upon
time actually expended, and expenses) of any kind and nature whatsoever
(collectively, the "Liabilities") which may be imposed on, incurred by or
asserted at any time against the Owner Trustee in any way relating to or arising
out of the Trust Estate, any of the properties included therein, the
administration of the Trust Estate or any action or inaction of the Owner
Trustee hereunder or under the Operative Agreements, except to the extent that
such Liabilities arise out of or result from (i) the Owner Trustee's own willful
misconduct or gross negligence, (ii) the inaccuracy of any of the Owner
Trustee's representations or warranties contained in Section 6.2 of this
Agreement, (iii) the Owner Trustee's failure to perform obligations expressly
undertaken by it in this Agreement in accordance with the standard of care set
forth in Section 5.4(a), (iv) taxes based on or measured by any fees,
commissions or compensation received by the Owner Trustee for acting as such in
connection with any of the transactions contemplated by this Agreement or any
other Operative Agreements, and (v) the Owner Trustee's failure to use due care
to receive, manage and disburse moneys actually received by it in accordance
with the terms
27
hereof. The indemnities contained in this Section 7.2(b) shall survive the
termination of this Agreement and the removal or resignation of the Owner
Trustee hereunder.
(c) Any reimbursements and indemnities to the Owner Trustee
pursuant to this Section 7.2 shall be payable: first, out of amounts on deposit
in the Collection Account; second, out of amounts on deposit in the Certificate
Account, and third, to the extent not paid pursuant to clause first and second
within 60 days of first being incurred, by the Certificateholders, on a joint
and several basis.
SECTION 7.3 NON-PAYMENT OF FEES AND EXPENSES. The Owner
Trustee hereby agrees not to cause or participate in the filing of a petition in
bankruptcy against the Owner Trust for the non-payment to the Owner Trustee of
any fees, expenses or other liabilities referred to in Sections 7.1 and 7.2, or
of any other amounts provided by this Agreement, until one year after the
payment in full of all the Bonds issued under the Indenture.
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ARTICLE VIII
TERMINATION OF OWNER TRUST AGREEMENT
SECTION 8.1 TERMINATION. The Owner Trust shall not be
terminated under this Section 8.1 until the Bonds have been paid in full and the
Lien on the Trust Estate created by the Indenture has been released; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
This Agreement may be terminated by all of the
Certificateholders at any time prior to the issuance of the Bonds and the pledge
of the Trust Estate pursuant to the Indenture, and at any time after the
Indenture is discharged in accordance with Article III thereof, and this
Agreement shall terminate in connection with the final payment on the last
remaining Bond. With respect to any such event, this Agreement and the estate
and rights thereby granted by the Company to the Owner Trustee in the Trust
Estate shall cease, terminate and be void as of the date of the final
distribution by the Owner Trustee of all the assets in the Trust Estate pursuant
to this Section 8.1 and Section 4.2. After payment of all amounts then due and
payable to the Bank pursuant to Sections 7.1 and 7.2 hereof, all right, title
and interest in the Trust Estate still held by the Owner Trustee at the time of
such termination shall be transferred, assigned and paid over to the
Certificateholders and their respective designees.
The Certificateholders hereby irrevocably appoint the Owner
Trustee as its attorney-in-fact for the purposes of the terminating the Owner
Trust.
SECTION 8.2 FURTHER ASSURANCES BY THE OWNER TRUSTEE
UPON TERMINATION.
Upon termination of the Owner Trust, the Owner Trustee shall
take such action as may be requested by the Certificateholders to transfer the
remaining assets of the Owner Trust to the Certificateholders or their
respective designees, including the execution of instruments of transfer or
assignment with respect to the Mortgage Loans and any of the Operative
Agreements to which the Owner Trust or the Owner Trustee is a party.
SECTION 8.3 INSOLVENCY OF A CERTIFICATEHOLDER. The insolvency
or other similar incapacity of a Certificateholder shall not (i) operate to
terminate this Agreement, (ii) entitle the Certificateholder's legal
representatives to claim an accounting or to take any action in any court for a
partition or winding up of the Trust Estate or (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
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ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 RESIGNATION OF THE OWNER TRUSTEE;
APPOINTMENT OF SUCCESSOR.
(a) The Owner Trustee may resign at any time (and shall
immediately resign if it ceases to be an Eligible Trustee) by giving at least 60
days prior written notice to the Certificateholders and the Company as provided
herein, to the Manager as provided in the Management Agreement and to the
Indenture Trustee, the Master Servicer and the Special Servicer as provided in
the Servicing Agreement, such resignation to be effective on the acceptance of
appointment by a successor Owner Trustee under Section 9.1(b) hereof. The
Company shall remove the Owner Trustee by written notice, a copy of which shall
be concurrently delivered by the Company to the Certificateholders, the Manager,
the Indenture Trustee and the Master Servicer, the Special Servicer as provided
above, if the Owner Trustee ceases to be an Eligible Trustee and fails to resign
immediately. The Owner Trustee otherwise may be removed with or without cause at
any time by the Certificateholders with 60 days prior written notice, a copy of
which shall be concurrently delivered by the Certificateholders to the Company,
the Manager, the Indenture Trustee, the Master Servicer and the Special Servicer
as provided above. Any such removal shall be effective upon the acceptance of
appointment by a successor Owner Trustee under Section 9.1(b) hereof. In case of
the resignation or removal of the Owner Trustee, the Company may appoint a
successor Owner Trustee by an instrument signed by the Company. If a successor
Owner Trustee shall not have been appointed within 60 days after the giving of
written notice of such resignation or the delivery of the written instrument
with respect to such removal, the Owner Trustee may apply to any court of
competent jurisdiction to appoint a successor Owner Trustee to act until such
time, if any, as a successor shall have been appointed and shall have accepted
its appointment as above provided. Any successor Owner Trustee so appointed by
such court shall immediately and without further act be superseded by any
successor Owner Trustee appointed as above provided within one year from the
date of the appointment by such court.
(b) Any successor Owner Trustee, however appointed, shall
execute and deliver to the predecessor Owner Trustee and the Company as provided
herein, to the Manager as provided in the Management Agreement and to the
Indenture Trustee, the Master Servicer and the Special Servicer as provided in
the Servicing Agreement an instrument accepting such appointment and shall
furnish copies of such instrument to the Certificateholders, and thereupon such
successor Owner Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trusts of the predecessor Owner
Trustee herein; but nevertheless, upon the written request of such successor
Owner Trustee, such predecessor Owner Trustee shall execute and deliver an
instrument transferring to such successor Owner Trustee, upon the trusts herein
expressed, all the estates, properties, rights, powers, duties and trusts of
such predecessor Owner Trustee and such predecessor Owner Trustee shall duly
assign, transfer, deliver and pay over to such successor Owner Trustee all
moneys or other property then held by such predecessor Owner Trustee upon the
trusts herein expressed.
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(c) Any successor Owner Trustee shall be an Eligible Trustee
and shall be willing, able and legally qualified to perform the duties of the
Owner Trustee hereunder.
(d) Any corporation into which the Owner Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Owner Trustee shall be
a party, or any corporation to which substantially all the corporate trust
business of the Owner Trustee may be transferred, shall, subject to the terms of
Section 9.1(c) hereof, be the Owner Trustee under this Agreement without any
further act.
SECTION 9.2 CO-TRUSTEES AND SEPARATE TRUSTEES. Whenever the
Owner Trustee or the Indenture Trustee shall deem it necessary or prudent in
order to conform to any law of any jurisdiction in which all or any part of the
Trust Estate shall be situated or to make any claim or be a party to any suit
with respect to the Trust Estate, the Owner Trust Certificates, the Bonds or any
Operative Agreement, or the Owner Trustee or the Indenture Trustee shall be
advised in writing by counsel reasonably satisfactory to each of them that it is
so necessary or prudent, the Owner Trustee and the Certificateholders shall
execute and deliver an agreement supplemental hereto and all other instruments
and agreements, and shall take all other action, necessary or proper to
constitute one or more Persons or entities, who need not meet the requirements
of Section 9.1(c) hereof (and the Owner Trustee may appoint one or more of its
Responsible Officers), either as co-trustees or co-trustees jointly with the
Owner Trustee of all or any part of the Trust Estate, or as separate trustee or
separate trustees of all or any part of the Trust Estate, and to vest in such
persons or entities, in such capacity, such title to the Trust Estate or any
part thereof and such rights or duties as may be necessary or desirable, all for
such period and under such terms and conditions as are reasonably satisfactory
to the Owner Trustee and the Certificateholders. In case any co-trustee or
separate trustee shall die, become incapable of acting, resign or be removed,
the title to the Trust Estate and all rights and duties of such co-trustee or
separate trustee shall, so far as permitted by law, vest in and be exercised by
the Owner Trustee, without the appointment of a successor to such co-trustee or
separate trustee.
SECTION 9.3 NOTICE. At all times that a successor Owner
Trustee is appointed under Section 9.1 hereof, an Owner Trustee resigns pursuant
to such Section 9.1 or a co-trustee or separate trustee is appointed pursuant to
Section 9.2 hereof, the Owner Trustee shall promptly give notice of such fact to
the Rating Agencies, if the Indenture has not been discharged.
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ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 SUPPLEMENTS AND AMENDMENTS. Subject to Sections
10.2 and 10.3 of this Agreement, this Agreement may be amended, with the consent
of the Holders of the Owner Trust Certificates, by a written instrument signed
by the Company and the Owner Trustee, but if in the opinion of the Owner Trustee
any instrument required to be so executed materially and adversely affects any
right, duty or liability of, or immunity or indemnity in favor of the Bank or
the Owner Trustee under this Agreement or any of the other Operative Agreements
to which it or the Owner Trust is a party, or would cause or result in any
conflict with or breach of any terms, conditions or provisions of, or a default
under, the Bank's charter documents or by-laws or any document contemplated
hereby to which the Owner Trust or the Owner Trustee is a party, the Owner
Trustee may in its sole discretion decline to execute such instrument, unless
the Owner Trustee shall have been provided an indemnity that is satisfactory to
it.
In the event that there is more than one Holder of Owner Trust
Certificates (as shown on the Certificate Register), the consent to an amendment
by Certificateholders entitled to a majority of the aggregate of all Voting
Rights allocable to the Owner Trust Certificates shall be sufficient to bind all
of such Holders; PROVIDED, HOWEVER, that no such amendment shall: (i) reduce in
any manner the amount of, or delay the timing of, distributions required to be
made on any Owner Trust Certificate without the consent of the affected Holder;
(ii) adversely affect in any material respect the interests of the Holders of
any Class of Owner Trust Certificates in a manner other than as described in
clause (i) above without the consent of the Holders of all Owner Trust
Certificates of such Class; or (iii) amend this Section 10.1 without the consent
of the Holders of all Owner Trust Certificates then outstanding.
SECTION 10.2 LIMITATION ON AMENDMENTS. Notwithstanding Section
10.1 and Section 10.3 hereof, the Owner Trustee shall not, without the consent
of the Indenture Trustee, amend Section 8.1 of this Agreement, or execute any
amendment that might result in the Owner Trust being terminated prior to the
satisfaction and discharge of the Lien of the Indenture on the Trust Estate or
otherwise have a material adverse effect on the Bondholders prior to the payment
in full of the principal of and interest on the Bonds. Furthermore,
notwithstanding Section 10.1 and Section 10.3 hereof, the Owner Trustee shall
not execute any amendment without obtaining written confirmation from the Rating
Agencies that such amendment will not result in the qualification, downgrade or
withdrawal of any of the then-current ratings on the Bonds.
SECTION 10.3 ADDITIONAL AMENDMENT PROVISIONS. (a) It shall not
be necessary for the consent of the Certificateholders under this Article X to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof shall be subject to such reasonable regulations as the Owner Trustee may
prescribe.
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(b) The Owner Trustee, at any time from time to time, without
the consent of the Certificateholders, may amend this Agreement to modify,
eliminate or add to any of its provisions, to such extent as shall be necessary
to prevent or reduce the imposition on the Owner Trust of any material federal,
state or local taxes, at all time prior to the liquidation of the Owner Trust;
PROVIDED, HOWEVER, that such action, as evidenced by an Opinion of Counsel
acceptable to the Owner Trustee, is necessary or helpful to prevent the
imposition on the Owner Trust of any such taxes.
(c) Prior to the execution of any amendment to this Agreement,
the Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel, at the expense of the party requesting such amendment (or, if such
amendment is requested by the Owner Trustee, then at the expense of the Owner
Trust) stating that the execution of such amendment is authorized or permitted
by this Agreement.
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ARTICLE XI
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY
SECTION 11.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants as follows for the
benefit of the Indenture Trustee, the Bondholders, the Owner Trustee and the
Certificateholders:
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
California, has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and any and all other
documents to be executed or delivered by it in connection with this
Agreement, and to fulfill its obligations under and to consummate the
transactions contemplated by this Agreement, and this Agreement and
such other documents executed in connection herewith are the legal,
valid and binding obligations of the Company, enforceable against it in
accordance with their respective terms, except as such terms may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors generally and by general
principles of equity;
(ii) the execution and delivery of this Agreement and each
other document to be executed or delivered by it in connection with
this Agreement, and the performance of its obligations hereunder and
thereunder by the Company, will not violate the provisions of its
certificate of incorporation or bylaws, conflict with any provision of
any law or regulation to which it is subject, or conflict with, result
in a breach of or constitute a default under any of the terms,
conditions or provisions of any agreement or instrument to which the
Company is a party or by which it is bound, or any order or decree
applicable to the Company, or result in the creation or imposition of
any Lien on any of the Company's assets or property, which would
materially and adversely affect the ability of the Company to carry out
the transactions contemplated by this Agreement or such other documents
executed in connection herewith, and no consent, approval,
authorization or order of or filing with or notice to any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of this Agreement or such other documents;
and
(iii) there is no action, suit or proceeding pending against
the Company in any court or by or before any other governmental agency
or instrumentality which would materially and adversely affect the
validity of this Agreement or the ability of the Company to carry out
the transactions contemplated by this Agreement.
(iv) immediately following the transfer of the Mortgage Loans
from Impac Commercial Assets Corp., the Company held good title to, and
was the sole owner of, each Mortgage Loan and had full right, power and
authority to transfer and assign each of the Mortgage Loans.
34
(b) It is understood and agreed that each of the foregoing
representations and warranties of the Company shall survive delivery of the
Mortgage Loans to the Owner Trustee on behalf of the Owner Trust. Upon discovery
or receipt of notice by the Company or a Responsible Officer of the Owner
Trustee of a breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
party hereto and to the Indenture Trustee on behalf of the Bondholders.
SECTION 11.3 ACCRUED INTEREST, ETC. The Company agrees that
any income, interest, fees and other payments that it may receive in respect of
the Mortgage Loans applicable to a period subsequent to the Cut-off Date shall
inure to the benefit of the Owner Trust, and the Company shall pay such amounts
to the Master Servicer for deposit in the Collection Account promptly upon
receipt.
SECTION 11.4 ADDITIONAL COVENANTS OF THE COMPANY. The Company
hereby covenants and agrees that:
(a) The business and affairs of the Company shall be managed
by or under the direction of its board of directors in accordance with
its certificate of incorporation and by-laws. The Company shall keep
correct and complete books and records of accounts and minutes of the
meetings and other proceedings of the board of directors. Any such
resolutions, agreements and other instruments shall be continuously
maintained as official records by the Company.
(b) The Company shall at all times ensure that its
capitalization is adequate in light of its business and purposes. The
Company shall pay from its own funds and assets (and not the Owner
Trust's) all obligations and indebtedness incurred by it.
(c) The Company shall not conduct its business in the name of
the Owner Trust.
(d) The Company shall not guarantee any obligations of the
Owner Trust (including the Bonds or the distributions to be made on the
Owner Trust Certificates). The Company shall not operate or purport to
operate as an integrated, single economic unit with respect to the
Owner Trust or seek or obtain credit or incur any obligation to any
third party based on the assets of the Owner Trust or induce any such
third party to reasonably rely on the creditworthiness of the Owner
Trust in connection therewith.
(e) The accounting records of the Company shall disclose the
effect of the transactions in accordance with GAAP and relevant
pronouncements.
(f) The Company hereby acknowledges, and agrees for the
benefit of the Indenture Trustee, the Bondholders, the Owner Trustee
and the Certificateholders to perform, each obligation imposed upon it
under the Indenture.
SECTION 11.5 LIMITATION ON LIABILITY OF THE COMPANY.
35
Neither the Company nor any of the directors, officers,
employees, agents or Control Persons of the Company, shall be under any
liability to the Owner Trust or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment. The Company, and any director, officer,
employee or agent of the Company may rely in good faith on any document of any
kind which, PRIMA FACIE, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Company and any director, officer,
employee, agent or Control Person of the Company shall be indemnified and held
harmless by the Owner Trust against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement, the Indenture, the
Owner Trust Certificates, the Bonds or any agreement related to any of the
foregoing other than any loss, liability or expense incurred by reason of
misfeasance, bad faith or gross negligence of the Company in the performance of
obligations or duties hereunder. The Company shall be under no obligation to
appear in, prosecute or defend any legal action unless such action is related to
its duties under this Agreement and which in its opinion does not involve it in
any expense or liability; provided, however, that the Company may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Owner Trust, and the Company shall be
entitled to seek reimbursement and be reimbursed therefor from the Collection
Account as provided in Section 3.05 of the Servicing Agreement.
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ARTICLE XII
TRANSFER OF OWNER TRUST CERTIFICATES
SECTION 12.1 REGISTRATION OF TRANSFER AND EXCHANGE OF OWNER
TRUST CERTIFICATES.
(a) At all times during the term of this Agreement, there
shall be maintained at the office of a registrar appointed by the Company (the
"Certificate Registrar") a register (the "Certificate Register") in which,
subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of Owner
Trust Certificates and of transfers and exchanges of Owner Trust Certificates as
herein provided. The Owner Trustee is hereby initially appointed (and hereby
agrees to act in accordance with the terms hereof) as Certificate Registrar for
the purpose of registering Owner Trust Certificates and transfers and exchanges
of Owner Trust Certificates as herein provided. The Owner Trustee may appoint,
by a written instrument delivered to the Company, any other bank or trust
company to act as Certificate Registrar under such conditions as the Owner
Trustee may prescribe, provided that the Owner Trustee shall not be relieved of
any of its duties or responsibilities hereunder as Certificate Registrar by
reason of such appointment. If the Owner Trustee resigns or is removed in
accordance with the terms hereof, the successor trustee shall immediately
succeed to its predecessor's duties as Certificate Registrar. The Company, the
Manager, the Owner Trustee, the Indenture Trustee, the Master Servicer and the
Special Servicer shall have the right to inspect the Certificate Register or to
obtain a copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register. The Certificate Registrar shall notify the Company, the
Manager, the Owner Trustee, the Indenture Trustee, the Master Servicer and the
Special Servicer in writing of the identity of each Holder of an Owner Trust
Certificate on the Record Date subsequent to a transfer pursuant to Article XII
herein.
(b) No transfer of any Owner Trust Certificate or interest
therein shall be made unless that transfer is made pursuant to an effective
registration statement under the Securities Act, and effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. If any
such transfer of an Owner Trust Certificate held by the related transferor is to
be made without registration under the Securities Act (other than in connection
with the initial issuance thereof to the Company), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit C-1 hereto or such other certification reasonably acceptable
to the Owner Trustee; (ii) a certificate from such Certificateholder
substantially in the form attached as Exhibit C-2 hereto or such other
certification reasonably acceptable to the Owner Trustee and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as Exhibit D-1 or, in the case of the Class P Certificates, Exhibit D-2
hereto or such other certification reasonably acceptable to the Owner Trustee;
or (iii) an Opinion of Counsel reasonably satisfactory to the Owner Trustee to
the effect that such transfer may be made without registration under the
Securities Act (which Opinion of
37
Counsel shall not be an expense of the Owner Trust or of the Company, the
Manager, the Owner Trustee, the Indenture Trustee, the Master Servicer, the
Special Servicer or the Certificate Registrar in their respective capacities as
such), together with the written certifications as to the facts surrounding such
transfer from the transferor and the prospective transferee on which such
Opinion of Counsel is based. None of the Company, the Manager, the Owner
Trustee, the Indenture Trustee, the Master Servicer, the Special Servicer, the
Certificate Registrar or any other person shall be obligated to register or
qualify any Class of Owner Trust Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Owner Trust Certificate or interest
therein without registration or qualification. Any Certificateholder desiring to
effect such a transfer shall, and does hereby agree to, indemnify the Company,
the Manager, the Owner Trustee, the Indenture Trustee, the Master Servicer, the
Special Servicer, the Fiscal Agent and the Certificate Registrar against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(c) No transfer of an Owner Trust Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx plans
and bank collective investment funds, insurance company general and separate
accounts and other entitites in which such plans, accounts or arrangements are
invested, that is subject to Section 406 of ERISA or Section 4975 of the Code
(each, a "Plan"), or to any Person who is directly or indirectly purchasing such
Owner Trust Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan, unless the prospective transferee
provides the Certificate Registrar with (i) a certification substantially in the
form of paragraph 1 of Exhibit D-3 attached hereto and an Opinion of Counsel
which establishes to the reasonable satisfaction of the Owner Trustee that such
transfer is permissible under applicable law, will not result in any prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will not
subject the Company, the Manager, the Owner Trustee, the Indenture Trustee, the
Master Servicer, the Special Servicer or the Certificate Registrar to any
obligation in addition to those undertaken in this Agreement and the other
Operative Agreements or (ii) a certification substantially in the form of
paragraph 1 of Exhibit D-3 attached hereto to the foregoing effect and to the
effect that (A) the purchaser is an insurance company and the source of funds
used to purchase such Owner Trust Certificate is an "insurance company general
account" (as such term is defined in PTCE 95-60), (B) the conditions set forth
in Sections I and III of PTCE 95-60 have been satisfied and will continue to be
satisfied and (C) there is no Plan with respect to which the amount of such
general account's reserves and liabilities for contracts held by or on behalf of
such Plan and all other Plans maintained by the same employer (or any
"affiliate" thereof, as defined in PTCE 95-60) or by the same employee
organization exceed 10% of the total of all reserves and liabilities of such
general account (as determined under PTCE 95-60) as of the date of the
acquisition of such Owner Trust Certificate. Each Person who acquires any Owner
Trust Certificate or interest therein (unless it shall have delivered the
documents referred to in the preceding sentence) shall be required to deliver to
the Certificate Registrar a certification to the effect set forth in paragraph 2
of Exhibit D-3 attached hereto.
38
(d) No transfer of an Owner Trust Certificate or any interest
therein shall be made to any prospective transferee unless such transferee
provides the Certificate Registrar with (i) a transferee letter, substantially
in the form of Exhibit D-4 attached hereto, to the effect that such transferee
is a REIT or a QRS under the Code and that, for so long as it retains its
interest in such Owner Trust Certificate, it shall endeavor to remain a REIT or
a QRS under the Code, among other things, (ii) an Independent Opinion of Counsel
which establishes to the reasonable satisfaction of the Owner Trustee that such
transfer would not cause the Owner Trust to cease to be treated as a QRS under
the Code and could not result in the imposition of an entity-level tax on the
Owner Trust to which REITs and QRSs are not otherwise subject under the Code and
(iii) written confirmation from each Rating Agency to the effect that such
transfer would not cause such Rating Agency to downgrade, qualify or withdraw
any rating then assigned by such Rating Agency to any Class of Bonds.
(e) Each Owner Trust Certificate shall bear a legend
describing or referencing the restrictions on transferability set forth in
Sections 12.1(b), (c) and (d).
(f) Subject to compliance with Sections 12.1(b), (c) and (d),
upon surrender for registration of transfer of any Owner Trust Certificate at
the office of the Certificate Registrar or its agent in the City of New York,
the Owner Trustee shall execute, and the Certificate Registrar shall deliver and
authenticate, in the name of the designated transferee or transferees, one or
more new Owner Trust Certificates of the same Class, in authorized
denominations, evidencing in the aggregate a like aggregate Percentage Interest
and dated the date of authentication by the Certificate Registrar.
(g) At the option of any Certificateholder, Owner Trust
Certificates may be exchanged for other Owner Trust Certificates of the same
Class, in authorized denominations, evidencing in the aggregate a like aggregate
Percentage Interest upon surrender of the Owner Trust Certificates to be
exchanged at the office of the Certificate Registrar or its agent in the City of
New York. Whenever any Owner Trust Certificates are so surrendered for exchange,
the Owner Trustee shall execute and the Certificate Registrar shall authenticate
and deliver, the Owner Trust Certificates which the Certificateholder is
entitled to receive.
(h) If the Owner Trustee or the Certificate Registrar so
requires, every Owner Trust Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Owner Trustee
and the Certificate Registrar duly executed by, the Certificateholder thereof or
such person's attorney duly authorized in writing.
(i) No service charge shall be made to the requesting
Certificateholder for any registration of transfer or exchange of Owner Trust
Certificates, but 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 registration of transfer or exchange of Owner Trust
Certificates.
39
(j) The Certificate Registrar shall cancel and retain or
destroy, in accordance with the Owner Trustee's retention policy then in effect,
all Owner Trust Certificates surrendered
for registration of transfer or exchange.
SECTION 12.2 MUTILATED, DESTROYED, LOST OR STOLEN OWNER TRUST
CERTIFICATES.
If (i) any mutilated Owner Trust Certificate is surrendered to
the Owner Trustee or the Certificate Registrar, or the Owner Trustee and the
Certificate Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Owner Trust Certificate, and (ii) there is delivered to the
Owner Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
knowledge by a Responsible Officer of the Owner Trustee or the Certificate
Registrar that such Owner Trust Certificate has been acquired by a bona fide
purchaser, the Owner Trustee shall execute and the Certificate Registrar shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Owner Trust Certificate, a new Owner Trust Certificate
of like Class and tenor. Upon the issuance of any new Owner Trust Certificate
under this Section 12.2, the Owner Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Certificate Registrar) connected therewith. Any replacement Owner Trust
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership of the corresponding interest in the Owner
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Owner Trust Certificate shall be found at any time and such original Owner Trust
Certificate shall thereby be deemed canceled.
SECTION 12.3 PERSONS DEEMED OWNERS. Prior to due presentation
of an Owner Trust Certificate for registration of transfer, the Company, the
Manager, the Owner Trustee, the Indenture Trustee, the Master Servicer, the
Special Servicer and the Certificate Registrar, and any agent of any of them,
may treat the person or entity in whose name any Owner Trust Certificate is
registered as the owner of such Owner Trust Certificate for the purpose of
receiving distributions pursuant to Section 4.2 hereof and for all other
purposes whatsoever, and neither the Company, the Manager, the Owner Trustee,
the Indenture Trustee, the Master Servicer, the Special Servicer and the
Certificate Registrar, nor any agent of any of them, shall be affected by notice
to the contrary.
SECTION 12.4 ACCESS TO NAMES AND ADDRESSES.
(a) If any Certificateholder (an "Applicant") applies in
writing to the Owner Trustee, and such application states that the Applicant
desires to communicate with other Certificateholders with respect to their
rights under this Agreement or the Owner Trust Certificates and is accompanied
by a copy of the communication which such Applicant proposes to transmit, then
the Owner Trustee shall, at the expense of such Applicant, within ten (10)
Business Days after the receipt of such application, furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as set forth in the Certificate Register.
40
(b) Every Certificateholder consents to the disclosure to any
Applicant of its identity and status as a Certificateholder and agrees with the
Owner Trustee that the Owner Trustee and the Certificate Registrar shall not be
held accountable in any way by reason of the disclosure of any information as to
the names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
SECTION 12.5 ACTIONS OF CERTIFICATEHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by agent duly appointed in writing, and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Owner Trustee. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and conclusive in favor of the Owner Trustee, if made
in the manner provided in this Section 12.5.
(b) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Owner Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by a Certificateholder shall bind every
transferee of every Owner Trust Certificate issued upon the registration of
transfer of such Certificateholder's Owner Trust Certificate or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done,
by the Owner Trustee, in reliance thereon, whether or not notation of such
action is made upon such Owner Trust Certificate.
(d) The Owner Trustee may require such additional proof of any
matter referred to in this Section 12.5 as it shall reasonably deem necessary.
SECTION 12.6 TRANSFEREE'S AGREEMENT. No assignment, conveyance
or other transfer pursuant to this Article XII shall be effective unless the
transferee shall have executed and delivered to the Owner Trustee an instrument
containing the transferee's agreement to be bound by the terms of this
Agreement.
41
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NO LEGAL TITLE TO TRUST ESTATE IN
CERTIFICATEHOLDERS. The Certificateholders shall not have legal title to any
part of the Trust Estate; PROVIDED, HOWEVER, that the Certificateholders have a
beneficial interest in the Trust Estate (and initially shall have all right,
title and interest in and to the Owner Trust Certificates). No transfer by
operation of law or otherwise of any right, title or interest of the
Certificateholders in and to the Trust Estate or hereunder shall operate to
terminate this Agreement or the Owner Trust or the trusts hereunder or entitle
any successor or transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 13.2 ACTION BY THE OWNER TRUSTEE IS BINDING. Any
actions, directions, approvals or consents by the Owner Trustee so long as such
actions, directions, consents or approvals are made pursuant to the terms of
this Agreement shall bind the Certificateholders and shall be effective to
consent to action taken by the parties. No such party shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
consent by the Owner Trustee.
SECTION 13.3 LIMITATION ON RIGHTS OF OTHERS. Nothing in this
Agreement, whether express or implied, shall be construed to give to any person
or entity, other than the Bank, the Owner Trustee, the Company, the Manager, the
Certificateholders and the Indenture Trustee on behalf of the Bondholders any
legal or equitable right, remedy or claim under or in respect of this Agreement.
SECTION 13.4 NOTICES. All demands, notices and other
communications hereunder shall be in writing and, unless otherwise provided
herein, shall be deemed to have been duly given if delivered by courier or
mailed by first class mail, postage prepaid, or if transmitted by telecopier and
confirmed in a writing delivered or mailed as aforesaid, to (i) in the case of
the Bank and the Owner Trustee, Wilmington Trust Company, Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Trust Administration, Telecopy Number: (000) 000-0000, Telephone Number: (302)
000-0000, (ii) in the case of the Indenture Trustee, LaSalle National Bank, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Asset
Backed Securities Trust Services Group - Impac CMB Trust 1998-C1, telecopy
number: (000) 000-0000, (iii) in the case of the Company, IMH Assets Corp.,
00000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxxx Xxxxxxx, telecopy number: (000) 000-0000, telephone number: (714)
000-0000, (iv) in the case of each Rating Agency, the address specified in the
Servicing Agreement, and (v) in the case of a Certificateholder, the name and
address of such Certificateholder as set forth in the Certificate Register, or
in each case, to such other address as any of them shall specify by written
notice to the parties hereto.
42
SECTION 13.5 SEVERABILITY. To the extent permitted by law, any
provision of this Agreement that may be determined by competent authority to be
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 13.6 LIMITATION ON THE COMPANY'S LIABILITY. The
Company shall not have any liability for the performance of this Agreement
except as expressly set forth herein.
SECTION 13.7 SEPARATE COUNTERPARTS. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 13.8 SUCCESSORS AND ASSIGNS. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Bank, the Owner Trustee and its successors and assigns, the
Certificateholders and the Company and its or their respective successors and
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by the Company shall bind the successors and
assigns of the Company and any request, notice, direction, consent, waiver or
other instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder. It is the intention of the parties hereto
that the Owner Trust constitute a trust formed pursuant to the laws of the State
of Delaware with the purpose of facilitating the transactions contemplated by
the Operative Agreements.
SECTION 13.9 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 provision hereof.
SECTION 13.10 GOVERNING LAW. THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE.
SECTION 13.11 ADMINISTRATION OF OWNER TRUST. The principal
place of administration of the Owner Trust shall be in Delaware.
SECTION 13.12 PERFORMANCE BY THE COMPANY OR MANAGER. Any
obligation of the Owner Trustee hereunder or under any Operative Agreement or
other document contemplated herein may be performed by the Company or the
Manager and any such performance shall not be construed as a revocation of the
trusts created hereby.
SECTION 13.13 NO IMPLIED WAIVER. No term or provision of this
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing entered into as provided in Section 10.1 hereof, and
any such waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
43
SECTION 13.14 THIRD PARTY BENEFICIARY. The Manager and
Indenture Trustee for the benefit of the Bondholders is an intended third-party
beneficiary of this Agreement from and including the date hereof to the date on
which the Lien on the Trust Estate created pursuant to the Indenture is
satisfied, discharged and released pursuant to Article III of the Indenture.
SECTION 13.15 REFERENCES. The definitions in Article I shall
apply equally to both the singular and plural forms of the terms defined.
"Include", "included", "includes" and "including" shall be deemed to be followed
by "without limitation". "Writing", "written" and comparable terms refer to
printing, typing, lithography or other means of reproducing words in a visible
form. Any agreement or instrument or any law, rule or regulation of any
Governmental Authority defined or referred to in Article I means such agreement
or instrument or such law, rule or regulation as from time to time amended,
modified or supplemented in accordance with the terms thereof, including (in the
case of agreements or instruments) by waiver or consent and (in the case of such
law, rule or regulation) by succession of any comparable successor law, rule or
regulation 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 successors and permitted assigns. Any term defined above
by reference to any agreement or instrument or any law, rule or regulation of
any Governmental Authority has such meaning whether or not such agreement,
instrument or law, rule or regulation is in effect. "Agreement", "hereof",
"herein", "hereto", "hereunder" and comparable terms refer to this Agreement
(including all exhibits and schedules hereto) and not to any particular article,
section, clause or other subdivision hereof or attachment hereto. References to
any gender include, unless the context otherwise requires, references to all
genders, and references to the singular include, unless the context other
requires, references to the plural and vice versa. References in this Agreement
to "Article", "Section", "Clause" or another subdivision or to an attachment
are, unless the context otherwise requires, to an article, clause or subdivision
of or attachment to this Agreement.
44
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the date hereof.
IMH ASSETS CORP.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: President
WILMINGTON TRUST COMPANY
By: /s/ Xxxxx Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
Title: Vice President
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On the __th day of August, 1998 before me, a notary public in
and for said State, personally appeared , known to me to be a of IMH
------ -----
Assets Corp., the California corporation that executed the within agreement, and
also known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within agreement.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the __th day of August, 1998 before me, a notary public in
and for said State, personally appeared , known to me to be a of
------ ----
Wilmington Trust Company, the Delaware bank and trust company that executed the
within agreement, and also known to me to be the person who executed it on
behalf of said bank and trust company, and acknowledged to me that such bank and
trust company executed the within agreement.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS P OWNER TRUST CERTIFICATE
IMPAC CMB TRUST 1998-C1
CLASS P OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid 100% interest
in the Class P Owner Trust Certificates, which,
collectively with the Class XS and Class R Owner
Trust Certificates, evidence the entire beneficial
ownership interest in Impac CMB Trust 1998-C1, a
Delaware business trust whose assets include certain
commercial mortgages (the "Mortgage Loans") deposited
by IMH Assets Corp. (the "Company")
Certificate Interest Rate: ____% per annum Aggregate Principal Balance of the
Class P Owner Trust Certificates as of
the Closing Date: $___________
Date of Owner Trust
Agreement: August 1, 1998 Percentage Interest in Related Class
Evidenced by this Class P Owner
Closing Date: August 26, 1998 Trust Certificate: 100%
First Payment Date: September 21, 1998
Owner Trustee: Wilmington Trust Company
Depositor and Initial Holder
Owner Trust Certificates:
Owner Trust Certificate No. ___
-2-
THIS OWNER TRUST CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12.1 OF
THE OWNER TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS OWNER TRUST CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 12.1 OF THE OWNER TRUST AGREEMENT REFERRED TO HEREIN.
THIS OWNER TRUST CERTIFICATE MAY NOT BE TRANSFERRED UNLESS (A) THE PROSPECTIVE
TRANSFEREE FURNISHES AN OPINION OF COUNSEL WHICH ESTABLISHES THAT, UPON
TRANSFER, THIS CERTIFICATE WILL BE CHARACTERIZED AS INDEBTEDNESS FOR FEDERAL
INCOME TAX PURPOSES OR (B) SUCH TRANSFEREE FURNISHES THE INVESTMENT
REPRESENTATIONS, OPINION OF COUNSEL AND RATING AGENCY CONFIRMATIONS DESCRIBED
HEREIN.
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION
OF, THE COMPANY, THE OWNER TRUSTEE OR THE INDENTURE TRUSTEE, ANY OF THEIR
RESPECTIVE AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE
NOR THE MORTGAGE LOANS ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER
RESTRICTIONS DESCRIBED HEREIN.
PAYMENTS ON THIS OWNER TRUST CERTIFICATE WILL BE MADE IN THE MANNER
DESCRIBED IN THE OWNER TRUST AGREEMENT.
This Owner Trust Certificate is issued pursuant to, and in accordance
with, the terms of a Owner Trust Agreement, dated as of August 1, 1998 (the
"Owner Trust Agreement"; terms not otherwise defined herein shall have the
meanings assigned to those terms in the Owner
-3-
Trust Agreement), between IMH Assets Corp. as depositor (the "Company") and
initial Owner Trust Certificateholder and Wilmington Trust Company as Owner
Trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which are set forth herein. This Owner Trust Certificate is issued under and
is subject to the terms, provisions and conditions of the Owner Trust Agreement,
to which Owner Trust Agreement the holder of this Owner Trust Certificate by
virtue of the acceptance hereof assents and by which such Owner Trust
Certificateholder is bound. In the event of a conflict between the provisions of
this Owner Trust Certificate and those of the Owner Trust Agreement, the
provisions of the Owner Trust Agreement shall control.
This certifies that ____________________ is the registered owner of
the beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Owner Trust Agreement and designated as Impac CMB
Trust 1998-C1 (the "Trust"). The assets of the Trust include certain commercial
mortgage loans (the "Mortgage Loans").
Except to the extent of their execution and authentication,
respectively, of the Owner Trust Certificates, the Owner Trustee and the
Certificate Registrar make no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of this Owner Trust
Certificate or the Mortgage Loans. The Owner Trustee has executed this Owner
Trust Certificate in its limited capacity as Owner Trustee under the Owner Trust
Agreement, and the Certificate Registrar has authenticated this Owner Trust
Certificate in its limited capacity as Certificate Registrar under the Owner
Trust Agreement.
Payments on the Certificates will be made, to the extent of available
funds, on the 20th day of each month or, if any such day is not a Business Day,
then the next succeeding Business Day (each, a "Payment Date"), commencing in
September 1998. As more fully described in the Owner Trust Agreement, payments
allocable to interest on the Class P Certificates will be made on each Payment
Date up to an amount equal to the Accrued Certificate Interest in respect of the
Class P Certificates for the related Payment Date and, to the extent not
previously paid, for all prior Payment Dates. As and to the extent described in
the Owner Trust Agreement, payments of interest on the Class P Certificates will
be limited to the amount available for such purpose in the Certificate Account.
Such available funds will be distributed on each Payment Date on a PRO RATA
basis among the Holders of the Class P Certificates and the Holders of the Class
XS Certificates in respect of Accrued Certificate Interest.
Upon the retirement of all of the Bonds, the holders of the Class P
Certificates will receive payments in respect of principal on each Payment Date,
subsequent to the payments in respect of interest on the Class P and Class XS
Certificates as described in the previous paragraph, up to (subject to available
funds) an amount equal to the Aggregate Principal Amount of the Class P
Certificates immediately prior to such Payment Date.
Pursuant to the Owner Trust Agreement, all payments made with respect
to any Class of Owner Trust Certificates on any Payment Date shall be allocated
PRO RATA among such Owner Trust Certificates based upon their respective
Percentage Interests. Payments to the Owner Trust Certificateholders on each
Payment Date will be made to the Owner Trust Certificateholders
-4-
of record on the related Record Date. Payments to any Owner Trust
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Owner Trust Certificateholder
at a bank or other entity having appropriate facilities therefor, if such Owner
Trust Certificateholder shall have so notified the Owner Trustee in writing at
least five Business Days prior to the related Record Date and if such Owner
Trust Certificateholder is the registered owner of Owner Trust Certificates
representing at least a 33-1/3% Percentage Interest in any Class thereof, or
otherwise by check mailed by first class mail to the address of such Owner Trust
Certificateholder appearing in the Certificate Register. Final payment on each
Owner Trust Certificate will be made in like manner, but only upon presentment
and surrender of such Owner Trust Certificate at the Corporate Trust Office or
such other location specified in the notice to Owner Trust Certificateholders of
such final payment.
This Owner Trust Certificate is one of a duly authorized issue of
Owner Trust Certificates designated as Impac CMB Trust 1998-C1, Owner Trust
Certificates, representing a fractional undivided beneficial interest in a Trust
Estate consisting of (i) the Mortgage Loans and all payments and other
collections in respect of the Mortgage Loans received or due after the Cutoff
Date (exclusive of Principal Prepayments received prior to the Cut-off Date and
scheduled payments of interest and principal due on or before the Cut-off Date),
(ii) any real property acquired on behalf of the Issuer, (iii) such funds as
from time to time are deposited in the Collection Account, the REO Account and
accounts established under this Indenture and the Owner Trust Agreement for
purposes of making payments to the holders of the Bonds and distributions to the
holders of the Owner Trust Certificates, (iv) all present and future claims,
demands and causes and choses in action in respect of the foregoing, including
the rights, titles and interests of the Issuer in, to and under the Mortgage
Loans and (v) all proceeds of the foregoing of every kind and nature whatsoever,
including, without limitation, all proceeds of the conversion thereof, voluntary
or involuntary, into cash or other liquid property, all cash proceeds, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
rights to payment of any and every kind and other forms of obligations and
receivables, instruments and other property that at any time constitute all or
part of or are included in the proceeds of the foregoing ((i), (ii), (iii), (iv)
and (v), collectively, the "Trust Estate"), provided that the Owner Trust Estate
shall not include the right to receive Prepayment Premiums under the terms of
any of the Mortgage Loans.
This Owner Trust Certificate does not purport to summarize the Owner
Trust Agreement and reference is made to the Owner Trust Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced hereby and the rights, duties and immunities of the Owner Trustee.
No transfer of this Owner Trust Certificate or interest therein shall
be made unless the transfer is made pursuant to an effective registration
statement under the Securities Act, and effective registration or qualification
under applicable state securities laws, or is made in a transaction that does
not require such registration or qualification. If any such transfer of a Owner
Trust Certificate held by the related transferor is to be made without
registration under the
-5-
Securities Act (other than in connection with the initial issuance thereof to
the Company), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Owner Trust Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit C-1 to the
Owner Trust Agreement or such other certification reasonably acceptable to the
Owner Trustee; or (ii) a certificate from such Owner Trust Certificateholder
substantially in the form attached as Exhibit C-2 to the Owner Trust Agreement
or such other certification reasonably acceptable to the Owner Trustee and a
certificate from such Owner Trust Certificateholder's prospective transferee
substantially in the form attached as Exhibit D-1 or Exhibit D-2 to the Owner
Trust Agreement or such other certification reasonably acceptable to the Owner
Trustee; or (iii) an Opinion of Counsel reasonably satisfactory to the Owner
Trustee to the effect that such transfer may be made without registration under
the Securities Act (which Opinion of Counsel shall not be an expense of the
Owner Trust Estate or the Owner Trust or of the Company, the Manager, the Owner
Trustee, the Indenture Trustee, the Master Servicer, the Special Servicer or the
Certificate Registrar in their respective capacities as such), together with the
written certifications as to the facts surrounding such transfer from the
transferor and the prospective transferee on which such Opinion of Counsel is
based. None of the Company, the Manager, the Owner Trustee, the Indenture
Trustee, the Master Servicer, the Special Servicer, the Certificate Registrar or
any other person shall be obligated to register or qualify any Class of Owner
Trust Certificates under the Securities Act or any other securities law or to
take any action not otherwise required under this Agreement to permit the
transfer of any Owner Trust Certificate or interest therein without registration
or qualification. Any Owner Trust Certificateholder desiring to effect such a
transfer shall, and does hereby agree to, indemnify the Company, the Manager,
the Owner Trustee, the Indenture Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of this Owner Trust Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds, insurance company general and separate accounts and
other entities in which such plans, accounts or arrangements are invested, that
is subject to ERISA or the Code (each, a "Plan"), or to any Person who is
directly or indirectly purchasing such Owner Trust Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective transferee provides the Certificate Registrar with
(i) a certification substantially in the form of paragraph 1 of Exhibit D-3
attached to the Owner Trust Agreement and an Opinion of Counsel which
establishes to the reasonable satisfaction of the Owner Trustee that such
transfer is permissible under applicable law, will not result in any prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will not
subject the Company, the Manager, the Owner Trustee, the Indenture Trustee, the
Master Servicer, the Special Servicer or the Certificate Registrar to any
obligation in addition to those undertaken in the Owner Trust Agreement and the
other Operative Agreements or (ii) a certification substantially in the form of
paragraph 1 of Exhibit D-3 attached to the Owner Trust Agreement to the
foregoing effect and to the effect that (A) the purchaser is an insurance
company and the source of funds used to purchase such Owner Trust Certificate is
an "insurance company
-6-
general account" (as such term is defined in PTCE 95-60), (B) the conditions set
forth in Sections I and III of PTCE 95-60 have been satisfied and will continue
to be satisfied and (C) there is no Plan with respect to which the amount of
such general account's reserves and liabilities for contracts held by or on
behalf of such Plan and all other Plans maintained by the same employer (or any
"affiliate" thereof, as defined in PTCE 95-60) or by the same employee
organization exceed 10% of the total of all reserves and liabilities of such
general account (as determined under PTCE 95-60) as of the date of the
acquisition of such Owner Trust Certificate. Each Person who acquires any Owner
Trust Certificate or interest therein (unless it shall have delivered the
documents referred to in the preceding sentence) shall be required to deliver to
the Certificate Registrar a certification to the effect set forth in paragraph 2
of Exhibit D-3 to the Owner Trust Agreement.
No sale, transfer or other disposition of this Owner Trust Certificate
may be made, and the Certificate Registrar shall refuse to register any such
transfer, unless such transferee provides the Certificate Registrar with (i) a
transferee letter, substantially in the form of Exhibit D-4 attached to the
Owner Trust Agreement, to the effect that such transferee is a REIT or a QRS
under the Code and that, for so long as it retains its interest in such Owner
Trust Certificate, it shall endeavor to remain a REIT or a QRS under the Code,
among other things, (ii) an Opinion of Counsel which establishes to the
reasonable satisfaction of the Owner Trustee that such transfer would not cause
the Owner Trust to cease to be treated as a QRS under the Code and would not
result in the imposition of an entity-level tax on the Owner Trust to which
REITs and QRSs are not otherwise subject under the Code and (iii) the Owner
Trustee shall have received written confirmation from each of the Rating
Agencies to the effect that such sale, transfer or other disposition will not
result in the qualification, downgrade or withdrawal of any then current rating
on the Bonds.
Prior to transfer of this Owner Trust Certificate in accordance with
the foregoing and the Owner Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving payments pursuant to the Owner Trust
Agreement, pursuant to the Indenture and for all other purposes whatsoever, and
neither the Owner Trustee, the Indenture Trustee, the Certificate Registrar nor
any agent of any of them shall be affected by notice to the contrary.
As provided in the Owner Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Owner Trust Certificateholder surrendering the same.
No service charge will be made to a Owner Trust Certificateholder for
any such registration of transfer or exchange, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
-7-
The Owner Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Owner Trust Agreement and the modification of the
rights of the Owner Trust Certificateholders at any time by the Owner Trustee
with the consent of Owner Trust Certificateholders entitled to a majority of the
Voting Rights (except as provided in the Owner Trust Agreement). Any consent by
the Owner Trust Certificateholder of this Owner Trust Certificate shall be
conclusive and binding on such Owner Trust Certificateholder and upon all future
Owner Trust Certificateholders issued upon the transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent is made upon
this Owner Trust Certificate.
The obligations created by the Owner Trust Agreement shall not
terminate until the Bonds have been paid in full and the Lien on the Trust
Estate created by the Indenture has been released; provided, however, that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Unless the Certificate of Authentication on this Owner Trust
Certificate has been executed by or on behalf of the Certificate Registrar, by
manual signature, this Owner Trust Certificate shall not be entitled to any
benefit under the Owner Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
WILMINGTON TRUST COMPANY,
not individually, but solely in its capacity as
Owner Trustee
_______________________________________________
Authorized Officer
This is one of the Owner Trust Certificates referred to in the
within-referenced Owner Trust Agreement.
Date: August 26, 1998
WILMINGTON TRUST COMPANY
not individually, but solely in its capacity as
Certificate Registrar
_______________________________________________
Authorized Officer
-9-
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
________________________________________________________________ [(Please print
or typewrite name(s) and address(es), including postal zip code of assignee(s)]
("Assignee(s)") that portion of the interest in the Owner Trust represented by
the within Owner Trust Certificate set forth below and hereby authorize(s) the
transfer and registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Owner Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Owner
Trust represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address:_____________________________________________________________
_______________________________________________________________________________
__________; to issue a new Owner Trust Certificate of the same Class for the
remainder of the interest in the Trust represented by the within Owner Trust
Certificate to the Assignor(s) and deliver such Owner Trust Certificate to the
following address:_____________________________________________________________
_________________________________________________________________________ ; and
to cancel the within Owner Trust Certificate.
Date:___________________ ________________________________________
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred:____________ ________________________________________
Taxpayer Identification Number
EXHIBIT A-2
FORM OF CLASS XS OWNER TRUST CERTIFICATE
IMPAC CMB TRUST 1998-C1
CLASS XS OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid 100% interest in
the Class XS Owner Trust Certificates, which, collectively
with the Class P and Class R Owner Trust Certificates,
evidence the entire beneficial ownership interest in
Imperial CMB Trust 1998-1, a Delaware business trust whose
assets include certain commercial mortgage loans (the
"Mortgage Loans") deposited by IMH Assets Corp. (the
"Company")
Date of Owner Trust Percentage Interest in Related Class
Agreement: August 1, 1998 Evidenced by this Class XS Owner Trust
Certificate: _____
Closing Date: August 26, 1998
First Payment Date: September 21, 1998
Owner Trustee: Wilmington Trust Company
Depositor and Initial Holder of
the Owner Trust Certificates:
Owner Trust Certificate No. ___
-2-
THIS OWNER TRUST CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12.1 OF
THE OWNER TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS OWNER TRUST CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 12.1 OF THE OWNER TRUST AGREEMENT REFERRED TO HEREIN.
THIS OWNER TRUST CERTIFICATE MAY NOT BE TRANSFERRED UNLESS (A) THE PROSPECTIVE
TRANSFEREE FURNISHES AN OPINION OF COUNSEL WHICH ESTABLISHES THAT, UPON
TRANSFER, THIS CERTIFICATE WILL BE CHARACTERIZED AS INDEBTEDNESS FOR FEDERAL
INCOME TAX PURPOSES OR (B) SUCH TRANSFEREE FURNISHES THE INVESTMENT
REPRESENTATIONS, OPINION OF COUNSEL AND RATING AGENCY CONFIRMATIONS DESCRIBED
HEREIN.
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION
OF, THE COMPANY, THE OWNER TRUSTEE OR THE INDENTURE TRUSTEE, ANY OF THEIR
RESPECTIVE AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE
NOR THE MORTGAGE LOANS ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER RESTRICTIONS
DESCRIBED HEREIN.
PAYMENT ON THIS OWNER TRUST CERTIFICATE WILL BE MADE IN THE MANNER
DESCRIBED IN THE OWNER TRUST AGREEMENT.
This Owner Trust Certificate is issued pursuant to, and in accordance
with, the terms of a Owner Trust Agreement, dated as of August 1, 1998 (the
"Owner Trust Agreement"; terms not otherwise defined herein shall have the
meanings assigned to those terms in the Owner
-3-
Trust Agreement), between IMH Assets Corp. as depositor (in such capacity, the
"Company") and initial Owner Trust Certificateholder and Wilmington Trust
Company as Owner Trustee (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which are set forth herein. This Owner Trust Certificate
is issued under and is subject to the terms, provisions and conditions of the
Owner Trust Agreement, to which Owner Trust Agreement the holder of this Owner
Trust Certificate by virtue of the acceptance hereof assents and by which such
Owner Trust Certificateholder is bound. In the event of a conflict between the
provisions of this Owner Trust Certificate and those of the Owner Trust
Agreement, the provisions of the Owner Trust Agreement shall control.
This certifies that _________________ is the registered owner of the
beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Owner Trust Agreement and designated as Impac CMB
Trust 1998-C1 (the "Owner Trust"). The assets of the Trust include certain
commercial mortgage loans (the "Mortgage Loans").
Except to the extent of their execution and authentication,
respectively, of the Owner Trust Certificates, the Owner Trustee and the
Certificate Registrar make no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of this Owner Trust
Certificate or the Mortgage Loans. The Owner Trustee has executed this Owner
Trust Certificate in its limited capacity as Owner Trustee under the Owner Trust
Agreement, and the Certificate Registrar has authenticated this Owner Trust
Certificate in its limited capacity as Certificate Registrar under the Owner
Trust Agreement.
Payments on the Certificates will be made, to the extent of available
funds, on the 20th day of each month or, if any such day is not a Business Day,
then the next succeeding Business Day (each, a "Payment Date"), commencing in
September 1998. As more fully described in the Owner Trust Agreement, payments
allocable to interest accrued on the Class XS Certificates will be made on each
Payment Date up to the Accrued Certificate Interest in respect of the Class XS
Certificates for the related Payment Date and, to the extent not previously
paid, for all prior Payment Dates. As and to the extent described in the Owner
Trust Agreement, payments of interest on the Class XS Certificates will be
limited to the amount available for such purposes in the Certificate Account.
Such available funds will be distributed on each Payment Date on a pro rata
basis among the Holders of the Class P Certificates and the Holders of the Class
XS Certificates.
Pursuant to the Owner Trust Agreement, all payments made with respect
to any Class of Owner Trust Certificates on any Payment Date shall be allocated
PRO RATA among such Owner Trust Certificates based upon their respective
Percentage Interests. Payments to the Owner Trust Certificateholders on each
Payment Date will be made to the Owner Trust Certificateholders of record on the
related Record Date. Payments to any Owner Trust Certificateholder on any
Payment Date shall be made by wire transfer of immediately available funds to
the account of such Owner Trust Certificateholder at a bank or other entity
having appropriate facilities therefor, if such Owner Trust Certificateholder
shall have so notified the Owner Trustee in writing at least five Business Days
prior to the related Record Date and if such Owner Trust Certificateholder is
-4-
the registered owner of Owner Trust Certificates representing at least a 33-1/3%
Percentage Interest in any Class thereof, or otherwise by check mailed by first
class mail to the address of such Owner Trust Certificateholder appearing in the
Certificate Register. Final payment on each Owner Trust Certificate will be made
in like manner, but only upon presentment and surrender of such Owner Trust
Certificate at the Corporate Trust Office or such other location specified in
the notice to Owner Trust Certificateholders of such final payment.
This Owner Trust Certificate is one of a duly authorized issue of
Owner Trust Certificates designated as Impac CMB Trust 1998-C1, Owner Trust
Certificates, representing a fractional undivided beneficial interest in a Trust
Estate consisting of (i) the Mortgage Loans and all payments and other
collections in respect of the Mortgage Loans received or due after the Cutoff
Date (exclusive of Principal Prepayments received prior to the Cut-off Date and
scheduled payments of interest and principal due on or before the Cut-off Date),
(ii) any real property acquired on behalf of the Issuer, (iii) such funds as
from time to time are deposited in the Collection Account, the REO Account and
accounts established under this Indenture and the Owner Trust Agreement for
purposes of making payments to the holders of the Bonds and distributions to the
holders of the Owner Trust Certificates, (iv) all present and future claims,
demands and causes and choses in action in respect of the foregoing, including
the rights, titles and interests of the Issuer in, to and under the Mortgage
Loans and (v) all proceeds of the foregoing of every kind and nature whatsoever,
including, without limitation, all proceeds of the conversion thereof, voluntary
or involuntary, into cash or other liquid property, all cash proceeds, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
rights to payment of any and every kind and other forms of obligations and
receivables, instruments and other property that at any time constitute all or
part of or are included in the proceeds of the foregoing ((i), (ii), (iii), (iv)
and (v), collectively, the "Trust Estate"), provided that the Owner Trust Estate
shall not include the right to receive Prepayment Premiums under the terms of
any of the Mortgage Loans.
This Owner Trust Certificate does not purport to summarize the Owner
Trust Agreement and reference is made to the Owner Trust Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced hereby and the rights, duties and immunities of the Owner Trustee.
No transfer of this Owner Trust Certificate or interest therein shall
be made unless the transfer is made pursuant to an effective registration
statement under the Securities Act, and effective registration or qualification
under applicable state securities laws, or is made in a transaction that does
not require such registration or qualification. If any such transfer of a Owner
Trust Certificate held by the related transferor is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof to the Company), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Owner Trust Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
C-1 to the Owner Trust Agreement or such other certification reasonably
acceptable to the Owner Trustee; or (ii) a certificate from such Owner Trust
Certificateholder substantially in the form attached as Exhibit
-5-
C-2 to the Owner Trust Agreement or such other certification reasonably
acceptable to the Owner Trustee and a certificate from such Owner Trust
Certificateholder's prospective transferee substantially in the form attached as
Exhibit D-1 or Exhibit D-2 to the Owner Trust Agreement or such other
certification reasonably acceptable to the Owner Trustee; or (iii) an Opinion of
Counsel reasonably satisfactory to the Owner Trustee to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Owner Trust Estate or the
Owner Trust or of the Company, the Manager, the Owner Trustee, the Indenture
Trustee, the Master Servicer, the Special Servicer or the Certificate Registrar
in their respective capacities as such), together with the written
certifications as to the facts surrounding such transfer from the transferor and
the prospective transferee on which such Opinion of Counsel is based. None of
the Company, the Manager, the Owner Trustee, the Indenture Trustee, the Master
Servicer, the Special Servicer, the Certificate Registrar or any other person
shall be obligated to register or qualify any Class of Owner Trust Certificates
under the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any Owner
Trust Certificate or interest therein without registration or qualification. Any
Owner Trust Certificateholder desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Company, the Manager, the Owner Trustee, the
Indenture Trustee, the Master Servicer, the Special Servicer and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of this Owner Trust Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds, insurance company general and separate accounts and
other entities in which such plans, accounts or arrangements are invested, that
is subject to ERISA or the Code (each, a "Plan"), or to any Person who is
directly or indirectly purchasing such Owner Trust Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective transferee provides the Certificate Registrar with
(i) a certification substantially in the form of paragraph 1 of Exhibit D-3
attached to the Owner Trust Agreement and an Opinion of Counsel which
establishes to the reasonable satisfaction of the Owner Trustee that such
transfer is permissible under applicable law, will not result in any prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will not
subject the Company, the Manager, the Owner Trustee, the Indenture Trustee, the
Master Servicer, the Special Servicer or the Certificate Registrar to any
obligation in addition to those undertaken in the Owner Trust Agreement and the
other Operative Agreements or (ii) a certification substantially in the form of
paragraph 1 of Exhibit D-3 attached to the Owner Trust Agreement to the
foregoing effect and to the effect that (A) the purchaser is an insurance
company and the source of funds used to purchase such Owner Trust Certificate is
an "insurance company general account" (as such term is defined in PTCE 95-60),
(B) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied and will continue to be satisfied and (C) there is no Plan with
respect to which the amount of such general account's reserves and liabilities
for contracts held by or on behalf of such Plan and all other Plans maintained
by the same employer (or any "affiliate" thereof, as defined in PTCE 95-60) or
by the same employee organization exceed 10% of the total of all reserves and
liabilities of such general account (as determined under
-0-
XXXX 95-60) as of the date of the acquisition of such Owner Trust Certificate.
Each Person who acquires any Owner Trust Certificate or interest therein (unless
it shall have delivered the documents referred to in the preceding sentence)
shall be required to deliver to the Certificate Registrar a certification to the
effect set forth in paragraph 2 of Exhibit D-3 to the Owner Trust Agreement.
No sale, transfer or other disposition of this Owner Trust Certificate
may be made, and the Certificate Registrar shall refuse to register any such
transfer, unless such transferee provides the Certificate Registrar with (i) a
transferee letter, substantially in the form of Exhibit D-4 attached hereto, to
the effect that such transferee is a REIT or a QRS under the Code and that, for
so long as it retains its interest in such Owner Trust Certificate, it shall
endeavor to remain a REIT or a QRS under the Code, among other things, (ii) an
Opinion of Counsel which establishes to the reasonable satisfaction of the Owner
Trustee that such transfer would not cause the Owner Trust to cease to be
treated as a QRS under the Code and would not result in the imposition of an
entity-level tax on the Owner Trust to which REITs and QRSs are not otherwise
subject under the Code and (iii) the Owner Trustee shall have received written
confirmation from each of the Rating Agencies to the effect that such sale,
transfer or other disposition will not result in the qualification, downgrade or
withdrawal of any then current rating on the Bonds.
Prior to transfer of this Owner Trust Certificate in accordance with
the foregoing and the Owner Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving payments pursuant to the Owner Trust
Agreement, pursuant to the Indenture and for all other purposes whatsoever, and
neither the Owner Trustee, the Indenture Trustee, the Certificate Registrar nor
any agent of any of them shall be affected by notice to the contrary.
As provided in the Owner Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Owner Trust Certificateholder surrendering the same.
No service charge will be made to a Owner Trust Certificateholder for
any such registration of transfer or exchange, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The Owner Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Owner Trust Agreement and the modification of the
rights of the Owner Trust Certificateholders at any time by the Owner Trustee
with the consent of the Owner Trust Certificateholders entitled to a majority of
the Voting Rights (except as provided in the Owner Trust Agreement). Any consent
by the Owner Trust Certificateholder of this Owner Trust Certificate shall be
conclusive and binding on such Owner Trust Certificateholder and upon all future
Owner Trust Certificateholders issued upon the transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent is made upon
this Owner Trust Certificate.
-7-
The obligations created by the Owner Trust Agreement shall not
terminate until the Bonds have been paid in full and the Lien on the Trust
Estate created by the Indenture has been released; provided, however, that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Unless the Certificate of Authentication on this Owner Trust
Certificate has been executed by or on behalf of the Certificate Registrar, by
manual signature, this Owner Trust Certificate shall not be entitled to any
benefit under the Owner Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
WILMINGTON TRUST COMPANY,
not individually, but solely in its capacity as
Owner Trustee
_______________________________________________
Authorized Officer
This is one of the Owner Trust Certificates referred to in the
within-referenced Owner Trust Agreement.
Date: August 26, 1998
WILMINGTON TRUST COMPANY
not individually, but solely in its capacity as
Certificate Registrar
_______________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
________________________________________________________________ [(Please print
or typewrite name(s) and address(es), including postal zip code of assignee(s)]
("Assignee(s)") that portion of the interest in the Owner Trust represented by
the within Owner Trust Certificate set forth below and hereby authorize(s) the
transfer and registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address:_____________________________________________________________
____________________________________________________________________ ; to issue
a new Owner Trust Certificate of the same Class for the remainder of the
interest in the Owner Trust represented by the within Owner Trust Certificate to
the above-named Assignor(s) and deliver such Owner Trust Certificate to the
following address:_____________________________________________________________
__________________________________________________________________________; and
to cancel the within Owner Trust Certificate.
Date:___________________ ________________________________________
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred:____________ ________________________________________
Taxpayer Identification Number
EXHIBIT A-3
FORM OF CLASS R OWNER TRUST CERTIFICATE
IMPAC CMB TRUST 1998-C1
CLASS R OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid 100% interest in
the Class R Owner Trust Certificates, which, collectively
with the Class P and Class XS Owner Trust Certificates,
evidence the entire beneficial ownership interest in Impac
CMB Trust 1998-C1, a Delaware business trust whose assets
include certain commercial mortgage loans (the "Mortgage
Loans") deposited by IMH Assets Corp. (the "Company")
Date of Owner Trust Percentage Interest in Related Class
Agreement: August 1, 1998 Evidenced by this Class R Owner Trust
Certificate: ____
First Payment Date: September 21, 1998
Closing Date: August 26, 1998
Owner Trustee: Wilmington Trust Company
Depositor and Initial Holder of
the Owner Trust Certificates:
Owner Trust Certificate No. ___
-2-
THIS OWNER TRUST CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12.1 OF
THE OWNER TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS OWNER TRUST CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 12.1 OF THE OWNER TRUST AGREEMENT REFERRED TO HEREIN.
THIS OWNER TRUST CERTIFICATE MAY NOT BE TRANSFERRED UNLESS (A) THE PROSPECTIVE
TRANSFEREE FURNISHES AN OPINION OF COUNSEL WHICH ESTABLISHES THAT, UPON
TRANSFER, THIS CERTIFICATE WILL BE CHARACTERIZED AS INDEBTEDNESS FOR FEDERAL
INCOME TAX PURPOSES OR (B) SUCH TRANSFEREE FURNISHES THE INVESTMENT
REPRESENTATIONS, OPINION OF COUNSEL AND RATING AGENCY CONFIRMATIONS DESCRIBED
HEREIN.
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION
OF, THE COMPANY, THE OWNER TRUSTEE OR THE INDENTURE TRUSTEE, ANY OF THEIR
RESPECTIVE AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE
NOR THE MORTGAGE LOANS ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER
RESTRICTIONS DESCRIBED HEREIN.
PAYMENTS ON THIS OWNER TRUST CERTIFICATE WILL BE MADE IN THE MANNER
DESCRIBED IN THE OWNER TRUST AGREEMENT.
This Owner Trust Certificate is issued pursuant to, and in accordance
with, the terms of a Owner Trust Agreement, dated as of August 1, 1998 (the
"Owner Trust Agreement"; terms not otherwise defined herein shall have the
meanings assigned to those terms in the Owner
-3-
Trust Agreement), between IMH Assets Corp. as depositor (in such capacity, the
"Company") and initial Owner Trust Certificateholder and Wilmington Trust
Company as Owner Trustee (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which are set forth herein. This Owner Trust Certificate
is issued under and is subject to the terms, provisions and conditions of the
Owner Trust Agreement, to which Owner Trust Agreement the holder of this Owner
Trust Certificate by virtue of the acceptance hereof assents and by which such
Owner Trust Certificateholder is bound. In the event of a conflict between the
provisions of this Owner Trust Certificate and those of the Owner Trust
Agreement, the provisions of the Owner Trust Agreement shall control.
This certifies that _________________ is the registered owner of the
beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Owner Trust Agreement and designated as Impac CMB
Trust 1998-C1 (the "Owner Trust"). The assets of the Trust include certain
commercial mortgage loans (the "Mortgage Loans").
Except to the extent of their execution and authentication,
respectively, of the Owner Trust Certificates, the Owner Trustee and the
Certificate Registrar make no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of this Owner Trust
Certificate, or the Mortgage Loans. The Owner Trustee has executed this Owner
Trust Certificate in its limited capacity as Owner Trustee under the Owner Trust
Agreement, and the Certificate Registrar has authenticated this Owner Trust
Certificate in its limited capacity as Certificate Registrar under the Owner
Trust Agreement.
Payments on the Certificates will be made, to the extent of available
funds, on the 20th day of each month or, if any such day is not a Business Day,
then the next succeeding Business Day (each, a "Payment Date"), commencing in
September 1998. As more fully described in the Owner Trust Agreement, payments
on the Class R Certificates will be in an amount equal to the remaining portion,
if any, of the Certificateholder Funds for each Payment Date after making all
payments on the Class XS and Class P Certificates.
Pursuant to the Owner Trust Agreement, all payments made with respect
to any Class of Owner Trust Certificates on any Payment Date shall be allocated
PRO RATA among such Owner Trust Certificates based upon their respective
Percentage Interests. Payments to the Owner Trust Certificateholders on each
Payment Date will be made to the Owner Trust Certificateholders of record on the
related Record Date. Payments to any Owner Trust Certificateholder on any
Payment Date shall be made by wire transfer of immediately available funds to
the account of such Owner Trust Certificateholder at a bank or other entity
having appropriate facilities therefor, if such Owner Trust Certificateholder
shall have so notified the Owner Trustee in writing at least five Business Days
prior to the related Record Date and if such Owner Trust Certificateholder is
the registered owner of Owner Trust Certificates representing at least a 33-1/3%
Percentage Interest in any Class thereof, or otherwise by check mailed by first
class mail to the address of such Owner Trust Certificateholder appearing in the
Certificate Register. Final payment on each Owner Trust Certificate will be made
in like manner, but only upon presentment and surrender
-4-
of such Owner Trust Certificate at the Corporate Trust Office or such other
location specified in the notice to Owner Trust Certificateholders of such final
payment.
This Owner Trust Certificate is one of a duly authorized issue of
Owner Trust Certificates designated as Impac CMB Trust 1998-C1, Owner Trust
Certificates, representing a fractional undivided beneficial interest in a Trust
Estate consisting of (i) the Mortgage Loans and all payments and other
collections in respect of the Mortgage Loans received or due after the Cutoff
Date (exclusive of Principal Prepayments received prior to the Cut-off Date and
scheduled payments of interest and principal due on or before the Cut-off Date),
(ii) any real property acquired on behalf of the Issuer, (iii) such funds as
from time to time are deposited in the Collection Account, the REO Account and
accounts established under this Indenture and the Owner Trust Agreement for
purposes of making payments to the holders of the Bonds and distributions to the
holders of the Owner Trust Certificates, (iv) all present and future claims,
demands and causes and choses in action in respect of the foregoing, including
the rights, titles and interests of the Issuer in, to and under the Mortgage
Loans and (v) all proceeds of the foregoing of every kind and nature whatsoever,
including, without limitation, all proceeds of the conversion thereof, voluntary
or involuntary, into cash or other liquid property, all cash proceeds, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
rights to payment of any and every kind and other forms of obligations and
receivables, instruments and other property that at any time constitute all or
part of or are included in the proceeds of the foregoing ((i), (ii), (iii), (iv)
and (v), collectively, the "Trust Estate"), provided that the Owner Trust Estate
shall not include the right to receive Prepayment Premiums under the terms of
any of the Mortgage Loans.
This Owner Trust Certificate does not purport to summarize the Owner
Trust Agreement and reference is made to the Owner Trust Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced hereby and the rights, duties and immunities of the Owner Trustee.
No transfer of this Owner Trust Certificate or interest therein shall
be made unless the transfer is made pursuant to an effective registration
statement under the Securities Act, and effective registration or qualification
under applicable state securities laws, or is made in a transaction that does
not require such registration or qualification. If any such transfer of a Owner
Trust Certificate held by the related transferor is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof to the Company), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Owner Trust Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
C-1 to the Owner Trust Agreement or such other certification reasonably
acceptable to the Owner Trustee; or (ii) a certificate from such Owner Trust
Certificateholder substantially in the form attached as Exhibit C-2 to the Owner
Trust Agreement or such other certification reasonably acceptable to the Owner
Trustee and a certificate from such Owner Trust Certificateholder's prospective
transferee substantially in the form attached as Exhibit D-1 or Exhibit D-2 to
the Owner Trust Agreement or such other certification reasonably acceptable to
the Owner Trustee; or (iii) an Opinion of
-5-
Counsel reasonably satisfactory to the Owner Trustee to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Owner Trust Estate or the
Owner Trust or of the Company, the Manager, the Owner Trustee, the Indenture
Trustee, the Master Servicer, the Special Servicer or the Certificate Registrar
in their respective capacities as such), together with the written
certifications as to the facts surrounding such transfer from the transferor and
the prospective transferee on which such Opinion of Counsel is based. None of
the Company, the Manager, the Owner Trustee, the Indenture Trustee, the Master
Servicer, the Special Servicer, the Certificate Registrar or any other person
shall be obligated to register or qualify any Class of Owner Trust Certificates
under the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any Owner
Trust Certificate or interest therein without registration or qualification. Any
Owner Trust Certificateholder desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Company, the Manager, the Owner Trustee, the
Indenture Trustee, the Master Servicer, the Special Servicer and the Certificate
Registrar against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of this Owner Trust Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds, insurance company general and separate accounts and
other entities in which such plans, accounts or arrangements are invested, that
is subject to ERISA or the Code (each, a "Plan"), or to any Person who is
directly or indirectly purchasing such Owner Trust Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective transferee provides the Certificate Registrar with
(i) a certification substantially in the form of paragraph 1 of Exhibit D-3
attached to the Owner Trust Agreement and an Opinion of Counsel which
establishes to the reasonable satisfaction of the Owner Trustee that such
transfer is permissible under applicable law, will not result in any prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will not
subject the Company, the Manager, the Owner Trustee, the Indenture Trustee, the
Master Servicer, the Special Servicer or the Certificate Registrar to any
obligation in addition to those undertaken in the Owner Trust Agreement and the
other Operative Agreements or (ii) a certification substantially in the form of
paragraph 1 of Exhibit D-3 attached to the Owner Trust Agreement to the
foregoing effect and to the effect that (A) the purchaser is an insurance
company and the source of funds used to purchase such Owner Trust Certificate is
an "insurance company general account" (as such term is defined in PTCE 95-60),
(B) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied and will continue to be satisfied and (C) there is no Plan with
respect to which the amount of such general account's reserves and liabilities
for contracts held by or on behalf of such Plan and all other Plans maintained
by the same employer (or any "affiliate" thereof, as defined in PTCE 95-60) or
by the same employee organization exceed 10% of the total of all reserves and
liabilities of such general account (as determined under PTCE 95-60) as of the
date of the acquisition of such Owner Trust Certificate. Each Person who
acquires any Owner Trust Certificate or interest therein (unless it shall have
delivered the documents referred to in the preceding sentence) shall be required
to deliver to the Certificate
-6-
Registrar a certification to the effect set forth in paragraph 2 of Exhibit D-3
to the Owner Trust Agreement.
No sale, transfer or other disposition of this Owner Trust Certificate
may be made, and the Certificate Registrar shall refuse to register any such
transfer, unless such transferee provides the Certificate Registrar with (i) a
transferee letter, substantially in the form of Exhibit D-4 attached hereto, to
the effect that such transferee is a REIT or a QRS under the Code and that, for
so long as it retains its interest in such Owner Trust Certificate, it shall
endeavor to remain a REIT or a QRS under the Code, among other things, (ii) an
Opinion of Counsel which establishes to the reasonable satisfaction of the Owner
Trustee that such transfer would not cause the Owner Trust to cease to be
treated as a QRS under the Code and would not result in the imposition of an
entity-level tax on the Owner Trust to which REITs and QRSs are not otherwise
subject under the Code and (iii) the Owner Trustee shall have received written
confirmation from each of the Rating Agencies to the effect that such sale,
transfer or other disposition will not result in the qualification, downgrade or
withdrawal of any then current rating on the Bonds or the Grantor Trust
Certificates.
Prior to transfer of this Owner Trust Certificate in accordance with
the foregoing and the Owner Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving payments pursuant to the Owner Trust
Agreement, pursuant to the Indenture and for all other purposes whatsoever, and
neither the Owner Trustee, the Indenture Trustee, the Certificate Registrar nor
any agent of any of them shall be affected by notice to the contrary.
As provided in the Owner Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Owner Trust Certificateholder surrendering the same.
No service charge will be made to a Owner Trust Certificateholder for
any such registration of transfer or exchange, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The Owner Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Owner Trust Agreement and the modification of the
rights of the Owner Trust Certificateholders at any time by the Owner Trustee
with the consent of the Owner Trust Certificateholders entitled to a majority of
the Voting Rights (except as provided in the Owner Trust Agreement). Any consent
by the Owner Trust Certificateholder of this Owner Trust Certificate shall be
conclusive and binding on such Owner Trust Certificateholder and upon all future
Owner Trust Certificateholders issued upon the transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent is made upon
this Owner Trust Certificate.
-7-
The obligations created by the Owner Trust Agreement shall not
terminate until the Bonds have been paid in full and the Lien on the Trust
Estate created by the Indenture has been released; provided, however, that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
Unless the Certificate of Authentication on this Owner Trust
Certificate has been executed by or on behalf of the Certificate Registrar, by
manual signature, this Owner Trust Certificate shall not be entitled to any
benefit under the Owner Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
WILMINGTON TRUST COMPANY,
not individually, but solely in its capacity as
Owner Trustee
_______________________________________________
Authorized Officer
This is one of the Owner Trust Certificates referred to in the
within-referenced Owner Trust Agreement.
Date: August 21, 1998
WILMINGTON TRUST COMPANY
not individually, but solely in its capacity as
Certificate Registrar
______________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
______________________________________________________________ [(Please print
or typewrite name(s) and address(es), including postal zip code of assignee(s)]
("Assignee(s)") that portion of the interest in the Owner Trust represented by
the within Owner Trust Certificate set forth below and hereby authorize(s) the
transfer and registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Owner Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Owner
Trust represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address:_____________________________________________________________
_______________________________________________________________________________
_____________; to issue a new Owner Trust Certificate of the same Class for the
remainder of the interest in the Owner Trust represented by the within Owner
Trust Certificate to the Assignor(s) and deliver such Owner Trust Certificate to
the following address:_________________________________________________________
______________________________________________________________; and to cancel
the within Owner Trust Certificate.
Date:___________________ ________________________________________
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred:____________ ________________________________________
Taxpayer Identification Number
EXHIBIT B
FORM OF OWNER TRUSTEE REPORT
EXHIBIT C-1
FORM I OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF OWNER TRUST CERTIFICATES
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: IMH ASSETS CORP., CERTIFICATES OF BENEFICIAL OWNERSHIP (THE
"CERTIFICATES")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of Class ______ Certificates (the "Transferred Certificates")
[having an initial Certificate Principal Balance as of _________________ (the
"Closing Date") of $__________] [evidencing a ____% Percentage Interest in such
Class]. The Certificates, including the Transferred Certificates, were issued
pursuant to a Owner Trust Agreement, dated as of August 1, 1998 (the "Trust
Agreement"), between IMH Assets Corp. as depositor (the "Company") and
Wilmington Trust Company as owner trustee (the "Owner Trustee"). All terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Trust Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, and for the benefit of the Company, the Owner
Trustee and the Transferee, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Transferred Certificate under the Securities
-2-
Act of 1933, as amended (the "Securities Act"), or would render the
disposition of any Transferred Certificate a violation of Section 5 of
the Securities Act or any state securities laws, or would require
registration or qualification of any Transferred Certificate pursuant
to the Securities Act or any state securities laws.
3. The Transferor and any person acting on behalf of the
Transferor in this matter reasonably believe that the Transferee is a
"qualified institutional buyer" as that term is defined in Rule 144A
("Rule 144A") under the Securities Act (a "Qualified Institutional
Buyer") purchasing for its own account or for the account of a
Qualified Institutional Buyer. In determining whether the Transferee is
a Qualified Institutional Buyer, the Transferor and any person acting
on behalf of the Transferor in this matter have relied upon the
following method(s) of establishing the Transferee's ownership and
discretionary investments of securities (check one or more):
___ (a) The Transferee's most recent publicly available
financial statements, which statements present the
information as of a date within 16 months preceding
the date of sale of the Transferred Certificate in
the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser;
or
___ (b) The most recent publicly available information
appearing in documents filed by the Transferee with
the Securities and Exchange Commission or another
United States federal, state, or local governmental
agency or self-regulatory organization, or with a
foreign governmental agency or self-regulatory
organization, which information is as of a date
within 16 months preceding the date of sale of the
Transferred Certificate in the case of a U.S.
purchaser and within 18 months preceding such date of
sale for a foreign purchaser; or
___ (c) The most recent publicly available information
appearing in a recognized securities manual, which
information is as of a date within 16 months
preceding the date of sale of the Transferred
Certificate in the case of a U.S. purchaser and
within 18 months preceding such date of sale for a
foreign purchaser; or
___ (d) A certification by the chief financial officer, a
person fulfilling an equivalent function, or other
executive officer of the Transferee, specifying the
amount of securities owned and invested on a
discretionary basis by the Transferee as of a
specific date on or since the close of the
Transferee's most recent fiscal year, or, in the case
of a Transferee that is a member of a "family of
investment companies," as that term is defined in
Rule 144A, a certification by an executive officer of
the investment adviser specifying the amount of
securities owned by the "family of investment
companies" as
-3-
of a specific date on or since the close of the
Transferee's most recent fiscal year.
4. The Transferor and any person acting on behalf of the
Transferor understand that in determining the aggregate amount of
securities owned and invested on a discretionary basis by an entity for
purposes of establishing whether such entity is a Qualified
Institutional Buyer:
(a) the following instruments and interests shall be
excluded: securities of issuers that are affiliated with the
Transferee; securities that are part of an unsold allotment to
or subscription by the Transferee, if the Transferee is a
dealer; securities of issuers that are part of the
Transferee's "family of investment companies," if the
Transferee is a registered investment company; bank deposit
notes and certificates of deposit; loan participations;
repurchase agreements; securities owned but subject to a
repurchase agreement; and currency, interest rate and
commodity swaps;
(b) the aggregate value of the securities shall be
the cost of such securities, except where the entity reports
its securities holdings in its financial statements on the
basis of their market value, and no current information with
respect to the cost of those securities has been published, in
which case the securities may be valued at market;
(c) securities owned by subsidiaries of the entity
that are consolidated with the entity in its financial
statements prepared in accordance with generally accepted
accounting principles may be included if the investments of
such subsidiaries are managed under the direction of the
entity, except that, unless the entity is a reporting company
under Section 13 or 15(d) of the Exchange Act, securities
owned by such subsidiaries may not be included if the entity
itself is a majority-owned subsidiary that would be included
in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the
Transferor is relying on the exemption from the provisions of Section 5
of the Securities Act provided by Rule 144A.
-4-
6. The Transferor or a person acting on its behalf has
furnished, or caused to be furnished, to the Transferee all information
regarding (a) the Transferred Certificates and distributions thereon,
(b) the nature, performance and servicing of the Mortgage Loans, (c)
the Trust Agreement and (d) any credit enhancement mechanism associated
with the Transferred Certificates, that the Transferee has requested.
Very truly yours,
_______________________________________
(Transferor)
By:____________________________________
Name:
Title:
EXHIBIT C-2
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF OWNER TRUST CERTIFICATES
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: IMH ASSETS CORP., CERTIFICATES OF BENEFICIAL OWNERSHIP (THE
"CERTIFICATES")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of Class ______ Certificates (the "Transferred Certificates")
[having an initial Certificate Principal Balance as of _________________ (the
"Closing Date") of $__________] [evidencing a ____% Percentage Interest in such
Class]. The Certificates, including the Transferred Certificates, were issued
pursuant to an Owner Trust Agreement, dated as of August 1, 1998 (the "Trust
Agreement"), between IMH Assets Corp. as depositor (the "Company") and
Wilmington Trust Company as owner trustee (the "Owner Trustee"). All terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Trust Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, and for the benefit of the Company, the Owner
Trustee and the Transferee, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, which (in the case of any of the
acts described in clauses (a) through (e)
-2-
hereof) would constitute a distribution of any Transferred Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Transferred Certificate a violation
of Section 5 of the Securities Act or any state securities laws, or
would require registration or qualification of any Transferred
Certificate pursuant to the Securities Act or any state securities
laws.
Very truly yours,
_____________________________________
(Transferor)
By:__________________________________
Name:
Title:
EXHIBIT D-1
FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF OWNER TRUST
CERTIFICATES TO QUALIFIED INSTITUTIONAL BUYERS
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: IMH ASSETS CORP., CERTIFICATES OF BENEFICIAL OWNERSHIP (THE
"CERTIFICATES")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates (the "Transferred Certificates") [having an initial
Certificate Principal Balance as of _________________ (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest in such Class]. The
Certificates, including the Transferred Certificates, were issued pursuant to an
Owner Trust Agreement, dated as of August 1, 1998 (the "Trust Agreement"),
between IMH Assets Corp. as depositor (the "Company") and Wilminton Trust
Company as owner trustee (the "Owner Trustee"). All terms used but not otherwise
defined herein shall have the respective meanings set forth in the Trust
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, and for the benefit of the Company, the Owner Trustee and
the Transferee, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended, and has
completed one of the forms of certification to that effect attached
hereto as Annex A and Annex B. The Transferee is aware that the sale to
it of the Transferred Certificates is being made in reliance on Rule
144A. The Transferee is acquiring the Transferred Certificates for its
own account or for the account of a Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged
or transferred only (i) to a person reasonably believed to be a
Qualified Institutional Buyer that purchases for its own account or for
the account of a Qualified Institutional Buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
-2-
2. The Transferee has been furnished with all information
regarding (a) the Transferred Certificates and distributions thereon,
(b) the nature, performance and servicing of the Mortgage Loans, (c)
the Trust Agreement and (d) any credit enhancement mechanism associated
with the Transferred Certificates, that it has requested.
Very truly yours,
________________________________________
(Transferee)
By:_____________________________________
Name:
Title:
ANNEX A TO EXHIBIT D-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and Wilmington Trust Company as Certificate Registrar, with
respect to the Certificates being transferred (the "Transferred Certificates")
as described in the Transferee Certificate to which this certification relates
and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933 ("Rule 144A") because (i)
the Transferee owned and/or invested on a discretionary basis
$______________________1 in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986.
___ BANK. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, A COPY OF
WHICH IS ATTACHED HERETO, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a U.S.
bank, and not more than 18 months preceding such date of sale for a
foreign bank or equivalent institution.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having
________________________
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
-2-
supervision over any such institutions or is a foreign savings and
loan association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, A COPY OF WHICH IS ATTACHED HERETO, as of a date
not more than 16 months preceding the date of sale of the Certificate
in the case of a U.S. savings and loan association, and not more than
18 months preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
___ OTHER. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex B rather than
this Annex A.)_______________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
-3-
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
________________________________________
Print Name of Transferee
By:_____________________________________
Name:
Title:
Date:
ANNEX B TO EXHIBIT D-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and Wilmington Trust Company as Certificate Registrar, with
respect to the Certificates being transferred (the "Transferred Certificates")
as described in the Transferee Certificate to which this certification relates
and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
-2-
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
__________________________________________
Print Name of Transferee or Adviser
By:______________________________________
Name:
Title:
IF AN ADVISER:
_________________________________________
Print Name of Transferee
Date:
EXHIBIT D-2
FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF OWNER TRUST
CERTIFICATES TO INSTITUTIONAL ACCREDITED INVESTORS
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: IMH ASSETS CORP., CERTIFICATES OF BENEFICIAL OWNERSHIP (THE
"CERTIFICATES")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates (the "Transferred Certificates") [having an initial
Certificate Principal Balance as of ________________ (the "Closing Date") of
$__________] [evidencing a ____% Percentage Interest in such Class]. The
Certificates, including the Transferred Certificates, were issued pursuant to an
Owner Trust Agreement, dated as of August 1, 1998 (the "Trust Agreement"),
between IMH Assets Corp. as depositor (the "Company") and Wilmington Trust
Company as owner trustee (the "Trustee"). All terms used but not otherwise
defined herein shall have the respective meanings set forth in the Trust
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, and for the benefit of the Company, the Owner Trustee and
the Transferee, that:
1. The Transferee is acquiring the Transferred Certificates for
its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in
part, in any manner which would violate the Securities Act of 1933, as
amended (the "Securities Act"), or any applicable state securities
laws.
2. The Transferee understands that (a) the Class of Certificates
to which the Transferred Certificates belong has not been and will not
be registered under the Securities Act or registered or qualified
under any applicable state securities laws, (b) none of the Company,
the Trustee, the Certificate Registrar or any other person is
obligated so to register or qualify the Class of Certificates to which
the Transferred Certificates belong, and (c) no Transferred
Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant to
any applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such
-2-
registration and qualification and the Certificate Registrar has
received either: (A) a certificate from the Certificateholder desiring
to effect such transfer substantially in the form attached as Exhibit
C-1 to the Trust Agreement, (B) a certificate from such
Certificateholder substantially in the form attached as Exhibit C-2 to
the Trust Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached either as
Exhibit D-1 or as Exhibit D-2 to the Trust Agreement or (C) an Opinion
of Counsel satisfactory to the Trustee with respect to the availability
of such exemption from registration under the Securities Act, together
with copies of the written certifications from the transferor and
transferee setting forth the facts surrounding the transfer upon which
such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the
provisions of Section 12.1 of the Trust Agreement, which provisions it
has carefully reviewed, and that each Transferred Certificate will
bear the following legends:
THIS OWNER TRUST CERTIFICATE HAS NOT BEEN REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION
OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND
WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12.1
OF THE OWNER TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS OWNER TRUST CERTIFICATE OR ANY INTEREST
HEREIN MAY BE MADE (A) TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE
"CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 12.1 OF THE OWNER TRUST AGREEMENT REFERRED TO
HEREIN.
THIS OWNER TRUST CERTIFICATE MAY NOT BE TRANSFERRED UNLESS
(A) THE PROSPECTIVE TRANSFEREE FURNISHES AN OPINION OF
COUNSEL WHICH ESTABLISHES THAT, UPON TRANSFER, THIS
CERTIFICATE WILL BE CHARACTERIZED AS INDEBTEDNESS FOR
-3-
FEDERAL INCOME TAX PURPOSES OR (B) SUCH TRANSFEREE FURNISHES
THE INVESTMENT REPRESENTATIONS, OPINION OF COUNSEL AND
RATING AGENCY CONFIRMATIONS DESCRIBED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy
or accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation with respect to any Certificate, any interest in
any Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with
respect to any Certificate, any interest in any Certificate or any
other similar security, which (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act,
would render the disposition of the Transferred Certificates a
violation of Section 5 of the Securities Act or any state securities
law or would require registration or qualification of the Transferred
Certificates pursuant thereto. The Transferee will not act, nor has it
authorized or will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to any Certificate, any
interest in any Certificate or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Company, (b) the Transferred Certificates, (c) the
Trust Agreement, (d) the trusts created pursuant thereto, (e) the
nature, performance and servicing of the Mortgage Loans and (f) all
related matters, that it has requested. If the Transferee did not
purchase the Transferred Certificates from the Transferor in
connection with the initial issuance of the Transferred Certificates
and was provided with a copy of a Private Placement Memorandum (a
"Memorandum") relating to the original sales (the "Original Sales") of
the Transferred Certificates by the Company, the Transferee
acknowledges that the Memorandum was prepared by the Company solely
for use in connection with the Original Sales and the Company did not
participate in or facilitate in any way the acquisition of the
Transferred Certificate by the Transferee from the Transferor, and the
Transferee agrees that it will look solely to the Transferor and not
to the Company with respect to any damage, liability, claim or expense
arising out of, resulting from or in connection with (x) any error or
omission, or alleged error or omission, contained in the Memorandum,
or (y) any information, development or event arising after the date of
the Memorandum.
6. The Transferee is an "accredited investor" as defined in
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of an
-4-
investment in the Transferred Certificate; the Transferee has sought
such accounting, legal and tax advice as it has considered necessary
to make an informed investment decision; and the Transferee is able to
bear the economic risks of such investment and can afford a complete
loss of such investment.
Very truly yours,
_____________________________________
(Transferee)
By:__________________________________
Name:
Title:
EXHIBIT D-3
FORM OF TRANSFEREE CERTIFICATE WITH RESPECT TO ERISA MATTERS
RELATING TO THE TRANSFERS OF OWNER TRUST CERTIFICATES
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: IMH ASSETS CORP., CERTIFICATES OF BENEFICIAL OWNERSHIP (THE
"CERTIFICATES")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to _____________________ (the
"Transferee") of Class ______ Certificates (the "Transferred Certificates")
[having an initial Certificate Principal Balance as of _______________ (the
"Closing Date") of $__________] [evidencing a ____% Percentage Interest in such
Class]. The Certificates, including the Transferred Certificates, were issued
pursuant to an Owner Trust Agreement, dated as of August 1, 1998 (the "Trust
Agreement"), among IMH Assets Corp. as depositor (the "Company") and Wilmington
Trust Company as owner trustee (the "Owner Trustee"). All terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Trust Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, and for the benefit of the Company, the Owner
Trustee and the Transferee that:
(Check the applicable paragraph.)
___ 1. The purchase of the Transferred Certificates is permissible under
applicable law, will not constitute or result in any prohibited
transaction under ERISA or Section 4975 of the Code, will not subject
the Company, the Manager, the Owner Trustee, the Indenture Trustee, the
Master Servicer, the Special Servicer, the Grantor Trust Trustee or the
Certificate Registrar to any obligation in addition to those undertaken
in the Owner Trust Agreement, the Indenture, the Servicing Agreement,
the Management Agreement, the Loan Sale Agreement and the Grantor Trust
Agreement and the following statements are correct: (i) the Transferee
is an insurance company and the source of funds used to purchase the
Transferred Certificates is an "insurance company general account" (as
such term is defined in Prohibited Transaction Class Exemption ("PTCE")
95-60), (ii) the
-2-
conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied and (iii) there is no Plan with respect to which the amount
of such general account's reserves and liabilities for contracts held
by or on behalf of such Plan and all other Plans maintained by the same
employer (or any "affiliate" thereof, as defined in PTCE 95-60) or by
the same employee organization exceed 10% of the total of all reserves
and liabilities of such general account (as determined under PTCE
95-60) as of the date of the acquisition of the Transferred
Certificates; or
___ 2. The Transferee (i) is not an employee benefit plan within the
meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or other retirement arrangement,
including an individual retirement account or annuity, a Xxxxx plan or
a collective investment fund, general account or separate account in
which such plans, accounts or arrangements are invested, including,
without limitation, an insurance company general account, that is
subject to ERISA or the Internal Revenue Code of 1986 ("Code") (any of
the foregoing, a "Plan"), and (ii) is not a Person who is directly or
indirectly purchasing a Transferred Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan assets"
of a Plan within the meaning of the Department of Labor ("DOL")
regulation at 29 C.F.R. ss. 2510.3-101.
Very truly yours,
______________________________________
(Transferee)
By:___________________________________
Name:
Title:
EXHIBIT D-4
FORM OF TAX CERTIFICATE FOR TRANSFERS OF OWNER TRUST CERTIFICATES
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: IMH ASSETS CORP., CERTIFICATES OF BENEFICIAL OWNERSHIP (THE
"CERTIFICATES")
This letter is delivered to you in connection with the transfer by
[______________] (the "Transferor") to [_________________] (the "Transferee") of
the Certificates designated as Class P, Class XS and Class R (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to an Owner Trust Agreement, dated as of June 1, 1998 (the
"Trust Agreement"), among IMH Assets Corp. as depositor (the "Company") and
Wilmington Trust Company as owner trustee (the "Owner Trustee"). All terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Trust Agreement. The Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, and for the benefit of the Company, the Owner
Trustee and the Transferor, that:
1. The Transferee is a REIT or a QRS under the Code and, for so long
as it retains its interest in such Owner Trust Certificate, the Transferee
shall endeavor to remain a REIT or a QRS under the Code, among other
things; and
2. The Transferee has reviewed the transfer restrictions set forth in
Section 12.1(d) of the Owner Trust Agreement. The Transferee expressly
agrees to be bound by and to comply with such restrictions and provisions.
Very truly yours,
__________________________________________
(Transferee)
By:_______________________________________
Name:
Title:
EXHIBIT E-1
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION
REQUEST BY BENEFICIAL HOLDER
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
In accordance with Section 4.4 of the Owner Trust Agreement, dated as
of August 1, 1998 (the "Owner Trust Agreement"), by and among IMH Assets Corp.
as depositor (the "Company") and Wilmington Trust Company as owner trustee (the
"Owner Trustee") with respect to the Certificates of Beneficial Interest (the
"Owner Trust Certificates"), the undersigned hereby certifies and agrees as
follows:
1. The undersigned is the beneficial owner of the Class [____] Owner
Trust Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 4.4 of the Owner Trust
Agreement (the "Information") for use in evaluating its investment in the
Class [____] Owner Trust Certificates.
3. In consideration of the Owner Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in
making the evaluation described in paragraph 2), and such Information will
not, without the prior written consent of the Indenture Trustee, be
disclosed by the undersigned or by its officers, directors, partners
employees, agents or representatives (collectively, the "Representatives")
in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended, or would require registration of any Owner Trust
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Company, the Sellers, the Owner Trustee, the Indenture Trustee and the
Grantor Trust Fund for any loss, liability
-2-
or expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Indenture.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF AN OWNER TRUST
CERTIFICATE]
By:____________________________________
Name:
Title:
EXHIBIT E-2
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION
REQUEST BY PROSPECTIVE PURCHASER
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
In accordance with Section 4.4 of the Owner Trust Agreement, dated as
of August 1, 1998 (the "Owner Trust Agreement"), by and among IMH Assets Corp.
as depositor (the "Company") and Wilmington Trust Company as owner trustee (the
"Owner Trustee") with respect to the Certificates of Beneficial Ownership (the
"Owner Trust Certificates"), the undersigned hereby certifies and agrees as
follows:
1. The undersigned is contemplating an investment in the Class [____]
Owner Trust Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 4.4 of the Owner Trust
Agreement (the "Information") solely for use in evaluating such possible
investment.
3. In consideration of the Owner Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in
making the investment decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of the Indenture
Trustee, be disclosed by the undersigned or by its officers, directors,
partners employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended, or would require registration of any Bond pursuant
to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Company, the Sellers, the Owner Trustee, the Indenture Trustee and the
Grantor Trust Fund for any loss, liability or expense incurred thereby with
respect to any such breach by the undersigned or any of its
Representatives.
-2-
Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Owner Trust Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:__________________________________
Name:
Title:
The undersigned is a beneficial owner of Class __ Owner Trust
Certificates contemplating a transfer of all or a portion of such Owner Trust
Certificates to the prospective purchaser named above.
[PROSPECTIVE TRANSFEREE]
By:___________________________
Name:
Title: