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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
December 10, 1998
IMC Home Equity Loan Owner Trust 1998-7
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 333-48429-04 Being Applied For
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(State or Other Jurisdiction) (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
</TABLE>
c/o Wilmington Trust Company,
as Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890
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(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code (302) 651-1000
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N/A
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(Former name or former address, if changed since last report)
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<PAGE>
Item 5. Other Events.
Reference is hereby made to the Registration Statement on Form S-3
(Registration File No. 333-48429), as amended, filed by IMC Securities, Inc.
(the "Depositor") with the Securities and Exchange Commission (the "Commission")
on March 20, 1998, pursuant to which the Depositor registered $5,000,000,000
aggregate principal amount of its mortgage asset-backed certificates and notes,
issuable in various series, for sale in accordance with the provisions of the
Securities Act of 1933, as amended (the "Act"). Reference is also hereby made to
the Prospectus, dated May 29, 1998, and the related Prospectus Supplement, dated
December 2, 1998, which were previously filed with the Commission pursuant to
Rule 424(b)(5), with respect to the IMC HOME EQUITY LOAN OWNER TRUST 1998-7 Home
Equity Loan Asset Backed Notes, Series 1998-7A (the "Series 1998-7A Notes") and
Series 1998-7B (the "Series 1998-7B Notes" and, together with the Series 1998-7A
Notes, the "Notes").
The Notes were sold to PaineWebber Incorporated pursuant to the terms
of an underwriting agreement dated December 2, 1998 (the "Underwriting
Agreement") among IMC Securities, Inc., IMC Mortgage Company and PaineWebber
Incorporated. A copy of the Underwriting Agreement is filed herewith as Exhibit
1.1.
The Series 1998-7A Notes were issued pursuant to an Indenture dated as
of December 1, 1998 (the "Series 1998-7A Indenture") between IMC Home Equity
Loan Owner Trust 1998-7 (the "Registrant" or the "Trust") and The Chase
Manhattan Bank, as Indenture Trustee (the "Indenture Trustee"). The Series
1998-7B Notes were issued pursuant to an Indenture dated as of December 1, 1998
(the "Series 1998-7B Indenture") between the Trust and the Indenture Trustee.
Copies of the Series 1998-7A Indenture and the Series 1998-7B Indenture are
filed herewith as Exhibits 4.1 and 4.2, respectively.
The Series 1998-7A Notes are secured by a portion of the trust estate
pledged under the Series 1998-7A Indenture ("Pool I") and by a limited right to
receive certain excess cashflow from Pool II to fund certain shortfalls. The
Series 1998-7B Notes are secured by a portion of the trust estate pledged under
the Series 1998-7B Indenture ("Pool II") and by a limited right to receive
certain excess cashflow from Pool I to fund certain shortfalls. The assets of
the Trust, consisting of Pool I and Pool II, primarily include a pool of fixed
and adjustable rate home equity loans (the "Home Equity Loans") secured by first
and second lien mortgages or deeds of trust on one-to-four family residential
properties.
Beneficial interests in the Trust are represented by certificates
issued pursuant to the Trust Agreement dated as of December 1, 1998 (the "Trust
Agreement") between the Depositor and Wilmington Trust Company, as Owner
Trustee. A copy of the Trust Agreement is filed herewith as Exhibit 4.3.
The Home Equity Loans were sold by IMC Mortgage Company (the "Seller")
to the Depositor and were simultaneously sold by the Depositor to the Registrant
pursuant to the Sale and Servicing Agreement dated as of December 1, 1998 (the
"Sale and Servicing Agreement") among IMC Mortgage Company, as Seller, Ocwen
Federal Bank FSB, as Servicer, the Depositor, the Registrant and The Chase
Manhattan Bank, as Indenture Trustee. The Home Equity Loans will be
2
<PAGE>
serviced by the Servicer pursuant to the terms of the Sale and Servicing
Agreement . A copy of the Sale and Servicing Agreement is filed herewith as
Exhibit 10.1.
As of the Closing Date, the Home Equity Loans possessed the
characteristics described in the Prospectus dated May 29, 1998 and the
Prospectus Supplement dated December 2, 1998 filed pursuant to Rule 424(b)(5) of
the Act on December 11, 1998. In such Prospectus Supplement, a commitment was
made to provide a description of the Pool I Home Equity Loans and the Pool II
Home Equity Loans, including Home Equity Loans acquired between the Cut-Off Date
(December 1, 1998) and the Closing Date (December 10, 1998), in a current report
on Form 8-K. Such description is attached hereto as Exhibit 99.1.
3
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits:
1.1 Underwriting Agreement dated December 2, 1998, among
IMC Securities, Inc., IMC Mortgage Company and
PaineWebber Incorporated.
4.1 Indenture, dated as of December 1, 1998, relating to
the Series 1998-7A Notes between IMC Home Equity Loan
Owner Trust 1998-7, as Issuer and The Chase Manhattan
Bank, as Indenture Trustee.
4.2 Indenture, dated as of December 1, 1998, relating to
the Series 1998-7B Notes between IMC Home Equity Loan
Owner Trust 1998-7, as Issuer and The Chase Manhattan
Bank, as Indenture Trustee.
4.3 Trust Agreement, dated as of December 1, 1998 between
IMC Securities, Inc., as Depositor, and Wilmington
Trust Company, as Owner Trustee.
10.1 Sale and Servicing Agreement dated as of December 1,
1998, among IMC Securities Inc., as Depositor, IMC
Home Equity Loan Owner Trust 1998-7, as Issuer, IMC
Mortgage Company, as Seller, Ocwen Federal Bank FSB,
as Servicer, and The Chase Manhattan Bank, as
Indenture Trustee.
99.1 Description of the Home Equity Loans as of the
Closing Date (December 10, 1998).
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
By: IMC SECURITIES, INC.,
as Depositor
By: /s/ Thomas Middleton
---------------------------
Name: Thomas Middleton
Title: President and Chief
Operating Officer
Dated: December 21, 1998
5
<PAGE>
EXHIBIT INDEX
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<S> <C> <C>
Exhibit No. Description Page No.
1.1 Underwriting Agreement dated December 2, 1998, among IMC
Securities, Inc., IMC Mortgage Company and PaineWebber
Incorporated.
4.1 Indenture, dated as of December 1, 1998, relating to the Series
1998-7A Notes, between IMC Home Equity Loan Owner Trust
1998-7, as Issuer and The Chase Manhattan Bank, as Indenture
Trustee.
4.2 Indenture, dated as of December 1, 1998, relating to the Series
1998-7B Notes, between IMC Home Equity Loan Owner Trust
1998-7, as Issuer and The Chase Manhattan Bank, as Indenture
Trustee.
4.3 Trust Agreement, dated as of December 1, 1998 between
IMC Securities, Inc., as Depositor, and Wilmington Trust
Company, as Owner Trustee.
10.1 Sale and Servicing Agreement dated as of December 1,
1998, among IMC Securities Inc., as Depositor, IMC Home
Equity Loan Owner Trust 1998-7, as Issuer, IMC Mortgage
Company, as Seller, Ocwen Federal Bank FSB, as Servicer,
and The Chase Manhattan Bank, as Indenture Trustee.
99.1 Description of the Home Equity Loans as of the Closing Date
(December 10, 1998).
</TABLE>
6
Exhibit 1.1
EXECUTION COPY
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$600,000,000
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
Home Equity Loan Asset Backed Notes, Series 1998-7A
Home Equity Loan Asset Backed Notes, Series 1998-7B
UNDERWRITING AGREEMENT
----------------------
December 2, 1998
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Dear Sirs:
IMC Securities, Inc. (the "Depositor"), a Delaware corporation, has
authorized (i) the creation of IMC Home Equity Loan Owner Trust 1998-7, a
Delaware business trust (the "Issuer"), pursuant to the Trust Agreement, dated
as of December 1, 1998 (the "Trust Agreement"), between the Depositor and
Wilmington Trust Company ("Wilmington Trust"), as owner trustee (the "Owner
Trustee") and (ii) the issuance and sale of $600,000,000 aggregate original
principal amount of the Issuer's Home Equity Loan Asset Backed Notes, Series
1998-7A and 1998-7B (collectively, the "Notes"). The Notes will evidence
non-recourse obligations of, and will be issued by, the Issuer pursuant to the
terms of the Indentures, dated as of December 1, 1998 (the "Indentures"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"Indenture Trustee"). Pursuant to the Trust Agreement, the Issuer also will
issue certificates evidencing the residual interest in the Issuer (the "Residual
Interest"). The Residual Interest and the Notes are sometimes collectively
referred to as the "Securities."
Each Series of Notes will be primarily secured by a pool of home equity
loans secured by mortgages or deeds of trust creating first or second liens on
primarily one- to four-family residential properties (the "Home Equity Loans")
and such amounts as may be held by the Indenture Trustee in any accounts for the
Owners (collectively, the "Trust Estate"). The aggregate principal balance of
the Home Equity Loans will be approximately $600,000,000 as of the close of
business on December 1, 1998 (the "Cut-Off Date"). The Home Equity Loans will be
sold by IMC Mortgage Company ("IMC") to the Depositor, and by the Depositor to
the Issuer pursuant to the Sale and Servicing Agreement, dated as of December 1,
1998 (the "Sale and Servicing Agreement"), among IMC, as seller (the "Seller"),
Ocwen Federal Bank FSB, as Servicer (the "Servicer"), the Depositor, the
Indenture Trustee and the Issuer. Prior to the Closing Date, the Seller will
transfer its servicing rights in the Home Equity Loans pursuant to a Servicing
Rights Purchase Agreement, dated as of December 1, 1998 (the "Servicing Rights
Agreement"). Pursuant to the Sale and Servicing Agreement, the Servicer will
service the
<PAGE>
Home Equity Loans on behalf of the Issuer.
The Notes will have the benefit of a financial guaranty insurance
policy (the "Insurance Policy") issued by Financial Security Assurance Inc. (the
"Note Insurer"), issued pursuant to the Insurance Agreement, dated as of
December 1, 1998 (the "Insurance Agreement") among the Seller, the Servicer, the
Depositor, the Indenture Trustee and the Note Insurer. The Note Insurer, the
Seller, the Depositor and the Underwriter also will enter into an
Indemnification Agreement, dated as of December 2, 1998 (the "Indemnification
Agreement"). This Agreement, the Trust Agreement, the Sale and Servicing
Agreement, the Servicing Rights Agreement, the Indentures, the Indemnification
Agreement and the Insurance Agreement are sometimes referred to herein
collectively as the "Agreements". A form of each of the Trust Agreement, the
Indentures and the Sale and Servicing Agreement has been filed as an exhibit to
the Registration Statement (hereinafter defined).
The Notes are more fully described in a Registration Statement which
the Depositor has furnished to the Underwriter. Capitalized terms used but not
defined herein shall have the meanings given to them in the Agreements.
The Notes are being purchased by PaineWebber Incorporated (the
"Underwriter").
SECTION 1. Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with the Underwriter that:
A. A Registration Statement on Form S-3 (No. 333-48429) has (i) been
prepared by the Depositor in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act"), the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the rules and
regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") under the
Securities Act and the Trust Indenture Act, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under
the Securities Act. Copies of such Registration Statement have been
delivered by the Depositor to the Underwriter. As used in this
Agreement, "Effective Time" means the date and the time as of which
such Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Registration
Statement" means such registration statement, at the Effective Time,
including any documents incorporated by reference therein at such time;
and "Basic Prospectus" means such final prospectus dated May 29, 1998;
and "Prospectus Supplement" means the final prospectus supplement
relating to the Notes, to be filed with the Commission pursuant to
paragraph (2), (3) or (5) of Rule 424(b) of the Rules and Regulations.
"Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. Reference made herein to the Prospectus shall be deemed to
refer to and include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the
date of the Prospectus and any reference to any amendment or supplement
to the Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934 (the "Exchange Act")
after the date of the Prospectus, and incorporated by reference in the
Prospectus and any
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<PAGE>
reference to any amendment to the Registration Statement shall be
deemed to include any report of the Depositor filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or
suspending the use of the Prospectus. There are no contracts or
documents of the Depositor which are required to be filed as exhibits
to the Registration Statement pursuant to the Securities Act, the Rules
and Regulations or the Trust Indenture Act which have not been so filed
or incorporated by reference therein on or prior to the Effective Date
of the Registration Statement other than such documents or materials,
if any, as the Underwriter delivers to the Depositor pursuant to
Section 4(B) hereof for filing on Form 8-K. The conditions for use of
Form S-3, as set forth in the General Instructions thereto, have been
satisfied.
B. The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act, the Trust Indenture Act and the
Rules and Regulations. The Registration Statement, as of the Effective
Date thereof and of any amendment thereto, did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus as of its date, and as amended or
supplemented as of the Closing Date, does not and will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
no representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Depositor in writing by the Underwriter expressly for use therein. The
only information furnished by the Underwriter or on behalf of the
Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus is described in Section 8(I)
hereof.
C. The documents incorporated by reference to the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided that no representation is made as to documents
deemed to be incorporated by reference in the Prospectus as the result
of filing a Form 8-K at the request of the Underwriter except to the
extent such documents
-3-
<PAGE>
reflect information furnished by the Depositor to the Underwriter for
the purpose of preparing such documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the
general affairs, management, financial condition, or results of
operations of the Depositor, otherwise than as set forth or
contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
E. The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and is in good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, and has all power and authority
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under
each Agreement to which it is a party and to cause the Securities to be
issued.
F. There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before
or threatened by any court, administrative agency or other tribunal to
which the Depositor is a party or of which any of its properties is the
subject (a) which if determined adversely to the Depositor would have a
material adverse effect on the business or financial condition of the
Depositor, (b) asserting the invalidity of any of the Agreements or the
Securities, (c) seeking to prevent the issuance of the Securities or
the consummation by the Depositor of any of the transactions
contemplated by the Agreements, or (d) which might materially and
adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, the Agreements or the
Securities.
G. This Agreement has been, and each other Agreement to which the
Depositor is a party when executed and delivered as contemplated hereby
and thereby will have been, duly authorized, executed and delivered by
the Depositor, and this Agreement constitutes, and each such other
Agreement when executed and delivered as contemplated herein, will
constitute, legal, valid and binding instruments enforceable against
the Depositor in accordance with their respective terms, subject as to
enforceability to (x) applicable bankruptcy, reorganization, insolvency
moratorium or other similar laws affecting creditors' rights generally,
(y) general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), and (z) with respect to
rights of indemnity under this Agreement and the Indemnification
Agreement, limitations of public policy under applicable securities
laws.
H. The execution, delivery and performance of each Agreement to which
the Depositor is a party and the consummation of the transactions
contemplated hereby and thereby, and the issuance and delivery of the
Notes do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party, by which the
Depositor is bound or to which any of the properties or assets of the
Depositor or any of its subsidiaries is
-4-
<PAGE>
subject, which breach or violation would have a material adverse effect
on the business, operations or financial condition of the Depositor,
nor will such actions result in any violation of the provisions of the
articles of incorporation or by-laws of the Depositor or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its properties or
assets, which breach or violation would have a material adverse effect
on the business, operations or financial condition of the Depositor.
I. The Depositor has no reason to believe that either Coopers & Lybrand
L.L.P. or Deloitte & Touche LLP are not independent public accountants
with respect to the Depositor as required by the Securities Act and the
Rules and Regulations.
J. The direction by the Depositor to the Owner Trustee to execute,
issue and deliver and the direction by the Depositor to the Indenture
Trustee to authenticate the Notes has been duly authorized by the
Depositor, and assuming the Owner Trustee and the Indenture Trustee
have been duly authorized to do so, when executed, authenticated,
issued and delivered in accordance with the Indentures, the Notes will
be validly issued and outstanding and will be entitled to the benefits
provided by the Indentures.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Securities and
the sale of the Notes to the Underwriter, or the consummation by the
Depositor of the other transactions contemplated by the Agreements
except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the Notes by
the Underwriter or as have been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or
foreign regulatory agencies or bodies necessary to conduct the business
now conducted by it and as described in the Prospectus, and the
Depositor has not received notice of any proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which if decided adversely to the Depositor would, singly or
in the aggregate, materially and adversely affect the conduct of its
business, operations or financial condition.
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<PAGE>
M. At the time of execution and delivery of the Sale and Servicing
Agreement, the Depositor will: (i) have beneficial title to the Home
Equity Loans conveyed by the Seller, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens"); (ii) not have assigned to any person
any of its right or title in the Home Equity Loans or in the Sale and
Servicing Agreement or in the Notes being issued pursuant to the
Indentures and (iii) have the power and authority to sell its interest
in the Home Equity Loans to the Issuer and to sell the Notes to the
Underwriter. Upon execution and delivery of the Sale and Servicing
Agreement by the Issuer, the Issuer will have acquired beneficial
ownership of all of the Depositor's right, title and interest in and to
the Home Equity Loans. Upon execution and delivery of the Indentures by
the Issuer and the Indenture Trustee, the Indenture Trustee will have a
valid and perfected security interest in the Trust Estate free of any
other Liens. Upon delivery to the Underwriter of the Notes, the
Underwriter will have good title to the Notes, free of any Liens.
N. [Reserved]
O. As of the Cut-Off Date, each of the Home Equity Loans will meet the
eligibility criteria described in the Prospectus and will conform to
the descriptions thereof contained in the Prospectus.
P. [Reserved]
Q. Neither the Depositor nor the Issuer is an "investment company"
within the meaning of such term under the Investment Company Act of
1940 (the "1940 Act") and the rules and regulations of the Commission
thereunder.
R. At the Closing Date, the Notes and each Agreement will conform in
all material respects to the descriptions thereof contained in the
Prospectus.
S. At the Closing Date, the Notes shall have been rated in the
respective rating categories by the nationally recognized rating
agencies, as described in the Prospectus Supplement under "Ratings".
T. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of each Agreement and the
Securities have been paid or will be paid at or prior to the Closing
Date.
U. At the Closing Date, each of the representations and warranties of
the Depositor set forth in each Agreement to which it is a party will
be true and correct in all material respects.
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<PAGE>
Any certificate signed by an officer of the Depositor and delivered to
the Underwriter or counsel for the Underwriter in connection with an offering of
the Notes shall be deemed, and shall state that it is, a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriter to
purchase the Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth. The Depositor agrees to
instruct the Issuer to issue the Notes and agrees to sell to the Underwriter,
and the Underwriter agrees (except as provided in Section 11 hereof) to purchase
from the Depositor the aggregate initial principal amounts of the Notes set
forth on Schedule A, at the purchase price or prices set forth in Schedule A.
The Underwriter may offer the Notes to certain dealers at such price less a
concession not in excess of the amount set forth in Schedule A. The Underwriter
may allow and such dealers may reallow a discount to certain dealers not in
excess of the amount set forth in Schedule A.
SECTION 3. Delivery and Payment. Delivery of and payment for the Notes
to be purchased by the Underwriter shall be made at the offices of Dewey
Ballantine LLP, 1301 Avenue of the Americas, New York, New York or at such other
place as shall be agreed upon by the Underwriter and the Depositor at 10:00 A.M.
New York City time on December 10, 1998, or at such other time or date as shall
be agreed upon in writing by the Underwriter and the Depositor (such date being
referred to as the "Closing Date"). Payment shall be made to the Depositor by
wire transfer of same day funds payable to the account of the Depositor.
Delivery of the Notes shall be made to the Underwriter for the account of the
Underwriter against payment of the purchase price thereof. The Notes shall be in
such authorized denominations and registered in such names as the Underwriter
may request in writing at least two business days prior to the Closing Date. The
Notes will be made available for examination by the Underwriter no later than
2:00 P.M. New York City time on the first business day prior to the Closing
Date.
SECTION 4. Offering by the Underwriter.
A. It is understood that, subject to the terms and conditions hereof,
the Underwriter proposes to offer the Notes for sale to the public as
set forth in the Prospectus.
B. It is understood that the Underwriter may prepare and provide to
prospective investors certain Computational Materials and ABS Term
Sheets in connection with the offering of the Notes, subject to
the following conditions:
1. In connection with its use of Computational Materials, the
Underwriter shall comply with all applicable requirements of the
No-Action Letter, dated May 20, 1994, issued by the Division of
Corporation Finance of the Commission to Kidder, Peabody Acceptance
Corporation I, Kidder, Peabody & Co. Incorporated and Kidder Structured
Asset Corporation, as made applicable to other issuers and Underwriter
by the Division of Corporation Finance of the Commission in response to
the request of the Public Securities Association ("PSA"), dated May 23,
1994 (collectively, the
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<PAGE>
"Kidder/PSA Letters"), as well as the PSA Letter referred to below. In
connection with its use of ABS Term Sheets, the Underwriter shall
comply with all applicable requirements of the No-Action Letter dated
February 17, 1995, issued by the Division of Corporation Finance of the
Commission to PSA (the "PSA Letter" and, together with the Kidder/PSA
Letters, the "No-Action Letters").
2. The term "Computational Materials" as used herein shall
have the meaning given to such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of the
Underwriter. The terms "ABS Term Sheets," "Collateral Term Sheets" and
"Structural Term Sheets" as used herein shall have the meanings given
to such terms in the PSA Letter, but shall include only those ABS Term
Sheets, Collateral Term Sheets or Structural Term Sheets that have been
prepared or delivered to prospective investors by or at the direction
of the Underwriter.
3. All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letter shall bear a legend in a form previously agreed upon
by the Depositor and the Underwriter.
4. Any Computational Materials and ABS Term Sheets are subject
to review by and approval of the Depositor prior to their distribution
to any prospective investors and a copy of such Computational Materials
and ABS Term Sheets as are delivered to prospective investors shall, in
addition to the following delivery requirements, be delivered to the
Depositor simultaneously with delivery to prospective investors.
5. The Underwriter shall provide to the Depositor, for filing
on Form 8-K as provided in Section 5(E), two printed copies and one
electronic copy on diskette (in such format as required by the
Depositor) of all Computational Materials and ABS Term Sheets
distributed by the Underwriter and that are required to be filed with
the Commission pursuant to the No-Action Letters. Each delivery of
Computational Materials or ABS Term Sheets to the Depositor pursuant to
this paragraph shall be effected by delivering one printed copy and one
electronic copy on diskette of such materials to counsel for the
Depositor on behalf of the Depositor and one printed copy of such
materials to the Depositor. The Underwriter may provide copies of the
foregoing in a consolidated or aggregate form that includes all
information required to be filed by the Underwriter. All Computational
Materials and ABS Term Sheets described in this Section must be
provided to the Depositor no later than 10:00 a.m., New York time, on
the business day before the date on which filing thereof is required
pursuant to the terms of this Agreement. The Underwriter agrees that it
will not provide to any investor or prospective investor of the Notes
any Computational Materials or ABS Terms Sheets on or after the day on
which Computational Materials and ABS Term Sheets are required to be
provided to the Depositor pursuant to this Section (other than copies
of Computational Materials or ABS Term Sheets previously submitted to
the Depositor in accordance with this Section for filing pursuant to
Section 5(E), unless such Computational Materials or ABS Term Sheets
are preceded or accompanied by the
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delivery of a Prospectus to such investor or prospective investor.
6. All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the same
methodolgy and assumptions that are used to generate the information in
the Prospectus Supplement as set forth therein; provided, however, that
the Computational Materials and ABS Term Sheets may include information
based on alternative methodologies or assumptions specified therein. If
any Computational Materials or ABS Term Sheets that are required to be
filed contain any material error, to the extent the Prospectus
Supplement does not specifically correct such error, the Underwriter
shall prepare revised corrected Computational Materials or ABS Term
Sheets, as the case may be, circulate such revised Computational
Materials or ABS Term Sheets, as the case may be, to all recipients of
the preliminary versions thereof that indicated orally to the
Underwriter that they would purchase all or any portion of the Notes
and include such revised Computational Materials or ABS Term Sheets
(marked "as revised") in the materials delivered to the Depositor
pursuant to Section 4(B)(5) hereof.
7. The Depositor shall not be obligated to file any
Computational Materials or ABS Term sheets that (i) in the reasonable
determination of the Depositor and the Underwriter and its counsel are
not required to be filed pursuant to the No-Action Letters or (ii) have
been determined to contain any material error; provided that, at the
request of the Underwriter, the Depositor will file Computational
Materials or ABS Term Sheets that contain a material error if clearly
marked "superseded by materials dated __________" and accompanied by
corrected Computational Materials or ABS Term sheets that are marked
"material previously dated _________, as corrected.".
C. The Underwriter represents and warrants and agrees with the
Depositor that, as of the date hereof and the Closing Date, (i) the
Computational Materials and ABS Term Sheets furnished to the Depositor
pursuant to Section 4(B)(5) constitute (either in original, aggregated
or consolidated form) all of the materials furnished to prospective
investors by the Underwriter prior to the time of delivery thereof to
the Depositor that are required to be filed with the Commission with
respect to the Notes in accordance with the No-Action Letters, and such
Computational Materials and ABS Term Sheets comply with the
requirements of the No-Action Letters, (ii) the Underwriter has not and
will not represent to potential investors that any Computational
Materials or ABS Term Sheets were prepared or disseminated on behalf of
the Depositor, and (iii) all Computational Materials and ABS Term
Sheets (or underlying materials distributed to prospective investors on
which the Computational Materials and ABS Term Sheets were based)
contained and will contain the legend in the form previously agreed
upon by the Depositor and the Underwriter as required by Section
4(B)(3) hereof.
Notwithstanding the foregoing, the Underwriter makes no representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or any
written or electronic materials furnished to prospective investors on which the
Computational Materials or ABS Term Sheets are based) included or will include
any inaccurate statement resulting directly from any error contained in the
Seller-Provided Information provided to the Underwriter by the
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Depositor.
D. If the Underwriter does not provide any Computational Materials or
ABS Term Sheets to the Depositor pursuant to Section 4(B)(4), the
Underwriter shall be deemed to have represented, as of the Closing
Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Notes that is required to be filed with the Commission
in accordance with the No-Action Letters.
SECTION 5. Covenants of the Depositor and IMC. The Depositor and, to
the extent the provisions of Section 5(I) below relate to IMC, IMC each agrees
as follows:
A. To prepare the Prospectus in a form approved by the Underwriter and
to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the availability of the Prospectus to the
Underwriter to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
except as permitted herein; to advise the Underwriter, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective prior to the
Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the Closing Date and to furnish the
Underwriter with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and,
for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Notes; to promptly advise the
Underwriter of its receipt of notice of the issuance by the Commission
of any stop order or of: (i) any order preventing or suspending the use
of the Prospectus; (ii) the suspension of the qualification of the
Notes for offering or sale in any jurisdiction; (iii) the initiation of
or threat of any proceeding for any such purpose; (iv) any request by
the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information. In the event
of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such
qualification, the Depositor promptly shall use its best efforts to
obtain the withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriter such number of the following
documents as the Underwriter shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case including
exhibits); (ii) the Prospectus and any amended or supplemented
Prospectus; and (iii) any document incorporated by reference in the
Prospectus
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(including exhibits thereto). If the delivery of a prospectus is
required at any time prior to the expiration of nine months after the
Effective Time in connection with the offering or sale of the Notes,
and if at such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act
or the Exchange Act, the Depositor shall notify the Underwriter and,
upon the Underwriter's request, shall file such document and prepare
and furnish without charge to the Underwriter and to any dealer in
securities as many copies as the Underwriter may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which corrects such statement or omission or effects such
compliance, and in case the Underwriter is required to deliver a
Prospectus in connection with sales of any of the Notes at any time
nine months or more after the Effective Time, upon the request of the
Underwriter but at its expense, the Depositor shall prepare and deliver
to the Underwriter as many copies as the Underwriter may reasonably
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Depositor or the
Underwriter, be required by the Securities Act, the Trust Indenture Act
or requested by the Commission.
E. The Depositor will cause any Computational Materials and ABS Term
Sheets with respect to the Notes which are delivered by the Underwriter
to the Depositor as provided in Section 4(B)(5) to be filed with the
Commission on a Current Report on Form 8-K (the "Form 8-K --
Computational Materials") at or before the time of filing of the
Prospectus pursuant to Rule 424(b) under the Securities Act; to cause
any ABS Term Sheets with respect to the Notes that are delivered to the
Depositor as provided in Section 4(B)(5) to be filed with the
Commission on one or more Current Reports on Form 8-K (i) at or before
the time of filing of the Prospectus pursuant to Rule 424(b) of the
Rules and Regulations in the case of Structural Term Sheets, and (ii)
within two business days of first use in the case of Collateral Term
Sheets. Prior to any such filing of Computational Materials or ABS Term
Sheets (other than any Collateral Term Sheets that are not based on
Home Equity Loan information provided to the Underwriter by the
Depositor) by the Depositor, however, the Underwriter must comply with
its obligations pursuant to Section 4(B) and the Depositor must receive
a letter from independent, certified public accountants, satisfactory
in form and substance to the Depositor, the Depositor's counsel and the
Underwriter, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by the Depositor
and the Underwriter, as a result of which they determined that all
information that is included in the Computational Materials and ABS
Term Sheets (if any) provided by the Underwriter to the Depositor for
filing on Form 8-K, as provided in Section 4(B)
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<PAGE>
and this Section 5(E), is accurate except as to such matters that are
not deemed by the Depositor to be material. The Depositor shall file
any corrected Computational Materials or ABS Term Sheets described in
Section 4(B)(7) as soon as practicable following receipt thereof.
F. To furnish the Underwriter and counsel for the Underwriter, prior to
filing with the Commission, and to obtain the consent of the
Underwriter for the filing of the following documents relating to the
Notes: (i) amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or
(ii) Prospectus pursuant to Rule 424 of the Rules and Regulations.
G. To make generally available to holders of the Notes as soon as
practicable, but in any event not later than 90 days after the close of
the period covered thereby, a statement of earnings of the Issuer
(which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option
of the Depositor, Rule 158) and covering a period of at least twelve
consecutive months beginning not later than the first day of the first
fiscal quarter following the Closing Date.
H. To use its best efforts, in cooperation with the Underwriter, to
qualify the Notes for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriter may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required
for the distribution of the Notes. The Depositor will file or cause the
filing of such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been so qualified.
I. Unless the Underwriter shall otherwise have given its written
consent, no pass-through certificates or debt instruments backed by
home equity loans or other similar securities representing interest in
or secured by other mortgage-related assets originated or owned by the
Depositor or IMC shall be publicly offered, sold nor shall the
Depositor or IMC enter into any contractual arrangements that
contemplate the public offering or sale of such securities for a period
of seven (7) business days following the commencement of the offering
of the Notes to the public.
J. So long as the Notes shall be outstanding, the Depositor shall cause
the Indenture Trustee, pursuant to the Sale and Servicing Agreement, to
deliver to the Underwriter as soon as such statements are furnished to
the Owners: (i) the annual statement as to compliance delivered to the
Indenture Trustee pursuant to Section 4.16 of the Sale and Servicing
Agreement; (ii) the annual statement of a firm of independent public
accountants furnished to the Indenture Trustee pursuant to Section 4.17
of the Sale and Servicing Agreement; (iii) the monthly servicing report
furnished to the Trustee pursuant to Section 3.08 of the Sale and
Servicing Agreement; and (iv) the monthly reports furnished to the
Noteholders pursuant to Section 3.09 of the Indentures.
K. To apply the net proceeds from the sale of the Notes in the manner
set forth in
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<PAGE>
the Prospectus.
SECTION 6. Conditions to the Underwriter's Obligations. The obligations
of the Underwriter to purchase the Notes pursuant to this Agreement are subject
to: (i) the accuracy on and as of the Closing Date of the representations and
warranties on the part of the Depositor and IMC herein contained; (ii) the
performance by the Depositor of all of its obligations hereunder; and (iii) the
following conditions as of the Closing Date:
A. The Underwriter shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
B. The Underwriter shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact or omits to state a fact which,
in the opinion of Dewey Ballantine LLP, counsel for the Underwriter, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of the Agreements, the Issuer, the
Notes, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to the
Underwriter and its counsel, and the Depositor shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
D. Arter & Hadden LLP shall have furnished to the Underwriter their
written opinion, as counsel to the Depositor, addressed to the
Underwriter and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
1. The conditions to the use by the Depositor of a
registration statement on Form S-3 under the Securities Act,
as set forth in the General Instructions to Form S-3, have
been satisfied with respect to the Registration Statement and
the Prospectus.
2. The Registration Statement and any amendments thereto have
become effective under the Securities Act; to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for that purpose have
been instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective effective or issue
dates (other than the financial and statistical information
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<PAGE>
contained therein, as to which such counsel need express no
opinion), complied as to form in all material respects with
the applicable requirements of the Securities Act and the
rules and regulations thereunder.
3. To the best of such counsel's knowledge, there are no
material contracts, indentures or other documents of a
character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
4. The statements set forth in the Basic Prospectus under the
captions "Description of The Securities", "Servicing of
Mortgage Loans" and "The Indentures" and in the Prospectus
Supplement under the captions "Description of the Notes" and
"Administration," to the extent such statements purport to
summarize certain provisions of the Notes or of the
Agreements, are fair and accurate in all material respects.
5. The statements set forth in the Basic Prospectus and the
Prospectus Supplement under the captions "ERISA
Considerations" and "Federal Income Tax Consequences" to the
extent that they constitute matters of federal law, provide a
fair and accurate summary of such law or conclusions.
6. The Agreements conform in all material respects to the
descriptions thereof contained in the Prospectus. The
Indentures have been duly qualified under the Trust Indenture
Act of 1939, as amended and complies with the requirements of
the Trust Indenture Act and the applicable Rules and
Regulations.
7. Neither the Depositor nor the Issuer is an "investment
company" or under the "control" of an "investment company" as
such terms are defined in the 1940 Act.
8. For federal income tax purposes, the Notes will be treated
as debt obligations of the Issuer, and the Issuer will not be
characterized as an association (or publicly traded
partnership) taxable as a corporation.
9. The Notes will, when issued, conform to the descriptions
thereof contained in the Prospectus.
10. The Notes, when duly and validly executed, authenticated
and delivered in accordance with the Indentures and delivered
to the Underwriter and paid for in accordance with the
Underwriting Agreement, will be entitled to the benefits of
the Indentures.
Such counsel shall also have furnished to the Underwriter a written
statement, addressed to the Underwriter and dated the Closing Date, in
form and substance satisfactory to the
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Underwriter to the effect that no facts have come to the attention of
such counsel which lead them to believe that: (a) the Registration
Statement, at the time such Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading (except as to financial or
statistical data contained in the Registration Statement); (b) the
Prospectus, as of its date and as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; or (c) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Depositor
prior to the Closing Date contained, as of the time it became effective
or was filed with the Commission, as the case may be, an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
E. The Underwriter shall have received the favorable opinion, dated the
Closing Date, of Arter & Hadden LLP, special counsel to the Depositor,
addressed to the Depositor and satisfactory to Standard & Poor's, a
division of the McGraw-Hill Companies Inc., Moody's Investors Service,
Inc. and the Underwriter, with respect to certain matters relating to
the transfer of the Home Equity Loans to the Depositor and from the
Depositor to the Issuer, and such counsel shall have consented to the
reliance on such opinion by Standard & Poor's, a division of the
McGraw-Hill Companies, Moody's Investors Service, Inc. and the
Underwriter as though such opinion had been addressed to each such
party.
F. Mitchell W. Legler, P.A., special counsel for IMC, in IMC's capacity
as Seller under the Sale and Servicing Agreement, and/or Arter & Hadden
LLP shall have furnished to the Underwriter their written opinion or
opinions, addressed to the Underwriter and the Depositor and dated the
Closing Date, in form and substance satisfactory to the Underwriter, to
the effect that:
1. IMC has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Florida and has duly authorized all actions contemplated
hereby.
2. IMC has full power and authority to serve in the capacity
of seller of the Home Equity Loans as contemplated in the Sale
and Servicing Agreement and to transfer the Home Equity Loans
to the Depositor as contemplated in the Sale and Servicing
Agreement and has the requisite power and authority and legal
right to own the Residual Interest.
3. This Agreement, the Servicing Rights Agreement and the Sale
and Servicing Agreement have been duly authorized, executed
and delivered by IMC and, assuming the due authorization,
execution and delivery of such agreements
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by the other parties thereto, constitute the legal, valid and
binding agreements of IMC, enforceable against IMC in
accordance with their terms, subject as to enforceability to
(x) bankruptcy, insolvency, reorganization, moratorium,
receivership or other similar laws now or hereafter in effect
relating to creditors' rights generally and (y) the
qualification that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion, with respect to
such remedies, of the court before which any proceedings with
respect thereto may be brought.
4. Neither the transfer of the Home Equity Loans by IMC to the
Depositor, nor the execution, delivery or performance by IMC
of the Sale and Servicing Agreement and the transactions
contemplated thereby (A) conflict with or result in a breach
of, or constitute a default under, (i) any term or provision
of the formation documents of IMC, as applicable; (ii) any
term or provision of any material agreement, deed of trust,
mortgage loan agreement, contract, instrument or indenture, or
other agreement to which IMC is a party or is bound or to
which any of the property or assets of IMC or any of its
subsidiaries is subject; (iii) to the best of such counsel's
knowledge without independent investigation any order,
judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over IMC; or (iv)
any law, rule or regulations applicable to IMC; or (B) to the
best of such firm's knowledge without independent
investigation, results in the creation or imposition of any
lien, charge or encumbrance upon the Trust Estate or upon the
Notes.
5. The execution of the Sale and Servicing Agreement is
sufficient to convey all of IMC's right, title and interest in
the Home Equity Loans to the Depositor and following the
consummation of the transaction contemplated by Section 2.05
of the Pooling and Servicing Agreement, the transfer of the
Home Equity Loans by IMC to the Depositor is a sale thereof.
6. There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or
investigations pending with respect to which IMC has received
service of process or threatened against IMC before any court,
administrative agency or other tribunal (a) asserting the
invalidity of any of the Agreements or the Notes, (b) seeking
to prevent the consummation of any of the transactions
contemplated by the Agreements or (c) which would materially
and adversely affect the performance by IMC of its obligations
under, or the validity or enforceability of, the Sale and
Servicing Agreement or this Agreement.
G. Arter & Hadden LLP, special counsel for the Depositor, shall have
furnished to the Underwriter their written opinion, addressed to the
Underwriter and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
1. The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware and is in
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good standing as a foreign corporation in each jurisdiction in
which its ownership or lease of property or the conduct of its
business so requires. The Depositor has all power and
authority necessary to own or hold its properties and to
conduct the business in which it is engaged and to enter into
and perform its obligations under the Agreements and to cause
the Securities to be issued.
2. The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Depositor is a party or by which it or its properties may be
bound, which default might result in any material adverse
changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and
adversely affect the properties or assets, taken as a whole,
of the Depositor.
3. The Agreements to which the Depositor is a party have been
duly authorized, and when duly executed and delivered by the
Depositor and, assuming the due authorization, execution and
delivery of such agreements by the other parties thereto, such
agreements constitute valid and binding obligations,
enforceable against the Depositor in accordance with their
respective terms, subject as to enforceability to (x)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, (y) general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or
at law) and (z) with respect to rights of indemnity under this
Agreement and the Indemnification Agreement, limitations of
public policy under applicable securities laws.
4. The execution, delivery and performance of the Agreements
to which the Depositor is a party by the Depositor, the
consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Notes do not and
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Depositor is a
party or by which the Depositor is bound or to which any of
the property or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have
a material adverse effect on the business, operations or
financial condition of the Depositor, nor will such actions
result in a violation of the provisions of the certificate of
incorporation or by-laws of the Depositor or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Depositor or any
of its properties or assets, which breach or violation would
have a material adverse effect on the business, operations or
financial condition of the Depositor.
5. The directions by the Depositor to the Trustees to execute,
issue, authenticate and deliver the Notes have been duly
authorized by the Depositor
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and, assuming that the Trustees have been duly authorized to
do so, when executed, authenticated and delivered by the
Indenture Trustee in accordance with the Indentures, the Notes
will be validly issued and outstanding and will be entitled to
the benefits of the Indentures.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body of the United States is required for the issuance of the
Securities, and the sale of the Notes to the Underwriter, or
the consummation by the Depositor of the other transactions
contemplated by the Agreements, except such consents,
approvals, authorizations, registrations or qualifications as
may be required State securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by
the Underwriter or as have been previously obtained.
7. There are not, to the best of such counsel's knowledge,
after reasonable independent investigation, any actions,
proceedings or investigations pending with respect to which
the Depositor has received service of process before or,
threatened by any court, administrative agency or other
tribunal to which the Depositor is a party or of which any of
its properties is the subject: (a) which if determined
adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial
condition of the Depositor; (b) asserting the invalidity of
the Agreements or the Notes; (c) seeking to prevent the
issuance of the Notes or the consummation by the Depositor of
any of the transactions contemplated by the Agreements; or (d)
which might materially and adversely affect the performance by
the Depositor of its obligations under, or the validity or
enforceability of, the Agreements or the Notes.
8. The execution of the Sale and Servicing Agreement is
sufficient to convey all of the Depositor's right, title and
interest in the Home Equity Loans to the Issuer and following
the consummation of the transaction contemplated by Section 2
of the Sale and Servicing Agreement, the transfer of the Home
Equity Loans by the Depositor to the Issuer is a sale thereof.
H. The documents listed in Schedule B hereto shall have been executed
and delivered and the Underwriter shall be entitled to rely on any such
opinions as though the same were addressed to the Underwriter.
I. The Underwriter shall have received an opinion of Richards, Layton &
Finger, counsel to the Owner Trustee, dated the Closing Date, in form
and substance satisfactory to the Underwriter and counsel for the
Underwriter, to the effect that:
1. The Owner Trustee is a Delaware banking corporation duly
incorporated and validly existing under the laws of the State
of Delaware.
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2. The Owner Trustee has the full power and authority to
accept the office of owner trustee under the Trust Agreement
and to enter into and perform its obligations under the Trust
Agreement and the transactions contemplated thereby.
3. The execution and delivery of the Trust Agreement by the
Owner Trustee and the performance by the Owner Trustee of its
obligations under the Trust Agreement have been duly
authorized by all necessary action of the Owner Trustee and
the Trust Agreement has been duly executed and delivered by
the Owner Trustee.
4. The Trust Agreement constitutes valid and binding
obligations of the Owner Trustee enforceable against the Owner
Trustee in accordance with its terms, except as the
enforceability thereof may be (a) limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or other
similar laws affecting the rights of creditors generally, and
(b) subject to general principals of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
5. The execution and delivery by the Owner Trustee of the
Trust Agreement and the consummation of the transactions
contemplated thereby do not require any consent, approval or
authorization of, or any registration or filing with, any
applicable governmental authority of the State of Delaware
which has not been obtained or done.
6. Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust Agreement, nor the
fulfillment of the terms thereof by the Owner Trustee will
conflict with, result in a breach or violation of, or
constitute a default under the Articles of Association,
By-Laws or other organizational documents of the Owner Trustee
J. The Underwriter shall have received an opinion of Richards, Layton &
Finger, special Delaware counsel for the Issuer dated the Closing Date,
in form and substance satisfactory to the Underwriter and counsel for
the Underwriter, to the effect that:
1. The Trust Agreement is the legal, valid and binding
agreement of the Owner Trustee, and the Depositor, enforceable
against the Owner Trustee, and the Depositor in accordance
with its terms subject to (i) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization,
fraudulent conveyance and similar laws relating to and
affecting the rights and remedies of creditors generally, (ii)
principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
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2. The Certificate of Trust has been duly filed with the
Secretary of State of the State of Delaware. The Issuer as
been duly formed and is validly existing as a business trust
under the Delaware Business Trust Act.
3. The Issuer has the power and authority under the Trust
Agreement and the Delaware Business Trust Act to execute,
deliver and perform its obligations under the Trust Agreement,
the Indentures, the Sale and Servicing Agreement, the Notes
and the Residual Interests and to issue the Securities.
4. The Issuer has duly authorized and executed the Trust
Agreement, the Indentures, the Sale and Servicing Agreement,
the Notes and the Residual Interests.
5. The Trust has the power under the Trust Agreement and the
Delaware Business Trust Act to pledge the Trust Estate to the
Indenture Trustee as security for the Notes.
6. The Notes have been executed, authorized and delivered by
the Owner Trustee upon the order of the Depositor in
accordance with the Trust Agreement and the Indentures.
7. To the extent that Article 9 of the Uniform Commercial Code
as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles),
and assuming that the security interest created by the
Indentures in the Collateral has been duly created and has
attached, upon the filing of a UCC-1 financing statement with
the Secretary of State of the State of Delaware, the Indenture
Trustee will have a perfected security interest in such
Collateral and the proceeds thereof; and such security
interest will be prior to any other security interest granted
by the Trust that is perfected solely by the filing of
financing statements under the Delaware UCC, excluding
purchase money security interests under ss.9-312 of the
Delaware UCC and temporarily perfected security interests in
proceeds under ss.9-306 of the Delaware UCC.
8. No re-filing or other action is necessary under the
Delaware UCC in the State of Delaware in order to maintain the
perfection of the security interest referenced above except
for the filing of continuation statements at five-year
intervals.
9. Under ss.3805(b) of the Delaware Business Trust Act, no
creditor of any holder of the Residual Interest shall have any
right to obtain possession of, or otherwise exercise legal or
equitable remedies with
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respect to, the property of the Trust except in accordance
with the terms of the Trust Agreement subject to (i)
applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
10. Under ss.3805(c) of the Delaware Business Trust Act, and
assuming that the Sale and Servicing Agreement conveys good
title to the Home Equity Loans to the Issuer as a true sale
and not as a security arrangement, the Issuer, rather than the
holders of the Residual Interest, is the owner of the Home
Equity Loans subject to (i) applicable bankruptcy, insolvency,
moratorium, receivership, reorganization, fraudulent
conveyance and similar laws relating to and affecting the
rights and remedies of creditors generally, (ii) principles of
equity (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
11. The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Issuer, of the
Indentures and the Sale and Servicing Agreement do not require
any consent, approval or authorization of, or any registration
or filing with, any governmental authority of the State of
Delaware, except for the filing of the Certificate of Trust
with the Secretary of State.
12. Neither the consummation by the Owner Trustee of the
transactions contemplated by the Trust Agreement or, on behalf
of the Trust, the transactions contemplated by the Trust
Agreement, Indentures and the Sale and Servicing Agreement nor
the fulfillment of the terms thereof by the Owner Trustee will
conflict with or result in a breach or violation of any law of
the State of Delaware.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriter. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the Federal law of the United States of America and the
laws of the State of Delaware.
K. The Underwriter shall have received the favorable opinion dated the
Closing Date, from internal counsel to the Note Insurer, in form and
scope satisfactory to counsel for the Underwriter, substantially to the
effect that:
1. The Note Insurer is a monoline insurance company duly
incorporated,
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validly existing, and in good standing under the laws of the
State of New York. The Note Insurer is validly licensed and
authorized to issue the Insurance Policy and perform its
obligations under the Insurance Agreement in accordance with
the terms thereof, under the laws of the State of New York.
2. The Note Insurer has the corporate power to execute and
deliver, and to take all action required of it under the
Insurance Agreement and the Insurance Policy.
3. The execution, delivery and performance by the Note Insurer
of the Insurance Policy, the Indemnification Agreement and
Insurance Agreement does not require the consent or approval
of, the giving of notice to, the prior registration with, or
the taking of any other action in respect of any state or
other governmental agency or authority which has not
previously been obtained or effected.
4. The Insurance Policy, the Indemnification Agreement and
Insurance Agreement have been duly authorized, executed and
delivered by the Note Insurer and constitute the legal, valid
and binding agreement of the Note Insurer, enforceable against
the Note Insurer in accordance with its terms subject, as to
enforcement, to (x) bankruptcy, reorganization, insolvency,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, including, without
limitation, laws relating to fraudulent transfers or
conveyances, preferential transfers and equitable
subordination, presently or from time to time in effect and
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law), as such laws may be applied in any such proceeding with
respect to the Note Insurer and (y) the qualification that the
remedy of specific performance and other forms of equitable
relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings with
respect thereto may be brought.
5. To the extent the Insurance Policy constitutes a security
within the meaning of Section 2(1) of the Securities Act, it
is a security that is exempt from the registration
requirements of the Act.
6. The information set forth under the caption, "The Note
Insurer" in the Prospectus Supplement, insofar as such
information constitutes a description of the Insurance Policy,
accurately summarizes such Insurance Policy.
L. The Underwriter shall have received the favorable opinion of counsel
to the Indenture Trustee, dated the Closing Date, addressed to the
Underwriter and in form and scope satisfactory to counsel to the
Underwriter, to the effect that:
1. The Indenture Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State
of New York.
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2. The Indenture Trustee has the full corporate trust power to
execute, deliver and perform its obligations under the
Indentures
3. The execution and delivery by the Indenture Trustee of the
Indentures and the performance by the Indenture Trustee of its
obligations under the Indentures have been duly authorized by
all necessary corporate action of the Indenture Trustee.
4. The Indentures are a valid and legally binding obligation
of the Indenture Trustee enforceable against the Trustee.
5. The execution and delivery by the Indenture Trustee of the
Indentures does not (a) violate the Organization Certificate
of the Trustee or the Bylaws of the Indenture Trustee, (b) to
such counsel's knowledge, violate any judgment, decree or
order of any New York or United States federal court or other
New York or United States federal governmental authority by
which the Indenture Trustee is bound or (c) assuming the
non-existence of any judgment, decree or order of any court or
other governmental authority that would be violated by such
execution and delivery, violate any New York or United States
federal statute, rule or regulation or require any consent,
approval or authorization of any New York or United States
federal court or other New York or United States federal
governmental authority.
6. The Notes have been duly authenticated and delivered by the
Indenture Trustee.
7. If the Indenture Trustee were acting as Servicer under Sale
and Servicing Agreement as of the date of such opinion, the
Indenture Trustee would have the full corporate trust power to
perform the obligations of the Servicer under the Sale and
Servicing Agreement; and
8. To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened
against or affecting the Indenture Trustee before or by any
court, arbitrator, administrative agency or other governmental
authority which, if decided adversely to the Indenture
Trustee, would materially and adversely affect the ability of
the Indenture Trustee to carry out the transactions
contemplated in the Indentures.
M. The Underwriter shall have received the favorable opinion or
opinions, dated the date of the Closing Date, of counsel for the
Underwriter, with respect to the issue and sale of the Notes, the
Registration Statement, this Agreement, the Prospectus and such other
related matters as the Underwriter may reasonably require.
N. The Underwriter shall have received the favorable opinion of Hunton
& Williams, special counsel to the Servicer, dated the Closing Date,
addressed to the
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Underwriter and in form and scope satisfactory to counsel to the
Underwriter, to the effect that:
1. The Servicer is validly existing in good standing as a
corporation under the laws of its state of incorporation.
2. The Servicer has full corporate power and authority to
serve in the capacity of servicer of the Home Equity Loans as
contemplated in the Sale and Servicing Agreement.
3. The Sale and Servicing Agreement has been duly authorized,
executed and delivered by the Servicer, and, assuming the due
authorization, execution and delivery of such agreement by the
other parties thereto, constitutes the legal, valid and
binding agreement of the Servicer, enforceable against the
Servicer in accordance with its terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization,
moratorium, receivership or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (y) the qualification that the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion,
with respect to such remedies, of the court before which any
proceedings with respect thereto may be brought.
4. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body having jurisdiction over the Servicer is required for the
consummation by the Servicer of the transactions contemplated
by the Sale and Servicing Agreement, except such consents,
approvals, authorizations, registrations and qualifications as
have been obtained.
5. The execution, delivery or performance by the Servicer of
the Sale and Servicing Agreement and the transactions
contemplated thereby do not (A) conflict with or result in a
breach of, or constitute a default under, (i) any term or
provision of the certificate of incorporation or by-laws of
the Servicer; (ii) any term or provision of any material
agreement, deed of trust, mortgage loan agreement, contract,
instrument or indenture, or other agreement to which the
Servicer is a party or is bound or to which any of the
property or assets of the Servicer or any of its subsidiaries
is subject; (iii) to the best of such counsel's knowledge
without independent investigation any order, judgment, writ,
injunction or decree of any court or governmental authority
having jurisdiction over the Servicer; or (iv) any law, rule
or regulations applicable to the Servicer; or (B) to the best
of such counsel's knowledge without independent investigation,
results in the creation or imposition of any lien, charge or
encumbrance upon the Trust Estate or upon the Certificates.
6. There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge without
independent investigation, threatened against the Servicer
before any court, administrative agency or other tribunal (a)
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asserting the invalidity of the Sale and Servicing Agreement
or the Notes, (b) seeking to prevent the consummation of any
of the transactions contemplated by the Sale and Servicing
Agreement or (c) which would materially and adversely affect
the performance by the Servicer of its obligations under, or
the validity or enforceability of, the Sale and Servicing
Agreement.
O. The Depositor and IMC shall each have furnished to the Underwriter a
certificate, dated the Closing Date and signed by the Chairman of the
Board, the President or a Vice President of the Depositor and IMC,
respectively, stating as it relates to each such entity:
1. The representations and warranties made by such entity in
the Agreements to which it is a party are true and correct as
of the Closing Date; and such entity has complied with all
agreements contained herein which are to have been complied
with on or prior to the Closing Date.
2. The information contained in the Prospectus relating to
such entity and the Home Equity Loans is true and accurate in
all material respects and nothing has come to his or her
attention that would lead such officer to believe that the
Registration Statement or the Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein not misleading.
3. There has been no amendment or other document filed
affecting the Certificate of Incorporation or bylaws of the
Depositor since November 10, 1994 or the formation documents
of IMC since June 19, 1996 and no such amendment has been
authorized. No event has occurred since September 30, 1998
which has affected the good standing of the Depositor under
the laws of the State of Delaware or since September 30, 1998
which has affected the good standing of IMC under the laws of
the State of Florida.
4. There has not occurred any material adverse change, or any
development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings,
business or operations of such entity from June 30, 1998,
except as disclosed in the Prospectus Supplement.
In addition to the foregoing, the IMC certificate shall state that the
representations and warranties set forth in Sections 1 D, E, F, G, H,
K, L, M, N, O, P and R of this Agreement are made by IMC instead of the
Depositor and are true as to IMC as though such representations and
warranties were fully set forth in such certificate.
P. The Indenture Trustee shall have furnished to the Underwriter a
certificate of the Indenture Trustee, signed by one or more duly
authorized officers of the Indenture Trustee, dated the Closing Date,
as to the due authorization, execution and delivery of the Indentures
by the Indenture Trustee and the acceptance by the Indenture Trustee of
the trusts created thereby and the due authentication and delivery of
the Notes by the
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Indenture Trustee thereunder and such other matters as the Underwriter
shall reasonably request.
Q. The Notes shall have been rated in the respective rating categories
and by the nationally recognized statistical rating organizations
described in the Prospectus Supplement under "Ratings."
R. The Depositor shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may
reasonably have requested not less than three full business days prior
to the Closing Date.
S. Prior to the Closing Date, counsel for the Underwriter shall have
been furnished with such documents and opinions as it may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Notes as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained, and all proceedings taken by the
Depositor in connection with the issuance and sale of the Notes as
herein contemplated shall be satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
T. Subsequent to the execution and delivery of this Agreement, none of
the following shall have occurred: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by federal or state authorities; (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation of hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States; (iv) any of the ratings assigned to the claims
paying ability of the Note Insurer shall have been placed on credit
watch, withdrawn or downgraded; or (v) there shall have occurred such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets of the United States shall be such) as to make it in each of
the instances set forth in clauses (i), (ii), (iii), (iv) and (v)
herein, in the reasonable judgment of the Underwriter, impractical or
inadvisable to proceed with the public offering or delivery of the
Notes on the terms and in the manner contemplated in the Prospectus.
U. The Underwriter shall have received from each of Coopers & Lybrand
L.L.P. and Deloitte & Touche LLP, certified public accountants, a
letter dated the date of the Prospectus Supplement and a letter dated
the date hereof and satisfactory in form and substance to the
Underwriter and its counsel, to the effect that they have performed
certain specified procedures, all of which have been agreed to by the
Underwriter, as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth
in the Prospectus Supplement on the cover page thereof and under the
captions "Summary of Terms Information About the Home Equity Loans",
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"Risk Factors - Sensitivity to Prepayments, Second Liens and Balloon
Loans," "The Seller", "The Servicer - Delinquency, Loan Loss and
Foreclosure Information" and "The Home Equity Loan Pool," agrees with
the records of the Depositor (or the Servicer, in the case of the
information under the heading "The Servicer -- Delinquency, Loan Loss
and Foreclosure Information") excluding any questions of legal
interpretation.
V. The Insurance Policy and the Insurance Agreement shall have been
issued by the Note Insurer and shall have been duly authenticated by an
authorized agent of the Note Insurer, if so required under applicable
state law or regulations.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to the Depositor at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriter and its counsel.
SECTION 7. Payment of Expenses. The Depositor agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the Notes
and any taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (c) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits), the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of reproducing and distributing this Agreement; (e) the fees and expenses
of qualifying the Notes under the securities laws of the several jurisdictions
designated by the Underwriter as provided in Section 5(H) hereof and of
preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Underwriter); (f) any fees charged by securities rating services for rating the
Notes; (g) the costs of the accountant's letters referred to in Section 6(T)
hereof; and (h) all other costs and expenses incident to the performance of the
obligations of the Depositor (including costs and expenses of your counsel);
provided that, except as provided in this Section 7, the Underwriter shall pay
its own costs and expenses, including the costs and expenses of its counsel, any
transfer taxes on the Notes which it may sell and the expenses of advertising
any offering of the Notes made by the Underwriter, and the Underwriter shall pay
the cost of any accountant's letters relating to any Computational Materials and
ABS Term Sheets.
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section 6 or Section 11, the Depositor shall cause the
Underwriter to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Dewey Ballantine LLP, counsel for the
Underwriter.
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SECTION 8. Indemnification and Contribution. A. The Depositor agrees to
indemnify and hold harmless the Underwriter and each person, if any, who
controls or the Underwriter within the meaning of Section 15 of the Securities
Act from and against any and all loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of the
Notes), to which the Underwriter or any such controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall reimburse the
Underwriter and each such controlling person promptly upon demand for any legal
or other expenses reasonably incurred by the Underwriter or such controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Depositor shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Prospectus, or any amendment thereof or
supplement thereto, or the Registration Statement, or any amendment thereof or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Depositor by or on behalf of the Underwriter specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Depositor may otherwise have to the Underwriter or any
controlling person of the Underwriter. The only information furnished by the
Underwriter or on behalf of the Underwriter for use in connection with the
preparation of the Registration Statement or the Prospectus is described in
Section 8(I) hereof.
B. The Underwriter agrees to indemnify and hold harmless the Depositor,
each of its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Depositor within the
meaning of Section 15 of the Securities Act against any and all loss, claim,
damage or liability, or any action in respect thereof, to which the Depositor or
any such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or
any amendment thereof or supplement thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Depositor by or on
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behalf of the Underwriter specifically for inclusion therein, and shall
reimburse the Depositor and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Depositor or any
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which the Underwriter may otherwise have to the
Depositor or any such director, officer or controlling person. The only
information furnished by the Underwriter or on behalf of the Underwriter for use
in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
C. Promptly after receipt by any indemnified party under this Section 8
of notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify any
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except to the extent
provided in the next following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel per jurisdiction) at
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any time for all such indemnified parties, which firm shall be designated in
writing by the Underwriter, if the indemnified parties under this Section 8
consist of the Underwriter or any of its controlling persons, or the Depositor,
if the indemnified parties under this Section 8 consist of the Depositor or any
of the Depositor's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(A) and 8(B) shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
D. [Reserved]
E. The Underwriter agrees, assuming all Seller-Provided Information is
accurate and complete in all material respects, to indemnify and hold harmless
the Depositor, each of the Depositor's officers and directors and each person
who controls the Depositor within the meaning of Section 15 of the Securities
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of a material fact
contained in the Computational Materials and ABS Term Sheets provided by the
Underwriter and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, claim, damage,
liability or action as such expenses are incurred. The obligations of the
Underwriter under this Section 8(E) shall be in addition to any liability which
the Underwriter may otherwise have.
The procedures set forth in Section 8(C) shall be equally applicable to
this Section 8(E).
F. If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(A), 8(B) or 8(E) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be
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<PAGE>
appropriate to reflect the relative benefits received by the Depositor on the
one hand and the Underwriter on the other, from the offering of the related
Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice required
under Section 8C., in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Depositor on the one hand and the Underwriter on the other, with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of the Depositor and the Underwriter shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the total
underwriting discounts and commissions as set forth on the cover page of the
Prospectus Supplement received by the Underwriter.
The relative fault of the Underwriter and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or by the Underwriter, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 8(F) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(F)
shall be deemed to include, for purposes of this Section 8(F), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
For purposes of this Section 8, in no case shall the Underwriter be
responsible for any amount in excess of the amount of the underwriting discounts
and commissions received by the Underwriter in connection with its purchase of
the Notes. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
G. For purposes of this Section 8, as to the Underwriter the term
"Computational Materials" and "ABS Term Sheets" means such portion, if any, of
the information delivered to the Depositor by the Underwriter pursuant to
Section 4(B) for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through a Form 8-K; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other
information)
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<PAGE>
furnished to the Underwriter by or on behalf of the Seller concerning the assets
comprising the Trust Estate.
H. The Seller agrees to indemnify each indemnified party referred to in
Section 8(A) hereof with respect to Seller-Provided Information to the same
extent as the indemnity granted under such section. The procedures set forth in
Section 8(C) shall be equally applicable to this Section 8(H).
I. The Underwriter confirms that the information regarding the
Underwriter set forth in the last paragraph on the cover page of the Prospectus
Supplement and the information regarding the Underwriter set forth under the
caption "Underwriting" in the Prospectus Supplement is correct, and the parties
hereto acknowledge that such information constitutes the only information
furnished in writing by or on behalf of the Underwriter for use in connection
with the preparation of the Registration Statement or the Prospectus.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or controlling
persons thereof, or by or on behalf of the Depositor and shall survive delivery
of any Notes to the Underwriter.
SECTION 10. [Reserved]
SECTION 11. Termination of Agreement. The Underwriter may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if any of the events or conditions described in Section 6(T)
of this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in Section 5(G), the provisions of Section
7, the indemnity agreement set forth in Section 8, and the provisions of
Sections 9 and 15 shall remain in effect.
SECTION 12. Obligations of IMC. IMC agrees with the Underwriter, for
the sole and exclusive benefit of the Underwriter and each person controlling
the Underwriter within the meaning of the Securities Act and not for the benefit
of any assignee thereof or any other person or persons dealing with the
Underwriter, in consideration of and as an inducement to their agreement to
purchase the Notes from the Depositor, to indemnify and hold harmless the
Underwriter against any failure by the Depositor to perform its obligations to
the Underwriter hereunder, including, without limitation, any failure by the
Depositor to honor any obligation to the Underwriter pursuant to Section 8
hereof.
SECTION 13. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriter, shall be delivered or sent by mail, telex or
facsimile transmission to PaineWebber Incorporated, 1285 Avenue of the
Americas, 11th Floor,
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<PAGE>
New York, New York 10019 Attention: John Fearey (Fax: (212) 713-7999);
and
B. if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to care of IMC Securities, Inc., 5901 East
Fowler Avenue, Tampa, Florida 33617-2362 Attention: Thomas Middleton
(Fax: (813) 935-0227).
SECTION 14. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriter and
the Depositor, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriter within the meaning of Section 15 of
the Securities Act, and for the benefit of directors of the Depositor, officers
of the Depositor who have signed the Registration Statement and any person
controlling the Depositor within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 14, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION 15. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriter contained in this
Agreement, or made by or on behalf of them, respectively, pursuant to the shall
survive the delivery of and payment for the Notes and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
SECTION 16. Definition of the Term "Business Day". For purposes of this
Agreement, "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 17. Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to the conflict of law rules thereof.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in the
State of New York located in the city and County of New York, and appellate
court from any thereof, in any action, suit or proceeding brought against it or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
SECTION 18. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
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<PAGE>
SECTION 19. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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<PAGE>
If the foregoing correctly sets forth the agreement between the
Depositor, IMC and the Underwriter, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
IMC SECURITIES, INC.
By: /s/ George Nicholas
--------------------------------
Name: George Nicholas
Title: Chief Executive Officer
IMC MORTGAGE COMPANY
By: /s/ George Nicholas
--------------------------------
Name: George Nicholas
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED, as
of the date first above written:
PAINEWEBBER INCORPORATED
as Underwriter
By: /s/ Chris Connelly
----------------------------
Name: Chris Connelly
Title: First Vice President
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<PAGE>
SCHEDULE A
----------
Underwriter Principal Amount
----------- ----------------
PaineWebber Incorporated
Series 1998-7A $529,000,000
Series 1998-7B 71,000,000
Total $600,000,000
Purchase Price Percentage
--------------------------
Series 1998-7A 99.94008%
Series 1998-7B 99.91600%
Selling Concession Reallowance Discount
- - ------------------ --------------------
0.15% 0.105%
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SCHEDULE B
(a) An Issuer Order authorizing the authentication and delivery of
the Notes by the Indenture Trustee.
(b) All of the items of Collateral which shall be delivered to the
Indenture Trustee or its designee.
(c) An executed counterpart of the Trust Agreement.
(d) Opinions of Counsel addressed to the Indenture Trustee and the
Note Insurer to the effect that:
(i) all instruments furnished to the Indenture Trustee as
conditions precedent to the authentication of the Notes by
the Indenture Trustee pursuant to the Indentures conform to
the requirements of the Indentures and constitute all the
documents required to be delivered thereunder for the
Indenture Trustee to authenticate the Notes;
(ii) all conditions precedent provided for in the Indentures
relating to the authentication of the Notes have been
complied with;
(iii) the Owner Trustee has power and authority to execute,
deliver and perform its obligations under the Trust
Agreement;
(iv) the Issuer has been duly formed, is validly existing as a
business trust under the laws of the State of Delaware, 12
Del. C. Section 3801, et seq., and has power, authority and
legal right to execute and deliver the Indentures, the
Insurance Agreement and the Sale and Servicing Agreement;
(v) assuming due authorization, execution and delivery thereof
by the Indenture Trustee, the Indentures are valid, legal
and binding obligations of the Issuer, enforceable in
accordance with its terms, subject to bankruptcy,
insolvency, reorganization, arrangement, moratorium,
fraudulent or preferential conveyance and other similar
laws of general application affecting the rights of
creditors generally and to general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(vi) the Notes, when executed and authenticated as provided
herein and delivered against payment therefor, will be the
valid, legal and binding obligations of the Issuer pursuant
to the terms of the Indentures, entitled to the benefits of
the Indentures, and will be enforceable in accordance with
their terms, subject to bankruptcy, insolvency,
reorganization,
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<PAGE>
arrangement, moratorium, fraudulent or preferential
conveyance and other similar laws of general application
affecting the rights of creditors generally and to general
principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law);
(vii) the Trust Agreement authorizes the Issuer to Grant the
Collateral to the Indenture Trustee as security for the
Notes and the Owner Trustee has taken all necessary action
under the Trust Agreement to Grant the Collateral to the
Indenture Trustee;
(viii)the Indentures have been duly qualified under the Trust
Indenture Act and the Notes have been registered under the
Securities Act;
(ix) the Indentures, together with the Grant of the Collateral
to the Indenture Trustee, creates a valid security interest
in the Collateral in favor of the Indenture Trustee for the
benefit of the Owners;
(x) such action has been taken with respect to delivery of
possession of the Collateral, and with respect to the
execution and filing of the Indentures and any financing
statements as are necessary to make effective and to
perfect a first priority security interest created by the
Indentures in the Collateral in favor of the Indenture
Trustee, except that with respect to the Mortgage Notes,
possession of such Mortgage Notes must be maintained by the
Indenture Trustee or an agent of the Indenture Trustee
(other than the Issuer, an Affiliate of the Issuer, or a
"securities intermediary," as defined in Section 8.102 of
the UCC); and
(xi) no authorization, approval or consent of any governmental
body having jurisdiction in the premises which has not been
obtained by the Issuer is required to be obtained by the
Issuer for the valid issuance and delivery of the Notes,
except that no opinion need be expressed with respect to
any such authorizations, approvals or consents as may be
required under any state securities "blue sky" laws.
(e) An Officer's Certificate complying with the requirements of
Section 11.1 of the Indentures and stating that:
(i) the Issuer is not in Default under the Indentures and the
issuance of the Notes applied for will not result in any
breach of any of the terms, conditions or provisions of, or
constitute a default under, the Trust Agreement, any
indenture, mortgage, deed of trust or other agreement or
instrument to which the Issuer is a party or by which it is
bound, or any order of any court or administrative agency
entered in any proceeding to which the Issuer is a party or
by which it may be bound or to which it may be subject, and
that all conditions precedent provided in the Indentures
relating to the authentication and delivery of the Notes
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<PAGE>
applied for have been complied with;
(ii) the Issuer is the owner of all of the Initial Home Equity
Loans, has not assigned any interest or participation in
the Initial Home Equity Loans (or, if any such interest or
participation has been assigned, it has been released) and
has the right to Grant all of the Home Equity Loans to the
Indenture Trustee;
(iii) the Issuer has Granted to the Indenture Trustee all of its
right, title, and interest in the Collateral, and has
delivered or caused the same to be delivered to the
Indenture Trustee;
(iv) attached thereto are true and correct copies of letters
signed by Moody's and Standard & Poor's confirming that the
Notes have been rated "Aaa" and "AAA" by Moody's and
Standard & Poor's, respectively; and
(v) all conditions precedent provided for in the Indentures
relating to the authentication of the Notes have been
complied with.
-39-
Exhibit 4.1
INDENTURE
between
IMC HOME EQUITY LOAN OWNER TRUST 1998-7,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
Dated as of December 1, 1998
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
Home Equity Loan Asset Backed Notes, Series 1998-7A
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE...............................................................2
SECTION 1.1 Definitions............................................................................2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act......................................7
SECTION 1.3 Rules of Construction..................................................................7
ARTICLE II
THE NOTES................................................................................................8
SECTION 2.1 Form...................................................................................8
SECTION 2.2 Execution, Authentication, Delivery and Dating.........................................8
SECTION 2.3 Registration; Registration of Transfer and Exchange....................................9
SECTION 2.4 Mutilated, Destroyed, Lost or Stolen Notes............................................10
SECTION 2.5 Persons Deemed Owners.................................................................11
SECTION 2.6 Payment of Principal and Interest; Defaulted Interest.................................11
SECTION 2.7 Cancellation..........................................................................12
SECTION 2.8 Authentication of Notes...............................................................12
SECTION 2.9 Release of Collateral.................................................................12
SECTION 2.10 Book-Entry Notes......................................................................13
SECTION 2.11 Notices to Clearing Agency............................................................13
SECTION 2.12 Definitive Notes......................................................................13
SECTION 2.13 Tax Treatment.........................................................................14
ARTICLE III
COVENANTS...............................................................................................14
SECTION 3.1 Payment of Principal and Interest.....................................................14
SECTION 3.2 Maintenance of Office or Agency.......................................................14
SECTION 3.3 Money for Payments To Be Held in Trust................................................14
SECTION 3.4 Existence.............................................................................16
SECTION 3.5 Protection of Collateral..............................................................16
SECTION 3.6 Annual Opinions as to Collateral......................................................17
SECTION 3.7 Performance of Obligations; Servicing of Pool I Home Equity Loans.....................17
SECTION 3.8 Negative Covenants....................................................................18
SECTION 3.9 Annual Statement as to Compliance.....................................................19
SECTION 3.10 Covenants of the Issuer...............................................................20
SECTION 3.11 Investment Company Act................................................................20
SECTION 3.12 Restricted Payments...................................................................20
SECTION 3.13 Treatment of Notes as Debt for Tax Purposes...........................................20
SECTION 3.14 Notice of Events of Default...........................................................20
SECTION 3.15 Further Instruments and Acts..........................................................20
SECTION 3.16 No Other Business.....................................................................20
SECTION 3.17 No Borrowing..........................................................................21
SECTION 3.18 Guarantees, Loans, Advances and Other Liabilities. ..................................21
SECTION 3.19 Capital Expenditures..................................................................21
</TABLE>
i
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ARTICLE IV
SATISFACTION AND DISCHARGE..............................................................................21
SECTION 4.1 Satisfaction and Discharge of Indenture...............................................21
SECTION 4.2 Application of Trust Money............................................................22
SECTION 4.3 Repayment of Moneys Held by Paying Agent..............................................22
ARTICLE V
REMEDIES................................................................................................22
SECTION 5.1 Events of Default.....................................................................22
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment....................................23
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.............24
SECTION 5.4 Remedies; Priorities..................................................................26
SECTION 5.5 Optional Preservation of the Collateral...............................................27
SECTION 5.6 Limitation of Suits...................................................................27
SECTION 5.7 Unconditional Rights of Owners To Receive Principal and Interest......................28
SECTION 5.8 Restoration of Rights and Remedies....................................................28
SECTION 5.9 Rights and Remedies Cumulative........................................................28
SECTION 5.10 Delay or Omission Not a Waiver........................................................28
SECTION 5.11 Control by Note Insurer or Owners.....................................................29
SECTION 5.12 Waiver of Past Defaults...............................................................29
SECTION 5.13 Undertaking for Costs.................................................................29
SECTION 5.14 Waiver of Stay or Extension Laws......................................................30
SECTION 5.15 Action on Notes.......................................................................30
SECTION 5.16 Performance and Enforcement of Certain Obligations....................................30
ARTICLE VI
THE INDENTURE TRUSTEE...................................................................................31
SECTION 6.1 Duties of Indenture Trustee...........................................................31
SECTION 6.2 Rights of Indenture Trustee...........................................................32
SECTION 6.3 Individual Rights of Indenture Trustee................................................32
SECTION 6.4 Indenture Trustee's Disclaimer........................................................32
SECTION 6.5 Notice of Defaults....................................................................33
SECTION 6.6 Reports by Indenture Trustee to Owners................................................33
SECTION 6.7 Compensation and Indemnity............................................................33
SECTION 6.8 Replacement of Indenture Trustee......................................................33
SECTION 6.9 Successor Indenture Trustee by Merger.................................................34
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.....................34
SECTION 6.11 Eligibility; Disqualification.........................................................35
SECTION 6.12 Preferential Collection of Claims Against Issuer......................................36
ARTICLE VII
OWNERS' LISTS AND REPORTS...............................................................................36
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Owners.....................36
SECTION 7.2 Preservation of Information; Communications to Owners.................................36
SECTION 7.3 Reports by Issuer.....................................................................36
SECTION 7.4 Reports by Indenture Trustee..........................................................37
</TABLE>
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<TABLE>
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES....................................................................37
SECTION 8.1 Collection of Money...................................................................37
SECTION 8.2 Accounts; Distributions...............................................................37
SECTION 8.3 General Provisions Regarding Accounts.................................................38
SECTION 8.4 Servicer's Monthly Statements.........................................................39
SECTION 8.5 Release of Collateral.................................................................39
SECTION 8.6 Opinion of Counsel....................................................................39
ARTICLE IX
SUPPLEMENTAL INDENTURES.................................................................................40
SECTION 9.1 Supplemental Indentures Without Consent of Owners.....................................40
SECTION 9.2 Supplemental Indentures with Consent of Owners........................................41
SECTION 9.3 Execution of Supplemental Indentures..................................................42
SECTION 9.4 Effect of Supplemental Indenture......................................................42
SECTION 9.5 Conformity with Trust Indenture Act...................................................42
SECTION 9.6 Reference in Notes to Supplemental Indentures.........................................42
SECTION 9.7 Amendments to Trust Agreement.........................................................42
ARTICLE X
REDEMPTION OF NOTES.....................................................................................43
SECTION 10.1 Redemption. ..........................................................................43
SECTION 10.2 Form of Redemption Notice.............................................................43
SECTION 10.3 Notes Payable on Redemption Date; Provision for Payment of
Indenture Trustee and Note Insurer....................................................44
ARTICLE XI
MISCELLANEOUS...........................................................................................44
SECTION 11.1 Compliance Certificates and Opinions, etc.............................................44
SECTION 11.2 Form of Documents Delivered to Indenture Trustee......................................44
SECTION 11.3 Acts of Owners........................................................................45
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer, Rating Agencies and Note Insurer.........46
SECTION 11.5 Notices to Owners; Waiver.............................................................46
SECTION 11.6 Conflict with Trust Indenture Act.....................................................46
SECTION 11.7 Effect of Headings and Table of Contents..............................................46
SECTION 11.8 Successors and Assigns................................................................47
SECTION 11.9 Separability..........................................................................47
SECTION 11.10 Benefits of Indenture.................................................................47
SECTION 11.11 Legal Holidays........................................................................47
SECTION 11.12 Governing Law.........................................................................47
SECTION 11.13 Counterparts..........................................................................47
SECTION 11.14 Recording of Indenture................................................................47
SECTION 11.15 Trust Obligation......................................................................47
SECTION 11.16 No Petition...........................................................................48
SECTION 11.17 Inspection............................................................................48
</TABLE>
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SECTION 11.18 Grant of Owner Rights to Note Insurer.................................................48
SECTION 11.19 Third Party Beneficiary...............................................................48
SECTION 11.20 Suspension and Termination of Note Insurer's Rights...................................48
</TABLE>
EXHIBITS
SCHEDULE A - Schedule of Pool I Home Equity Loans
EXHIBIT A - Form of Note
iv
<PAGE>
INDENTURE (this "Indenture" or this "Agreement") dated as of December
1, 1998, between IMC HOME EQUITY LOAN OWNER TRUST 1998-7, a Delaware business
trust (the "Issuer"), and THE CHASE MANHATTAN BANK, a New York banking
corporation, as indenture trustee and not in its individual capacity (the
"Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Owners of the IMC Home Equity Loan Asset
Backed Notes, Series 1998-7A and the Note Insurer.
GRANTING CLAUSE
Subject to the terms of this Indenture, the Issuer hereby Grants to the
Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of
the Owners of the Notes and the Note Insurer (and for the benefit of the owners
of the Series 1998-7B Notes to the limited extent provided in the Sale and
Servicing Agreement), all of the Issuer's right, title and interest whether now
existing or hereafter acquired in and to: (i) the Trust Estate; (ii) all right,
title and interest of the Issuer in the Sale and Servicing Agreement relating to
the Pool I Home Equity Loans (including the Issuer's right to cause the Seller
to repurchase Pool I Home Equity Loans from the Issuer under certain
circumstances described therein); (iii) with respect to the Pool I Home Equity
Loans, all present and future claims, demands, causes of action and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing; (iv) all funds on deposit from time to time in
the Accounts relating to the Pool I Home Equity Loans or the Notes (including
the Pool I Note Account) and (v) all other property of the Trust relating to the
Pool I Home Equity Loans from time to time (collectively, the "Collateral").
The foregoing Grant is made in trust to secure (i) the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes and the Series 1998-7B Notes to the limited extent provided in the Sale
and Servicing Agreement, equally and ratably without prejudice, priority or
distinction, (ii) the payment of all other amounts payable under this Indenture
and (iii) compliance with the provisions of this Indenture, all as provided in
this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Owners of
the Notes and the Note Insurer, acknowledges such Grant, accepts the trusts
hereunder and agrees to perform its duties required in this Indenture to the
best of its ability to the end that the interests of the Owners of the Notes and
the Note Insurer may be adequately and effectively protected. The Indenture
Trustee agrees that it will hold the Note Insurance Policy in trust and that it
will hold any proceeds of any claim relating to the Notes made upon the Note
Insurance Policy solely for the use and benefit of the Owners of the Notes in
accordance with the terms hereof and the terms of the Note Insurance Policy. The
Indenture Trustee agrees and acknowledges that the Files will be held by the
Custodian, as agent of the Indenture Trustee, in trust, for the use and benefit
of the Issuer, the Note Insurer and all present and future Owners of the Notes
in Tampa, Florida. The Indenture Trustee further agrees and acknowledges that
each other item of Collateral that is physically delivered to the Indenture
Trustee will be held by the Indenture Trustee in New York, New York.
The Indenture Trustee further acknowledges that in the event the
conveyance of the Pool I Home Equity Loans by the Depositor to the Issuer
pursuant to the Sale and Servicing Agreement is determined to
1
<PAGE>
constitute a financing, the Indenture Trustee holds the Pool I Home Equity Loans
as the designee of the Issuer, subject, however, to a prior lien in favor of the
Owners and the Note Insurer.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Except as otherwise specified herein or as the context
may otherwise require, the following terms have the respective meanings set
forth below for all purposes of this Indenture.
"Act": The meaning specified in Section 11.3(a) hereof.
"Affiliate": 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
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 foregoing.
"Authorized Officer": With respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter).
"Book-Entry Notes": A beneficial interest in the Notes, the ownership
and transfer of which shall be made through book entries by a Clearing Agency as
described in Section 2.10.
"Book-Entry Owner": With respect to a Book-Entry Note, the Person who
is the beneficial owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Business Day": Any day other than a Saturday, Sunday or a day on which
commercial banking institutions in The City of New York, Tampa, Florida, the
city in which the Corporate Trust Office is located, the city in which the
principal office of the Note Insurer is located or the city in which the
principal office of the Servicer is located are authorized or obligated by law
or executive order to be closed.
"Certificate of Trust": The certificate of trust of the Issuer
substantially in the form of Exhibit A to the Trust Agreement.
"Clearing Agency": An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant": A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date": On or about December 10, 1998.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and the Treasury Regulations promulgated thereunder.
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"Collateral": The meaning specified in the Granting Clause of this
Indenture.
"Corporate Trust Office": The principal office of the Indenture Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Agreement is located
at 450 West 33rd Street, New York, New York 10001, Attention: IMC Home Equity
Loan Owner Trust 1998-7, Series 1998-7A, or at such other address as the
Indenture Trustee may designate from time to time by notice to the Owners and
the Issuer, or the principal corporate trust office of any successor Indenture
Trustee at the address designated by such successor Indenture Trustee by notice
to the Owners, the Note Insurer and the Issuer.
"Default": Any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Definitive Notes": The meaning specified in Section 2.12.
"Depositor": IMC Securities, Inc., a Delaware corporation.
"Event of Default": The meaning specified in Section 5.1 hereof.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Final Payment Date": November 20, 2029.
"Grant": To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and grant a lien upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to this Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the granting party or otherwise, and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Indenture Trustee": The Chase Manhattan Bank, a New York banking
corporation, as Indenture Trustee under this Indenture, or any successor
Indenture Trustee under this Indenture.
"Independent": When used with respect to any specified Person, that the
Person (a) is in fact independent of the Issuer, any other obligor on the Notes,
the Depositor, the Seller and any Affiliate of any of the foregoing Persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Depositor, the Seller or any
Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, the Depositor, the Seller or any Affiliate of
any of the foregoing Persons as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
"Independent Certificate": A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1, made by an
Independent appraiser or other expert appointed by an Issuer Order and approved
by the Indenture Trustee in the exercise of reasonable care, and such opinion or
certificate shall state that the signer
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has read the definition of "Independent" in this Indenture and that the signer
is Independent within the meaning thereof.
"Issuer": IMC Home Equity Loan Owner Trust 1998-7 until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
"Issuer Order" and "Issuer Request": A written order or request signed
in the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
"Moody's": Moody's Investors Service, Inc., or any successor thereto.
"Note": The Issuer's Home Equity Loan Asset Backed Notes, Series
1998-7A, substantially in the Form of Exhibit A hereto.
"Note Register" and "Note Registrar": The respective meanings specified
in Section 2.3.
"Officer's Certificate": A certificate signed by any Authorized Officer
of the Issuer, under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 11.1, and delivered to the
Indenture Trustee.
"Opinion of Counsel": One or more written opinions of counsel who may,
except as otherwise expressly provided in this Indenture, be employees of or
counsel to the Issuer and who shall be satisfactory to the Indenture Trustee and
the Note Insurer, and which opinion or opinions shall be addressed to the
Indenture Trustee, as Indenture Trustee, and the Note Insurer and shall comply
with any applicable requirements of Section 11.1 and shall be in form and
substance satisfactory to the Indenture Trustee and the Note Insurer.
"Outstanding": With respect to any Note and as of the date of
determination, any Note theretofore authenticated and delivered under this
Indenture except:
(i) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Owners of such Notes
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision for such notice has been made, satisfactory to the Indenture
Trustee);
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser; provided, that in determining
whether the Owners of the requisite Outstanding Amount of the Notes
have given any request, demand, authorization, direction, notice,
consent, or waiver hereunder or under any Operative Document, Notes
owned by the Issuer, any other obligor upon the Notes, the Depositor,
the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent, or waiver, only Notes that the
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Indenture Trustee knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Issuer, any other obligor upon
the Notes, the Depositor, the Seller or any Affiliate of any of the
foregoing Persons;
(iv) Notes alleged to have been destroyed, lost or stolen for
which replacement Notes have been issued as provided for in Section 2.4
thereof; and
(v) Notes as to which the Indenture Trustee has made the final
distribution thereon, whether or not such Notes are ever returned to
the Indenture Trustee.
"Outstanding Amount": The aggregate principal amount of all Notes that
are Outstanding at the date of determination.
"Owner": The Person in whose name a Note is registered on the Note
Register; provided that the exercise of any rights of such Owner under this
Indenture shall at all times be subject to Section 11.18 hereto.
"Owner Trustee": Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, or any successor
Owner Trustee under the Trust Agreement.
"Paying Agent": The Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11
and is authorized by the Issuer to make payments to and distributions from the
Pool I Note Account, including payment of principal of or interest on the Notes
on behalf of the Issuer.
"Payment Date": The 20th day of any month or if such day is not a
Business Day, the next succeeding Business Day, commencing in January 1999.
"Predecessor Note": With respect to any particular Note, every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 2.4 in lieu of a mutilated, lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Note.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Rating Agency": Either or both of (i) Standard & Poor's or (ii)
Moody's. If no such organization or successor is any longer in existence,
"Rating Agency" shall be a nationally recognized statistical rating organization
or other comparable Person designated by the Note Insurer, notice of which
designation shall be given to the Issuer, the Depositor, the Indenture Trustee,
the Owner Trustee and the Servicer.
"Rating Agency Condition": With respect to any action to which a Rating
Agency Condition applies, that each Rating Agency shall have been given 10 days
(or such shorter period as is acceptable to each Rating Agency) prior notice
thereof and that each of the Rating Agencies shall have notified the Depositor,
the Seller, the Servicer, the Note Insurer and the Issuer in writing that such
action will not result in a reduction or withdrawal of the then current rating
of the Notes.
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"Record Date": With respect to any Payment Date, the last day of the
calendar month immediately preceding the calendar month in which such Payment
Date occurs, whether or not such day is a Business Day.
"Redemption Date": The date on which the Notes are redeemed pursuant to
Article X hereof.
"Redemption Price": The sum of (i) the then outstanding Note Principal
Balance plus all accrued and unpaid interest thereon to the Redemption Date,
(ii) any portion of the Trust Fees and Expenses due and unpaid on such date (as
certified to the Indenture Trustee by the Note Insurer with respect to the
Premium Amount and by the Owner Trustee with respect to the Owner Trustee Fee),
(iii) any expenses incurred by the Indenture Trustee in conducting the Auction
Sale (and all previous auctions for such Series of Notes), (iv) all amounts owed
to the Note Insurer with respect to the Insurance Agreement (including any
amount owed on the unrelated Loan Pool) as certified to the Indenture Trustee by
the Note Insurer, (v) the Auction Sale Reserve Deposit and (vi) any unreimbursed
Delinquency Advances and Servicing Advances with respect to the related Loan
Pool (as certified to the Indenture Trustee by the Servicer).
"Registered Owner": The Person in whose name a Note is registered on
the Note Register on the applicable Record Date.
"Responsible Officer": With respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale and Servicing Agreement": The Sale and Servicing Agreement dated
as of December 1, 1998, among the Issuer, the Depositor, the Seller, the
Servicer, and the Indenture Trustee.
"Securities Act": The Securities Act of 1933, as amended.
"Seller": IMC Mortgage Company, a Florida corporation, and any
successor in interest.
"Series 1998-7B Indenture": The meaning specified in Section 3.8(iv)
hereof.
"Series 1998-7B Notes": The Issuer's Home Equity Loan Asset Backed
Notes, Series 1998-7B, issued pursuant to the Series 1998-7B Indenture.
"Servicer": Ocwen Federal Bank FSB, a federal savings bank, and any
Successor Servicer under the Sale and Servicing Agreement.
"Standard & Poor's": Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., or any successor thereto.
"State": Any one of the 50 States of the United States of America or
the District of Columbia.
"Successor Servicer": The meaning specified in Section 3.7(e).
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"Trust Estate": The assets relating to the Pool I Home Equity Loans and
subject to this Agreement, the Sale and Servicing Agreement and the Trust
Agreement and assigned to the Trust, which assets consist of (a) the Pool I Home
Equity Loans listed in Schedule I to the Sale and Servicing Agreement, including
the related Files that the Seller and the Depositor cause to be delivered to the
Indenture Trustee, all payments of principal received, collected or otherwise
recovered after the Cut-Off Date for each Pool I Home Equity Loan (other than
any principal payments due thereon on or prior to the Cut-Off Date), all
payments of interest accruing on each Pool I Home Equity Loan after the Cut-Off
Date therefor (other than any interest payments due thereon on or prior to the
Cut-Off Date) and all other proceeds received in respect of such Pool I Home
Equity Loans, (b) the Note Insurance Policy, to the extent it relates to the
Notes, (c) any Insurance Policies relating to the Pool I Home Equity Loans, (d)
all cash, instruments or other property held or required to be deposited in the
Principal and Interest Account relating to the Pool I Home Equity Loans and the
Pool I Note Account, including all investments made with funds in such accounts
(but not including any income on funds deposited in, or investments made with
funds deposited in, the Principal and Interest Account relating to the Pool I
Home Equity Loans, which income shall belong to and be for the account of the
Servicer, and not including any income on funds deposited in, or investments
made with funds deposited in, the Pool I Note Account, which income shall belong
to and be for the account of the Issuer), (e) the Issuer's rights under the Sale
and Servicing Agreement, and (f) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid assets,
including, without limitation, all insurance proceeds and condemnation awards.
"Trust Indenture Act" or "TIA": The Trust Indenture Act of 1939, as
amended, as in force on the date hereof, unless otherwise specifically provided.
"UCC": Unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
(b) Except as otherwise specified herein or as the context may
otherwise require, for all purposes of this Indenture capitalized terms used but
not otherwise defined herein have the respective meanings set forth in the Sale
and Servicing Agreement or, if not defined therein, in the Trust Agreement.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security Owner" means an Owner.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the Indenture securities means the Issuer and any other
obligor on the Indenture securities.
All other TIA terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction. Unless the context otherwise
requires:
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(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the
plural include the singular; and
(vi) any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to
time amended, modified or supplemented (as provided in such agreements)
and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and
assigns.
ARTICLE II
THE NOTES
SECTION 2.1 Form. The Notes shall be designated as the "IMC Home Equity
Loan Asset Backed Notes, Series 1998-7A" and, together with the Indenture
Trustee's certificate of authentication, shall be in substantially the form set
forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution thereof. Any portion of the text of any Note may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes.
The terms of the Notes set forth in Exhibit A are part of the terms of
this Indenture.
The Notes may be marked as temporary, and any Note being so marked may
be cancelled and destroyed for substitution by a replacement Note, subject to
the provisions of Section 2.2.
SECTION 2.2 Execution, Authentication, Delivery and Dating. The Notes
shall be executed on behalf of the Issuer by an Authorized Officer of the Owner
Trustee. The signature of any such Authorized Officer on the Notes may be manual
or facsimile.
Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Owner Trustee shall bind the Issuer,
notwithstanding that such individuals or any of them
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have ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
Subject to the satisfaction of the conditions set forth in Section 2.8,
the Indenture Trustee shall authenticate and deliver Notes for original issue in
an aggregate principal amount of $529,000,000. The aggregate principal amount of
Notes Outstanding at any time may not exceed such amount.
The Notes that are authenticated and delivered by the Indenture Trustee
to or upon the order of the Issuer on the Closing Date shall be dated December
10, 1998. All other Notes that are authenticated after the Closing Date for any
other purpose under this Indenture shall be dated the date of their
authentication. The Notes shall be issuable as registered Notes in the minimum
denomination of $25,000 and integral multiples of $1,000 in excess thereof.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.3 Registration; Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee initially shall be the "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar with the consent of the Note Insurer, the Issuer will give the
Indenture Trustee prompt written notice of the appointment of such Note
Registrar and of the location, and any change in the location, of the Note
Register, and the Indenture Trustee shall have the right to inspect the Note
Register at all reasonable times and to obtain copies thereof, and the Indenture
Trustee and the Note Insurer shall have the right to rely upon a certificate
executed on behalf of the Note Registrar by an Authorized Officer thereof as to
the names and addresses of the Owners of the Notes and the principal amounts and
number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, the Issuer
shall execute, and the Indenture Trustee shall authenticate and the Owner shall
obtain from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes in any authorized denominations, of a like
aggregate principal amount.
At the option of any Owner, Notes owned by such Owner may be exchanged
for other Notes in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Owner shall obtain from the
Indenture Trustee, the Notes which the Owner making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
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Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by the
Owner thereof or such Owner's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
Any Owner using the assets of (i) an employee benefit plan (as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a
plan described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended, or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity to purchase the Notes, or to whom
the Notes are transferred, will be deemed to have represented that the
acquisition and continued holding of the Notes will be covered by a U.S.
Department of Labor Class Exemption.
No service charge shall be made to an Owner for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.4 or Section 9.6 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make, and the Note Registrar need not register,
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to such
Note.
SECTION 2.4 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer, the Note Insurer and the
Indenture Trustee harmless, then, in the absence of notice to the Issuer, the
Note Registrar or the Indenture Trustee that such Note has been acquired by a
bona fide purchaser, and provided that the requirements of Section 8-405 of the
UCC are met, the Issuer shall execute, and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note; provided,
however, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within seven days shall be due and payable, or shall
have been called for redemption, instead of issuing a replacement Note, the
Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer, the Note Insurer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer, the Note Insurer or the Indenture Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Owner of such Note, other than the Note
Insurer, of a sum sufficient to cover any tax or other
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governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Indenture Trustee)
connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.5 Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Note Insurer, the
Indenture Trustee and any agent of the Issuer, the Note Insurer or the Indenture
Trustee may treat the Person in whose name any Note is registered (as of the day
of determination) as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Issuer, the Note Insurer, the Indenture Trustee or any agent of the Issuer or
the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.6 Payment of Principal and Interest; Defaulted Interest.
(a) The Notes shall accrue interest at the Series 1998-7A Note Rate as
set forth in the Sale and Servicing Agreement, and such interest shall be
payable on each Payment Date as specified therein, subject to Section 3.1
hereof. Any installment of interest or principal, if any, payable on any Note
that is punctually paid or duly provided for by the Issuer on the applicable
Payment Date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date by check mailed first-class
postage prepaid to such Person's address as it appears on the Note Register on
such Record Date, except that, unless Definitive Notes have been issued pursuant
to Section 2.12, with respect to Notes registered on the Record Date in the name
of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds to
the account designated by such nominee and except for the final installment of
principal payable with respect to such Note on a Payment Date or on the
applicable Final Payment Date (and except for the Redemption Price for any Note
called for redemption pursuant to Section 10.1), which shall be payable as
provided below. The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments on each
Payment Date as provided in the Sale and Servicing Agreement and the form of the
Notes set forth in Exhibit A. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid,
on the earlier of (i) the Final Payment Date, (ii) the Redemption Date or (iii)
the date on which an Event of Default shall have occurred and be continuing, if
the Indenture Trustee or the Owners of Notes representing not less than a
majority of the Outstanding Amount of the Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2. All principal
payments on the Notes shall be made pro rata to the Owners. The Indenture
Trustee shall notify the Person in whose name a Note is registered at the close
of business on the Record Date preceding the Payment Date on which the Issuer
expects that the final installment of principal of and interest on such Note
will be paid. Such notice shall be mailed or transmitted by facsimile prior to
such final Payment Date and shall specify that such final installment will be
payable only upon presentation and surrender of such Note and shall specify the
place where such Note may be presented and surrendered for payment of such
installment. A copy of such form of notice shall be sent to the Note Insurer by
the Indenture Trustee. Notices in connection with redemptions of Notes shall be
mailed to Owners as provided in Section 10.2.
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SECTION 2.7 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Notes may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time, unless the Issuer shall direct by an Issuer Order that they
be destroyed or returned to it; provided, that such Issuer Order is timely and
the Notes have not been previously disposed of by the Indenture Trustee.
SECTION 2.8 Authentication of Notes. The Notes may be authenticated by
the Indenture Trustee upon Issuer Request.
SECTION 2.9 Release of Collateral.
(a) Subject to subsections (b) and (c) hereof, Section 11.1 hereof and
the terms of the Operative Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(l) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates.
(b) The Servicer, on behalf of the Issuer, shall be entitled to obtain
a release from the lien of this Indenture for any Pool I Home Equity Loan and
the related Property at any time (i) after a payment by the Seller or the Issuer
of the Loan Purchase Price of the Pool I Home Equity Loan, (ii) after a
Qualified Replacement Mortgage is substituted for such Pool I Home Equity Loan
and payment of the Substitution Amount if any, (iii) after liquidation of the
Pool I Home Equity Loan in accordance with Section 4.13 of the Sale and
Servicing Agreement and the deposit of all Liquidation Proceeds thereon in the
Principal and Interest Account, or (iv) upon the termination of a Pool I Home
Equity Loan (due to, among other causes, a prepayment in full of the Pool I Home
Equity Loan and sale or other disposition of the related Property), if the
Issuer delivers to the Indenture Trustee and the Note Insurer an Issuer Request
(A) identifying the Pool I Home Equity Loan and the related Property to be
released, (B) requesting the release thereof, (C) setting forth the amount
deposited in the Principal and Interest Account with respect thereto, and (D)
certifying that the amount deposited in the Principal and Interest Account (x)
equals the Loan Purchase Price of the Pool I Home Equity Loan, in the event a
Pool I Home Equity Loan and the related Property are being released from the
lien of this Indenture pursuant to item (i) above, (y) equals the Substitution
Amount related to the Qualified Replacement Mortgage and the Pool I Home Equity
Loan being released from the lien of this Indenture pursuant to item (ii) above,
or (z) equals the entire amount of recoveries received with respect to such Pool
I Home Equity Loan and the related Property in the event of a release from the
lien of this Indenture pursuant to items (iii) or (iv) above.
(c) The Indenture Trustee shall, if requested in writing by the
Servicer, temporarily release or cause the Custodian to temporarily release to
the Servicer the File pursuant to the provisions of Section 4.14 of the Sale and
Servicing Agreement upon compliance by the Servicer of the provisions thereof
provided that the Indenture Trustee's File shall have been stamped to signify
the Issuer's pledge to the Indenture Trustee under this Indenture.
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SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, will
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Issuer. The Book-Entry Notes shall be registered initially
on the Note Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner of any Note will receive a definitive Note
representing such Book-Entry Owner's interest in such Note, except as provided
in Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Book-Entry Owners pursuant to
Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar, the Note Insurer and the Indenture
Trustee shall be entitled to deal with the Clearing Agency for
all purposes of this Indenture (including the payment of
principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole Owner of the
Notes, and shall have no obligation to the Book-Entry Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the
provisions of this Section shall control;
(iv) the rights of Book-Entry Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Book-Entry
Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of
and interest on the Notes to such Clearing Agency
Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Owners of Notes
evidencing a specified percentage of the Outstanding Amount of
the Notes, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received
instructions to such effect from Book-Entry Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial
interest in the Notes and has delivered such instructions to
the Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Owners is required under this Indenture, unless and until
Definitive Notes shall have been issued to such Book-Entry Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Owners of the Notes to the
Clearing Agency, and shall have no obligation to such Book-Entry Owners.
SECTION 2.12 Definitive Notes. If (i) the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Notes and the Issuer is unable to locate a qualified successor, (ii)
the Issuer at its option advises the Indenture Trustee in writing that it elects
to terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Owners of the Book-Entry Notes
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of such Notes advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of such Book-Entry Owners, then the Clearing Agency shall
notify all Book-Entry Owners and the Indenture Trustee of the occurrence of such
event and of the availability of Definitive Notes to Book-Entry Owners
requesting the
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same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Registrar, the Note Insurer or
the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Notes, the Indenture Trustee
shall recognize the Owners of the Definitive Notes as Owners.
SECTION 2.13 Tax Treatment. The Issuer has entered into this Indenture,
and the Notes will be issued, with the intention that, for federal, state and
local income, single business and franchise tax purposes, the Notes will qualify
as indebtedness of the Issuer secured by the Collateral. The Issuer, by entering
into this Indenture, and each Owner, by its acceptance of a Note (and each
Book-Entry Owner by its acceptance of an interest in the applicable Book-Entry
Note), agree to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer will duly and
punctually pay (or will cause to be duly and punctually paid) the principal of
and interest, if any, on the Notes in accordance with the terms of the Notes and
this Indenture. Without limiting the foregoing, subject to and in accordance
with Section 8.2(c), on each Payment Date the Issuer will cause to be
distributed all amounts on deposit in the Pool I Note Account deposited or
retained therein pursuant to the Sale and Servicing Agreement for the benefit of
the Owners of the Notes, to the Owners and the Note Insurer. Amounts properly
withheld under the Code by any Person from a payment to any Owner of interest
and/or principal shall be considered as having been paid by the Issuer to such
Owner for all purposes of this Indenture.
The Notes shall be non-recourse obligations of the Issuer and shall be
limited in right of payment to amounts available from the Collateral and any
amounts received by the Indenture Trustee under the Note Insurance Policy in
respect of the Notes, as provided in this Indenture and the Sale and Servicing
Agreement. The Issuer shall not otherwise be liable for payments on the Notes.
If any other provision of this Indenture shall be deemed to conflict with the
provisions of this Section 3.1, the provisions of this Section 3.1 shall
control.
SECTION 3.2 Maintenance of Office or Agency. The Issuer will maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. The Issuer will give
prompt written notice to the Indenture Trustee and the Note Insurer of the
location, and of any change in the location, of any such office or agency. If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Issuer hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As provided in
Section 8.2 (a ) and (b), all payments of amounts due and payable with respect
to any Notes that are to be made from amounts
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withdrawn from the Principal and Interest Account or retained in the Pool I Note
Account pursuant to Section 8.2(c) shall be made on behalf of the Issuer by the
Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from the
Principal and Interest Account or retained in the Pool I Note Account for
payments of Notes shall be paid over to the Issuer except as provided in this
Section 3.3.
On or before the second Business Day preceding each Payment Date and
Redemption Date, the Indenture Trustee shall deposit or cause to be deposited in
the Pool I Note Account an aggregate sum sufficient to pay the amounts due on
such Payment Date under the Notes, such sum to be held in trust for the benefit
of the Persons entitled thereto.
Subject to the prior consent of the Note Insurer, any Paying Agent
shall be appointed by Issuer Order with written notice thereof to the Indenture
Trustee and the Note Insurer. Any Paying Agent appointed by the Issuer shall be
a Person who would be eligible to be Indenture Trustee hereunder as provided in
Section 6.11. The Issuer shall not appoint any Paying Agent (other than the
Indenture Trustee) which is not, at the time of such appointment, a Designated
Depository Institution.
The Issuer will cause each Paying Agent to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent shall agree with the
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby
so agrees), subject to the provisions of this Section 3.3, that such Paying
Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the
Owners entitled thereto until such sums shall be paid to such
Owners or otherwise disposed of as herein provided and pay
such sums to such Owners as herein provided;
(ii) give the Indenture Trustee and the Note Insurer notice of
any default by the Issuer (or any other obligor upon the
Notes) of which it has actual knowledge in the making of any
payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such
Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the
payment of Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent at the time of
its appointment;
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of
any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith; provided, however, that with respect to withholding
and reporting requirements applicable to original issue
discount (if any) on the Notes, the Issuer shall have first
provided the calculations pertaining thereto to the Indenture
Trustee; and
(vi) not commence a bankruptcy proceeding against the Issuer
in connection with this Indenture.
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The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds or
abandoned property, any money held by the Indenture Trustee or any Paying Agent
in trust for the payment of any amount due with respect to any Note and
remaining unclaimed for two years after such amount has become due and payable
shall be discharged from such trust and be paid to the Issuer on Issuer Request;
and the Owner of such Note shall thereafter, as an unsecured general creditor,
look only to the Issuer for payment thereof (but only to the extent of the
amounts so paid to the Issuer), and all liability of the Indenture Trustee or
such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Indenture Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense and direction of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer. The Indenture Trustee shall also adopt and employ,
at the expense and direction of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice of
such repayment to Owners whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Owner).
SECTION 3.4 Existence.
(a) Subject to subsection (b) of this Section 3.4, the Issuer will keep
in full effect its existence, rights and franchises as a business trust under
the laws of the State of Delaware (unless it becomes, or any successor Issuer
hereunder is or becomes, organized under the laws of any other State or of the
United States of America, in which case the Issuer will keep in full effect its
existence, rights and franchises under the laws of such other jurisdiction) and
will obtain and preserve its qualification to do business in each jurisdiction
in which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes and the Collateral.
(b) Any successor to the Owner Trustee appointed pursuant to Section
10.2 of the Trust Agreement shall be the successor Owner Trustee under this
Indenture without the execution or filing of any paper, instrument or further
act to be done on the part of the parties hereto.
(c) Upon any consolidation or merger of or other succession to the
Owner Trustee, the Person succeeding to the Owner Trustee under the Trust
Agreement may exercise every right and power of the Owner Trustee under this
Indenture with the same effect as if such Person had been named as the Owner
Trustee herein.
SECTION 3.5 Protection of Collateral. The Issuer will from time to time
and upon the direction of the Note Insurer execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(i) provide further assurance with respect to the Grant of all
or any portion of the Collateral;
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(ii) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(iv) enforce any rights with respect to the Collateral; or
(v) preserve and defend title to the Collateral and the rights
of the Indenture Trustee, the Owners and the Note Insurer in
such Collateral against the claims of all persons and parties.
SECTION 3.6 Annual Opinions as to Collateral. On or before December 15
in each calendar year, beginning in 1999, the Issuer shall furnish to the
Indenture Trustee and the Note Insurer an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has been taken with respect to
the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as is necessary to maintain the lien and security interest created by
this Indenture and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until December 15 of the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Pool I Home Equity
Loans.
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any of such Person's material covenants or obligations under any instrument
or agreement included in the Collateral or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Sale and Servicing Agreement or such
other instrument or agreement.
(b) Subject to the prior consent of the Note Insurer, the Issuer may
contract with or otherwise obtain the assistance of other Persons to assist it
in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee and the Note Insurer in
an Officer's Certificate of the Issuer shall be deemed to be action taken by the
Issuer. Initially, the Issuer has contracted with the Servicer pursuant to the
Sale and Servicing Agreement to assist the Issuer in performing its duties under
this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Operative Documents
and in the instruments and agreements included in the Collateral, including but
not limited to (i) filing or causing to be filed all UCC financing statements
and continuation statements required to be filed by the terms of this Indenture
and the Sale and Servicing Agreement and (ii) recording or causing to be
recorded all Mortgages, Assignments of Mortgage, all intervening Assignments of
Mortgage and all assumption and modification agreements required to be recorded
by the terms of the Sale and Servicing Agreement, in accordance with and within
the time periods
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provided for in this Indenture and/or the Sale and Servicing Agreement, as
applicable. Except as otherwise expressly provided therein, the Issuer shall not
waive, amend, modify, supplement or terminate any Operative Document or any
provision thereof without the consent of the Indenture Trustee, the Note
Insurer, and the Owners of at least a majority of the Outstanding Amount of the
Notes.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Termination Event under the Sale and Servicing Agreement, the Issuer shall
promptly notify the Indenture Trustee, the Note Insurer and the Rating Agencies
thereof, and shall specify in such notice the action, if any, the Issuer is
taking with respect of such default. If such Servicer Termination Event shall
arise from the failure of the Servicer to perform any of its duties or
obligations under the Sale and Servicing Agreement with respect to the Pool I
Home Equity Loans, the Issuer shall take all reasonable steps available to it to
remedy such failure.
(e) As promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 4.20 of
the Sale and Servicing Agreement, the Issuer, upon the prior written consent of
or upon the direction of the Note Insurer, shall appoint a successor servicer
(the "Successor Servicer") in accordance with the provisions of Section 4.20 of
the Sale and Servicing Agreement.
(f) Upon any termination of the Servicer's rights and powers pursuant
to the Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee and the Note Insurer. As soon as a Successor Servicer is
appointed pursuant to Section 4.20 of the Sale and Servicing Agreement, the
Issuer shall notify the Indenture Trustee of such appointment, specifying in
such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees (i) that it will not, without the
prior written consent of the Indenture Trustee and the Note Insurer, or, if a
Note Insurer Default has occurred and is continuing, the Owners of at least a
majority in Outstanding Amount of the Notes, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral (except to the
extent otherwise provided in the Sale and Servicing Agreement) or the Operative
Documents, or waive timely performance or observance by the Servicer or the
Seller under the Sale and Servicing Agreement; and (ii) that any such amendment
shall not (A) increase or reduce in any manner the amount of, or accelerate or
delay the timing of, distributions that are required to be made for the benefit
of the Owners or (B) reduce the aforesaid percentage of the Notes that is
required to consent to any such amendment, without the consent of the Owners of
all the outstanding Notes. If any such amendment, modification, supplement or
waiver shall be so consented to by the Indenture Trustee and the Note Insurer,
the Issuer agrees, promptly following a request by the Indenture Trustee or the
Note Insurer to do so, to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as the
Indenture Trustee or the Note Insurer may deem necessary or appropriate in the
circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture or
the Sale and Servicing Agreement, sell, transfer,
exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those
included in the Collateral, unless directed to do so
by the Indenture Trustee or the Note Insurer;
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(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the
Notes (other than amounts properly withheld from such
payments under the Code) or assert any claim against
any present or former Owner by reason of the payment
of the taxes levied or assessed upon any part of the
Collateral;
(iii) engage in any business or activity other than as
permitted by the Trust Agreement or other than in
connection with, or relating to, the issuance of
Notes pursuant to this Indenture, or amend the Trust
Agreement as in effect on the Closing Date other than
in accordance with Section 11.1 thereof,
(iv) issue debt obligations under any indenture other than
this Indenture and the Indenture dated as of December
1, 1998 (the "Series 1998-7B Indenture"), between the
Issuer and the Indenture Trustee relating to the
Series 1998-7B Notes, as contemplated by the Sale and
Servicing Agreement;
(v) incur or assume any indebtedness or guaranty any
indebtedness of any Person, except for such
indebtedness as may be incurred by the Issuer in
connection with the issuance of the Notes pursuant to
this Indenture and the Series 1998-7B Indenture;
(vi) dissolve or liquidate in whole or in part or merge or
consolidate with any other Person;
(vii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this
Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be
released from any covenants or obligations with
respect to the Notes under this Indenture except as
may be expressly permitted hereby, (B) permit any
lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of
this Indenture) to be created on or extend to or
otherwise arise upon or burden the Collateral or any
part thereof or any interest therein or the proceeds
thereof (other than tax liens, mechanics' liens and
other liens that arise by operation of law, in each
case on any of the Properties and arising solely as a
result of an action or omission of the related
Mortgagor) or (C) permit the lien of this Indenture
not to constitute a valid first priority (other than
with respect to any such tax, mechanics' or other
lien) security interest in the Collateral;
(viii) take any other action or fail to take any action
which may cause the Issuer to be taxable as (a) an
association pursuant to Section 7701 of the Code and
the corresponding regulations or (b) as a taxable
mortgage pool pursuant to Section 7701(i) of the Code
and the corresponding regulations.
SECTION 3.9 Annual Statement as to Compliance. The Issuer will deliver
to the Indenture Trustee and the Note Insurer, within 120 days after the end of
each fiscal year of the Issuer (commencing with the 1999 fiscal year), an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(i) a review of the activities of the Issuer during such
year and of its performance under this Indenture has
been made under such Authorized Officer's
supervision; and
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(ii) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with
all conditions and covenants under the Indenture
throughout such year, or, if there has been a default
in its compliance with any such condition or
covenant, specifying each such default known to such
Authorized Officer and the nature and status thereof.
SECTION 3.10 Covenants of the Issuer. All covenants of the Issuer in
the Indenture are covenants of the Issuer and are not covenants of the Owner
Trustee. The Owner Trustee is, and any successor Owner Trustee under the Trust
Agreement will be, entering into this Indenture solely as Owner Trustee under
the Trust Agreement and not in its respective individual capacity, and in no
case whatsoever shall the Owner Trustee or any such successor Owner Trustee be
personally liable on, or for any loss in respect of, any of the statements,
representations, warranties or obligations of the Issuer hereunder, as to all of
which the parties hereto agree to look solely to the property of the Issuer.
SECTION 3.11 Investment Company Act. The Issuer shall not become an
"investment company" or under the "control" of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (or any
successor or amendatory statute), and the rules and regulations thereunder
(taking into account not only the general definition of the term "investment
company" but also any available exceptions to such general definition);
provided, however, that the Issuer shall be in compliance with this Section 3.11
if it shall have obtained an order exempting it from regulation as an
"investment company" so long as it is in compliance with the conditions imposed
in such order.
SECTION 3.12 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security or
(iii) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
to the Servicer, the Indenture Trustee, the Owner Trustee, the Note Insurer, the
Owners and the Certificateholders as contemplated by, and to the extent funds
are available for such purpose under, the Sale and Servicing Agreement or the
Trust Agreement. The Issuer will not, directly or indirectly, make or cause to
be made payments to or distributions from the Principal and Interest Account
except in accordance with this Indenture and the Operative Documents.
SECTION 3.13 Treatment of Notes as Debt for Tax Purposes. The Issuer
shall treat the Notes as indebtedness for all federal, state and local income
and franchise tax purposes.
SECTION 3.14 Notice of Events of Default. The Issuer shall give the
Indenture Trustee, the Note Insurer and the Rating Agencies prompt written
notice of each Event of Default hereunder and each default on the part of the
Servicer, the Depositor or the Seller of its obligations under the Sale and
Servicing Agreement.
SECTION 3.15 Further Instruments and Acts. Upon request of the
Indenture Trustee or the Note Insurer, the Issuer will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
SECTION 3.16 No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the Home
Equity Loans and the issuance of the Notes pursuant to this Indenture, the
Certificates issued pursuant to the Trust Agreement and the notes issued
pursuant to
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the Series 1998-7B Indenture, in the manner contemplated by this Indenture and
the Operative Documents and all activities incidental thereto.
SECTION 3.17 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes, the notes issued pursuant to the Series
1998-7B Indenture and amounts due to the Note Insurer under this Indenture, the
Series 1998-7B Indenture and the Insurance Agreement.
SECTION 3.18 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by this Indenture, the Series 1998-7B Indenture or the Operative
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.19 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes (except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Owners to receive payments of
principal thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8 and
3.10 hereof, (v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.7 and
the obligations of the Indenture Trustee under Section 4.2) and (vi) the rights
of Owners as beneficiaries hereof with respect to the property so deposited with
the Indenture Trustee payable to all or any of them), and the Indenture Trustee,
on demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when all of the following have occurred:
(A) either
(1) all Notes theretofore authenticated and delivered (other than (i)
Notes that have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.4 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the Indenture Trustee for
cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation
a. have become due and payable,
b. are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name, and at the
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expense, of the Issuer, and the Issuer, in the case of a. or b. above, has
irrevocably deposited or caused to be irrevocably deposited with the Indenture
Trustee cash or direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to the Final Payment Date or
Redemption Date (if Notes shall have been called for redemption pursuant to
Section 10.1), as the case may be;
(B) the later of (a) eighteen months after payment in full of all
outstanding obligations under the Notes, (b) the payment in full, in respect of
the Pool I Home Equity Loans, of all unpaid Indenture Trustee Fees and Premium
Amounts and all sums owing to the Note Insurer under the Insurance Agreement and
(c) the date on which the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.1 and, subject to Section
11.2, each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture with respect to the Notes have
been complied with.
SECTION 4.2 Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Sections 3.3 and 4.3 hereof shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Owners of the Notes for the payment or
redemption of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
moneys need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or required by law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.3 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default,"wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any Current Interest on any Note when the
same becomes due and payable; or
(b) default in the payment of the principal of or any installment of
the principal of any Note when the same becomes due and payable; or
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(c) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section 5.1 specifically dealt with), or any representation or warranty of
the Issuer made in this Indenture, the Insurance Agreement, the Sale and
Servicing Agreement or in any certificate or other writing delivered pursuant
hereto or in connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such default
shall continue or not be cured, or the circumstance or condition in respect of
which such misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer by the Indenture
Trustee or to the Issuer and the Indenture Trustee by the Owners of a majority
of the Outstanding Amount of the Notes, a written notice specifying such default
or incorrect representation or warranty and requiring it to be remedied and
stating that such notice is a notice of Default hereunder; or
(d) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Collateral in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Collateral, or
ordering the winding-up or liquidation of the Issuer's affairs, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(e) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Collateral, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer generally
to pay its debts as such debts become due, or the taking of any action by the
Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee and the Note Insurer,
within five days after the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default under clauses (c) and (d) above, its
status and what action the Issuer is taking or proposes to take with respect
thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, the Indenture Trustee (x)
shall, at the direction or upon the prior written consent of the Note Insurer or
(y) may, if a Note Insurer Default has occurred and is continuing, at the
direction of the Owners of Notes representing not less than a majority of the
Outstanding Amount of the Notes, declare all the Notes to be immediately due and
payable, by a notice in writing to the Issuer (and to the Indenture Trustee if
given by Owners), and upon any such declaration the unpaid principal amount of
such Notes, together with accrued and unpaid interest thereon through the date
of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity with
respect to an Event of Default has been made and before a judgment or decree for
payment of the money due has been obtained by the Indenture Trustee as
hereinafter in this Article V provided, the Note Insurer or, if a Note Insurer
Default exists, the Owners of Notes representing a majority of the Pool I Note
Principal Balance, with the prior written consent of the Note Insurer, by
written notice to the Issuer and the Indenture Trustee, may waive the related
Event of Default and rescind and annul such declaration and its consequences if:
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(a) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(i) all payments of principal of and interest on all
Notes and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default
giving rise to such acceleration had not occurred;
and
(ii) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee
and its agents and counsel; and
(iii) all Events of Default, other than the nonpayment of
the principal of the Notes that has become due solely
by such acceleration, have been cured or waived as
provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if (i) default is made in the payment of
any interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment of
the principal of or any installment of the principal of any Note when the same
becomes due and payable, the Issuer will, upon demand of the Indenture Trustee
and at the direction of the Note Insurer, pay to the Indenture Trustee, for the
benefit of the Owners of the Notes and the Note Insurer, the whole amount then
due and payable on such Notes for principal and interest, with interest upon the
overdue principal and, to the extent payment at such rate of interest shall be
legally enforceable, upon overdue installments of interest at the rate borne by
the Notes and in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and
the Note Insurer and their respective agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, shall at the direction of the Note Insurer, and if a Note Insurer Default
has occurred and is continuing, the Indenture Trustee may, in its discretion,
and shall at the direction of the Owners of the Notes representing a majority of
the Outstanding Amount of the Notes, institute a Proceeding for the collection
of the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor upon
such Notes and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Notes, wherever situated, the moneys adjudged
or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee shall, at the direction of the Note Insurer, and if a Note Insurer
Default has occurred and is continuing, the Indenture Trustee may, in its
discretion, and shall at the direction of the Owners of the Notes representing a
majority of the Outstanding Amount of the Notes, as more particularly provided
in Section 5.4, proceed to protect and enforce its rights and the rights of the
Note Insurer and the Owners, by such appropriate Proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Collateral, Proceedings under Title 11 of the
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United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property or
such other obligor or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the Notes, or to the
creditors or property of the Issuer or such other obligor, the Indenture
Trustee, irrespective of whether the principal of any Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, upon the direction
of the Note Insurer, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in
respect of the Notes and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to
the Indenture Trustee, each predecessor Indenture
Trustee and the Note Insurer, and their respective
agents, attorneys and counsel, and for reimbursement
of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each
predecessor Indenture Trustee (except as a result of
negligence or bad faith), the Note Insurer and of the
Owners allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Owners of Notes in any
election of a trustee, a standby trustee or Person
performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to
distribute all amounts received with respect to the
claims of the Owners, the Note Insurer and the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order
to have the claims of the Indenture Trustee, the Note
Insurer or the Owners of Notes allowed in any
judicial proceedings relative to the Issuer, its
creditors and its property; and any trustee,
receiver, liquidator, custodian or other similar
official in any such Proceeding is hereby authorized
by each of such Owners and the Note Insurer to make
payments to the Indenture Trustee and, in the event
that the Indenture Trustee shall consent to the
making of payments directly to such Owners and the
Note Insurer, to pay to the Indenture Trustee such
amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by
the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad
faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Owner or the Note Insurer any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Owner thereof
or the Note Insurer or to authorize the Indenture Trustee to vote in respect of
the claim of any Owner in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar Person.
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(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Owners of the Notes and the Note Insurer.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Owners, and it shall not be necessary to make any
Owner a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing, the
Indenture Trustee shall, at the direction of the Note Insurer, and if a Note
Insurer Default has occurred and is continuing, the Indenture Trustee may and at
the direction of the Owners of the Notes representing a majority of the
Outstanding Amount of the Notes shall, upon receipt of satisfactory indemnity
and assurances, do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee
of an express trust for the collection of all amounts
then payable on the Notes or under this Indenture
with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes
moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture
with respect to the Collateral;
(iii) exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect
and enforce the rights and remedies of the Indenture
Trustee, the Note Insurer or the Owners; and
(iv) sell the Collateral or any portion thereof or rights
or interest therein in a commercially reasonable
manner, at one or more public or private sales called
and conducted in any manner permitted by law;
provided, however, that if a Note Insurer Default has occurred and is
continuing, the Indenture Trustee may not sell or otherwise liquidate the
Collateral following an Event of Default, unless (A) the Owners of 100% of the
Outstanding Amount of the Notes consent thereto, (B) the proceeds of such sale
or liquidation distributable to the Owners are sufficient to discharge in full
all amounts then due and unpaid upon such Notes for principal and interest or
(C) the Indenture Trustee determines that the Collateral will not continue to
provide sufficient funds for the payment of principal of and interest on the
Notes as they would have become due if the Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of Owners of 66-2/3% of
the Outstanding Amount of the Notes. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C), the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national
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reputation as to the feasibility of such proposed action and as to the
sufficiency of the Collateral for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for the Indenture Trustee Fee relating
to the Pool I Home Equity Loans then due and any costs or expenses incurred by
it in connection with the enforcement of the remedies provided for in this
Article V and to the Owner Trustee for the Owner Trustee Fee relating to the
Pool I Home Equity Loans then due;
SECOND: to the Servicer for the Servicing Fee relating to the Pool I
Home Equity Loans then due and unpaid and any unreimbursed Delinquency Advances
and Servicing Advances;
THIRD: to the Note Insurer for the Premium Amount relating to the Notes
then due and unpaid;
FOURTH: to Owners for amounts due and unpaid on the Notes for Current
Interest, pro rata, according to the amounts due and payable on the Notes for
interest;
FIFTH: to Owners of the Notes for amounts due and unpaid on the Notes
for principal, pro rata;
SIXTH: to the Note Insurer for any amounts then due and payable under
the Insurance Agreement; and
SEVENTH: to the Trust Paying Agent, for any amounts to be distributed,
pro rata, to the Certificateholders.
The Indenture Trustee may fix a record date and payment date for any
payment to be made to the Owners pursuant to this Section. At least 15 days
before such record date, the Indenture Trustee shall mail to each Owner, the
Note Insurer and the Issuer a notice that states the record date, the payment
date and the amount to be paid.
SECTION 5.5 Optional Preservation of the Collateral. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Collateral. It is the desire of the parties hereto and the Owners that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the
Collateral. In determining whether to maintain possession of the Collateral, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose.
SECTION 5.6 Limitation of Suits. No Owner of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder for so long as a Note Insurer Default has not occurred or is
not continuing and if a Note Insurer Default has occurred and is continuing,
unless:
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(a) such Owner has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Owners of a majority of the Outstanding Amount of the Notes
have made written request to the Indenture Trustee to institute such Proceeding
in respect of such Event of Default in its own name as Indenture Trustee
hereunder;
(c) such Owner or Owners have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such Proceedings; and
(e) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Owners of a majority
of the Outstanding Amount of the Notes.
It is understood and intended that no one or more Owners of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Owners of Notes or to obtain or to seek to obtain priority or preference
over any other Owners or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Owners of Notes,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Owners To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, the Owner of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
Final Payment Date (or, in the case of redemption, on or after the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Owner.
SECTION 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee, the Note Insurer or any Owner has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to the
Indenture Trustee, the Note Insurer or to such Owner, then and in every such
case the Issuer, the Indenture Trustee, the Note Insurer and the Owners shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Indenture Trustee and the Owners shall continue as though no
such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee, the Note Insurer or to the
Owners is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee, the Note Insurer or any Owner of any Note to exercise any
right or remedy accruing upon any Default or
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Event of Default shall impair any such right or remedy or constitute a waiver of
any such Default or Event of Default or an acquiescence therein. Every right and
remedy given by this Article V or by law to the Indenture Trustee, the Note
Insurer or to the Owners may be exercised from time to time, and as often as may
be deemed expedient, by the Indenture Trustee, the Note Insurer or by the
Owners, as the case may be, subject, in each case, however, to the right of the
Note Insurer to control any such right and remedy, except as provided in Section
11.20.
SECTION 5.11 Control by Note Insurer or Owners. The Note Insurer, or if
a Note Insurer Default exists, the Owners of a majority of the Outstanding
Amount of the Notes shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on the Indenture
Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) if a Note Insurer Default exists, subject to the express terms of
Section 5.4, any direction to the Indenture Trustee to sell or liquidate the
Collateral shall be by Owners of Notes representing not less than 100% of the
Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been satisfied and
the Indenture Trustee elects to retain the Collateral pursuant to such Section,
then any direction to the Indenture Trustee by Owners of Notes representing less
than 100% of the Outstanding Amount of the Notes to sell or liquidate the
Collateral shall be of no force and effect; and
(d) if a Note Insurer Default exists, the Indenture Trustee may take
any other action deemed proper by the Indenture Trustee that is not inconsistent
with such direction.
Notwithstanding the rights of the Note Insurer and the Owners set forth
in this Section, subject to Section 6.1, the Indenture Trustee need not take any
action that it determines might involve it in liability or might materially
adversely affect the rights of any Owners not consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the Note
Insurer, or if a Note Insurer Default exists, the Owners of Notes representing
not less than a majority of the Outstanding Amount of the Notes may waive any
past Default or Event of Default and its consequences except a Default (a) in
the payment of principal of or interest on any of the Notes or (b) in respect of
a covenant or provision hereof that cannot be modified or amended without the
consent of the Note Insurer or the Owner of each Note, as applicable. In the
case of any such waiver, the Issuer, the Indenture Trustee, the Note Insurer and
the Owners of the Notes shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Owner of any Note by such Owner's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any
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party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to (a) any suit
instituted by the Indenture Trustee or the Note Insurer, (b) any suit instituted
by any Owner, or group of Owners, in each case holding in the aggregate more
than 10% of the Outstanding Amount of the Notes or (c) any suit instituted by
any Owner for the enforcement of the payment of principal of or interest on any
Note on or after the respective due dates expressed in such Note and in this
Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Owners shall be impaired by the recovery of any
judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any of
the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so,
the Issuer shall take all such lawful action as the Indenture Trustee may
request to compel or secure the performance and observance by the Depositor, the
Seller and the Servicer, as applicable, of each of their obligations to the
Issuer under or in connection with the Sale and Servicing Agreement and to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Issuer under or in connection with the Sale and Servicing Agreement to
the extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Depositor, the Seller or
the Servicer thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by the Depositor, the Seller or
the Servicer of each of their obligations under the Sale and Servicing
Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the written direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the Owners
of 66-2/3% of the Outstanding Amount of the Notes shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Depositor, the
Seller or the Servicer under or in connection with the Sale and Servicing
Agreement including the right or power to take any action to compel or secure
performance or observance by the Depositor, the Seller or the Servicer, as the
case may be, of each of their obligations to the Issuer thereunder and to give
any consent, request, notice, direction, approval, extension, or waiver under
the Sale and Servicing Agreement and any right of the Issuer to take such action
shall be suspended.
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ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee.
(a) If an Event of Default of which a Responsible Officer of the
Indenture Trustee shall have actual knowledge has occurred and is continuing,
the Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
(or similar documents) or opinions furnished to the Indenture Trustee
and conforming to the requirements of this Indenture; however, the
Indenture Trustee shall examine the certificates (or similar documents)
and opinions to determine whether or not they conform to the
requirements of this Indenture; provided that the Indenture Trustee
shall not be responsible for the accuracy or content of any certificate
(or similar document) or opinion furnished to it pursuant to the terms
of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Indenture Trustee shall not be personally liable for
any error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be personally liable
with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 5.11 or
for exercising or omitting to exercise any trust or power conferred
upon the Indenture Trustee under this Indenture.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this
Section.
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer and except to the extent of income or other gain on investments which are
deposits in or certificates of deposit of the Indenture Trustee in its
commercial capacity.
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(f) Money held in trust by the Indenture Trustee shall be segregated
from other funds except to the extent permitted by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; provided, however, that the Indenture Trustee shall
not refuse or fail to perform any of its duties hereunder solely as a result of
nonpayment of its normal fees and expenses and further provided that nothing in
this Section 6.1(g) shall be construed to limit the exercise by the Indenture
Trustee of any right or remedy permitted under this Indenture or otherwise in
the event of the Issuer's failure to pay the Indenture Trustee's fees and
expenses pursuant to Section 6.7. In determining that such repayment or
indemnity is not reasonably assured to it, the Indenture Trustee must consider
not only the likelihood of repayment or indemnity by or on behalf of the Issuer
but also the likelihood of repayment or indemnity from amounts payable to it
from the Collateral pursuant to Section 6.7.
(h) Every provision of this Indenture relating to the conduct of,
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
SECTION 6.2 Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Indenture
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel, which shall not be at
the expense of the Indenture Trustee. The Indenture Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on an
Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent or attorney or custodian appointed by the Indenture Trustee with due care.
(d) The Indenture Trustee shall not be liable for (i) any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that such action or omission by
the Indenture Trustee does not constitute willful misconduct, negligence or bad
faith; or (ii) any willful misconduct or gross negligence on the part of the
Custodian.
SECTION 6.3 Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, shall not be
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accountable for the Issuer's use of the proceeds from the Notes, or responsible
for any statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to the Note Insurer and each Owner notice of the
Default within 90 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note (including payments pursuant to
the mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of Owners.
SECTION 6.6 Reports by Indenture Trustee to Owners. The Indenture
Trustee shall deliver to each Owner such information as may be required to
enable such Owner to prepare its federal and state income tax returns.
SECTION 6.7 Compensation and Indemnity. The Indenture Trustee shall
receive compensation for fees and reimbursement for expenses pursuant to Section
3.03(b)(i) and Section 3.03(b)(iv)(D) of the Sale and Servicing Agreement. The
Indenture Trustee and any director, officer, employee or agent of the Indenture
Trustee shall be indemnified by the Issuer and held harmless against any loss,
liability, or "unanticipated out-of-pocket" expense incurred or paid to third
parties (which expenses shall not include salaries paid to employees, or
allocable overhead, of the Indenture Trustee) in connection with the acceptance
or administration of its trusts hereunder or the Notes, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. All such amounts described in the
preceding sentence shall be payable as provided in (A) Section 3.03(b)(i) of the
Sale and Servicing Agreement with respect to such amounts that are Indenture
Trustee Reimbursable Expenses and (B) Section 3.03(b)(iv)(D) with respect to the
remainder of such amounts, subject in the case of clause (B), subject to Section
6.1(g) of this Indenture. The provisions of this Section 6.7 shall survive the
termination of this Indenture.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(e) or (f) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. No resignation or removal
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section. The Indenture Trustee may resign at
any time by so notifying the Issuer and the Note Insurer. The Owners of a
majority of the Outstanding Amount of the Notes (with the consent of the Note
Insurer) may remove the Indenture Trustee by so notifying the Indenture Trustee
and may appoint a successor Indenture Trustee. The Note Insurer (or the Issuer
upon the prior written consent of the Note Insurer) shall remove the Indenture
Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(d) the Indenture Trustee otherwise becomes incapable of acting.
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If the Indenture Trustee resigns or is removed, or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee acceptable to the Note
Insurer. A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, the Note Insurer and to the
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to the Owners.
The retiring Indenture Trustee shall promptly transfer all property held by it
as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Owners of a majority of the Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Owner
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's obligations under Section 6.7 shall continue for the
benefit of the retiring Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided, that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide the Note
Insurer and the Rating Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force provided in the Notes or in this Indenture.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral may at the time be located, the Indenture
Trustee shall have the power, with the prior written consent of the Note
Insurer, and may execute and deliver all instruments to appoint one or more
Persons to act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person or
Persons, in such capacity and for the benefit of the Owners, such title to the
Collateral, or any part hereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the Indenture
Trustee may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required
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to meet the terms of eligibility as a successor trustee under Section 6.11 and
no notice to Owners of the appointment of any co-trustee or separate trustee
shall be required under Section 6.8 hereof; provided that the Indenture Trustee
shall deliver notice of any such co-trustee or separate trustee to the Servicer
and the Note Insurer.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture
Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is
not authorized to act separately without the Indenture Trustee
joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding
of title to the Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of
the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, jointly with the Indenture
Trustee, subject to all the provisions of this Indenture, specifically including
every provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall
at all times be authorized to exercise corporate trust powers. The Indenture
Trustee shall also satisfy the requirements of TIA Section 310(a) and shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and it or its parent shall have a
long-term debt rating of A3 or better by Moody's or shall otherwise be
acceptable to Moody's. The Indenture Trustee shall comply with TIA Section
310(b), including the optional provision permitted by the second sentence of TIA
Section 310(b)(9); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture
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or indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met. If
at any time the Indenture Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect specified in Section 6.8 hereof.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
OWNERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
Owners. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (a) not more than five days after each Record Date, a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses of
the Owners as of such Record Date, (b) at such other times as the Indenture
Trustee may request in writing, within 30 days after receipt by the Issuer of
any such request, a list of similar form and content as of a date not more than
10 days prior to the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2 Preservation of Information; Communications to Owners.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Owners contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.1
and the names and addresses of Owners received by the Indenture Trustee in its
capacity as Note Registrar. The Indenture Trustee may destroy any list furnished
to it as provided in such Section 7.1 upon receipt of a new list so furnished.
(b) Owners may communicate pursuant to TIA Section 312(b) with other
Owners with respect to their rights under this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
SECTION 7.3 Reports by Issuer. The Issuer shall:
(a) file with the Indenture Trustee and the Note Insurer, within 15
days after the Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Issuer may be required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(b) file with the Indenture Trustee and the Note Insurer and the
Commission in accordance with the rules and regulations prescribed from time to
time by the Commission such additional information,
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documents and reports with respect to compliance by the Issuer with the
conditions and covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(c) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Owners described in TIA Section 313(c)) such summaries
of any information, documents and reports required to be filed by the Issuer
pursuant to clauses (i) and (ii) of this Section 7.3(a) and by rules and
regulations prescribed from time to time by the Commission.
SECTION 7.4 Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each January 1, beginning with January 1, 1999, the
Indenture Trustee shall mail to the Note Insurer and to each Owner as required
by TIA Section 313(c) a brief report dated as of such date that complies with
TIA Section 313(a). The Indenture Trustee also shall comply with TIA Section
313(b).
A copy of each report at the time of its mailing to Owners shall be
filed by the Indenture Trustee with the Commission and each securities exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any securities exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money.
(a) General. Except as otherwise expressly provided herein, the
Indenture Trustee may demand payment or delivery of, and shall receive and
collect, directly and without intervention or assistance of any fiscal agent or
other intermediary, all money and other property payable to or receivable by the
Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply
all such money received by it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Collateral, the Indenture Trustee may, and upon written request of the Note
Insurer shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
(b) Claims Under Note Insurance Policy. The Notes will be insured by
the Note Insurance Policy pursuant to the terms set forth therein,
notwithstanding any provisions to the contrary contained in this Indenture or
the Sale and Servicing Agreement. The Note Insurance Policy also insures the
notes issued under the Series 1998-7B Indenture. All amounts received under the
Note Insurance Policy in respect of the Notes shall be used solely for the
payment to Owners of Insured Payments.
SECTION 8.2 Accounts; Distributions.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee for the
benefit of the Owners and the Note Insurer, the Accounts as provided in the Sale
and Servicing Agreement. The Indenture Trustee shall deposit amounts into the
Accounts in accordance with the terms hereof and the Sale and Servicing
Agreement.
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(b) On or before the Monthly Remittance Date prior to each Payment
Date, the Servicer shall withdraw from the Principal and Interest Account the
amounts specified in Section 3.03(a) of the Sale and Servicing Agreement and
will deliver such amount to the Indenture Trustee for deposit into the Pool I
Note Account. No later than the Business Day prior to each Payment Date, to the
extent funds are available in the Pool I Note Account, the Indenture Trustee
shall either retain funds in the Pool I Note Account or make the withdrawals
from the Pool I Note Account and deposits into the other Accounts for
distribution on such Payment Date as required pursuant to Section 3.03(b) of the
Sale and Servicing Agreement.
(c) On each Payment Date and the Redemption Date, to the extent funds
are available in the Pool I Note Account, the Indenture Trustee shall make the
following distributions from the amounts on deposit in the Pool I Note Account
in the following order of priority (except as otherwise provided in Section
5.4(b)):
(i) to the Owners of the Notes, the Current Interest for
such Payment Date; provided, that if there are not
sufficient funds in the Pool I Note Account to pay
the entire amount of accrued and unpaid interest then
due on the Notes, the amount in the Pool I Note
Account shall be applied to the payment of such
interest on the Notes pro rata on the basis of the
total such interest due on the Notes; and
(ii) to the Owners of the Notes, the Pool I Principal
Payment Amount for such Payment Date until the Pool I
Note Principal Balance is reduced to zero.
(d) The Indenture Trustee shall make claims in respect of the Home
Equity Loans under the Note Insurance Policy pursuant to Section 7.02 of the
Sale and Servicing Agreement and in accordance with the Note Insurance Policy.
The Indenture Trustee shall deposit any Insured Payment received from the Note
Insurer in respect of the Notes in the Pool I Note Account. All amounts received
under the Note Insurance Policy in respect of the Notes shall be used solely for
the payment to Owners of principal and interest on the Notes.
SECTION 8.3 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Accounts shall be invested
in Eligible Investments and reinvested by the Indenture Trustee at the direction
of the Seller in accordance with the provisions of Section 3.05 of the Sale and
Servicing Agreement. The Issuer will not direct the Indenture Trustee to make
any investment of any funds or to sell any investment held in any of the
Accounts unless the security interest Granted and perfected in such Account will
continue to be perfected in such investment or the proceeds of such sale, in
either case without any further action by any Person, and, in connection with
any direction to the Indenture Trustee to make any such investment or sale.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Seller shall have failed to give investment directions
for any funds on deposit in the Accounts to the Indenture Trustee by 11:00 a.m.
Eastern Time (or such other time as may be agreed by
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the Issuer and Indenture Trustee) on any Business Day or (ii) a Default or Event
of Default shall have occurred and be continuing with respect to the Notes but
the Notes shall not have been declared due and payable pursuant to Section 5.2
or (iii) if such Notes shall been declared due and payable following an Event of
Default, amounts collected or receivable from the Collateral are being applied
in accordance with Section 5.5 as if there had not been such a declaration, then
the Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Accounts in one or more Eligible Investments.
SECTION 8.4 Servicer's Monthly Statements. On each Payment Date (to the
extent it receives the supporting documentation from the Servicer on a timely
basis), the Indenture Trustee shall deliver the report required by Section 3.09
of the Sale and Servicing Agreement with respect to such Payment Date to the
Depositor, the Seller, the Servicer, the Rating Agencies, and the Note Insurer.
SECTION 8.5 Release of Collateral.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the Indenture Trustee may, and when required by the provisions of
this Indenture and the Sale and Servicing Agreement shall, execute instruments
to release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article VIII
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Note Insurer, the Indenture Trustee and the
Owner Trustee in respect of the Notes have been paid, release any remaining
portion of the Collateral that secured the Notes from the lien of this Indenture
and release to the Issuer or any other Person entitled thereto any funds then on
deposit in the Accounts. The Indenture Trustee shall release property from the
lien of this Indenture pursuant to this Subsection (b) only upon receipt of an
Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel
and (if required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.1.
SECTION 8.6 Opinion of Counsel. The Indenture Trustee and the Note
Insurer shall receive at least seven Business Days notice when requested by the
Issuer to take any action pursuant to Section 8.5(a), accompanied by copies of
any instruments involved, and the Indenture Trustee shall also require, as a
condition to such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
and such action will not materially and adversely impair the security for the
Notes or the rights of the Owners in contravention of the provisions of this
Indenture; provided, however, that such Opinion of Counsel shall not be required
to express an opinion as to the fair value of the Collateral. Counsel rendering
any such opinion may rely, without independent investigation, on the accuracy
and validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Owners.
(a) Without the consent of the Owners of any Notes but with prior
notice to the Rating Agencies and with the prior written consent of the Note
Insurer, the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or
better to assure, convey and confirm unto the
Indenture Trustee any property subject or required to
be subjected to the lien of this Indenture, or to
subject to the lien of this Indenture additional
property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to
the Issuer, and the assumption by any such successor
of the covenants of the Issuer herein and in the
Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Owners of the Notes, or to surrender
any right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture
that may be inconsistent with any other provision
herein or in any supplemental indenture or to make
any other provisions with respect to matters or
questions arising under this Indenture or in any
supplemental indenture; provided, that such action
shall not adversely affect the interests of the
Owners of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with
respect to the Notes and to add to or change any of
the provisions of this Indenture as shall be
necessary to facilitate the administration of the
trusts hereunder by more than one trustee, pursuant
to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to
effect the qualification of the Indenture under the
TIA or under any similar federal statute hereafter
enacted and to add to the Indenture such other
provisions as may be expressly required by the TIA;
or
(viii) to modify or alter the provisions of the definition
of the term "Outstanding".
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
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(b) The Issuer and the Indenture Trustee, with the prior written
consent of the Note Insurer, when authorized by an Issuer Order, may, upon
satisfaction of the Rating Agency Condition but without the consent of any of
the Owners , enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Owners of the Notes under this Indenture; provided, however, that
such action shall not, as evidenced by (i) an Opinion of Counsel or (ii)
satisfaction of the Rating Agency Condition, adversely affect in any material
respect the interests of any Owner.
SECTION 9.2 Supplemental Indentures with Consent of Owners. The Issuer
and the Indenture Trustee, when authorized by an Issuer Order, also may, with
the prior consent of the Note Insurer and with the consent of the Owners of not
less than a majority of the Outstanding Amount of the Notes, by Act of such
Owners delivered to the Issuer and the Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Owners of the
Notes under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Owner of each Note affected thereby
and the Note Insurer if affected thereby:
(a) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof or, the Series
1998-7A Note Rate, change the provisions of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the Collateral to
payment of principal of or interest on the Notes, or change any place of payment
where, or the coin or currency in which, any Note or the interest thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(b) reduce the percentage of the Outstanding Amount of the Notes, the
consent of the Owners of which is required for any such supplemental indenture,
or the consent of the Owners of which is required for any waiver of compliance
with certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(c) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Collateral pursuant to Section 5.4;
(d) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional provisions of
this Indenture or the Operative Documents cannot be modified or waived without
the consent of the Owner of each Note affected thereby;
(e) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the amount of any payment of interest or principal due
on any Note on any Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the rights of the Owners
of Notes to the benefit of any provisions for the mandatory redemption of the
Notes contained herein; or
(f) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Collateral or,
except as otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive the Owner of any
Note of the security provided by the lien of this Indenture.
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The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Owners of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
In connection with requesting the consent of the Owners pursuant to
this Section, the Indenture Trustee shall mail to the Owners of the Notes to
which such amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. It shall not be
necessary for any Act of Owners under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such
Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Owners of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Notes.
SECTION 9.7 Amendments to Trust Agreement. Subject to Section 11.1 of
the Trust Agreement, the Indenture Trustee shall, upon Issuer Order, consent to
any proposed amendment to the Trust Agreement or an amendment to or waiver of
any provision of any other document relating to the Trust Agreement, such
consent to be given without the necessity of obtaining the consent of the Owners
of any Notes upon satisfaction of the requirements under Section 11.1 of the
Trust Agreement.
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Nothing in this Section shall be construed to require that any Person
obtain the consent of the Indenture Trustee to any amendment or waiver or any
provision of any document where the making of such amendment or the giving of
such waiver without obtaining the consent of the Indenture Trustee is not
prohibited by this Indenture or by the terms of the document that is the subject
of the proposed amendment or waiver.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. Upon the completion of an Auction Sale
pursuant to Section 5.02 of the Sale and Servicing Agreement, the Issuer shall
use the proceeds it receives from the sale of the Home Equity Loans in Loan Pool
I to redeem the Notes, in whole and not in part, and terminate this Indenture.
In the event that on or prior to the Clean Up Call Date there has not been an
Auction Sale, the Servicer, or if the Servicer declines to exercise such option,
the Note Insurer may purchase all of the Home Equity Loans in both Loan Pools as
provided in Section 5.02(d) of the Sale and Servicing Agreement. Upon such
purchase by the Servicer or the Note Insurer, the Issuer shall use the proceeds
it receives from the sale of the Home Equity Loans to redeem the Notes, in whole
and not in part, and terminate this Indenture.
Any such redemption shall be accomplished by the purchaser of the Home
Equity Loans at the Auction Sale, the Servicer or the Note Insurer, as
applicable, depositing or causing to be deposited into the Principal and
Interest Account by 10:00 A.M. New York City time on the on the Monthly
Remittance Date prior to the Redemption Date (or such later Payment Date on
which the Collateral is purchased) the amount of the Redemption Price. On the
Payment Date after the date that the Redemption Price is deposited into the
Principal and Interest Account, the Redemption Price shall be transferred to the
Pool I Note Account for distribution provided in the Sale and Servicing
Agreement on the Redemption Date; and any amounts received with respect to the
Pool I Home Equity Loans and REO Properties subsequent to such transfer shall
belong to the purchaser of the Home Equity Loans at the Auction Sale, the
Servicer or the Note Insurer, as applicable.
The Issuer shall furnish the Depositor, the Indenture Trustee, the
Rating Agencies and the Note Insurer notice of any such redemption in accordance
with Section 10.2 no later than 15 days prior to the Redemption Date.
SECTION 10.2 Form of Redemption Notice
(a) Notice of redemption under Section 10.1 shall be given by the
Indenture Trustee by first-class mail, postage prepaid, or by facsimile mailed
or transmitted not later than 10 days prior to the applicable Redemption Date to
each Owner of Notes, as of the close of business on the Record Date preceding
the applicable Redemption Date, at such Owner's address or facsimile number
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
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(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the
office or agency of the Issuer to be maintained as
provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name of the Issuer and at the expense of the Servicer. Failure to
give notice of redemption, or any defect therein, to any Owner of any Note shall
not impair or affect the validity of the redemption of any other Note.
SECTION 10.3 Notes Payable on Redemption Date; Provision for Payment of
Indenture Trustee and Note Insurer. The Notes or portions thereof to be redeemed
shall, following notice of redemption as required by Section 10.2 (in the case
of redemption pursuant to Section 10.1), on the Redemption Date become due and
payable at the Redemption Price and (unless the Issuer shall default in the
payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price. The Issuer may not redeem the
Notes unless, (i) all outstanding obligations under the Notes have been paid in
full and (ii) the Indenture Trustee and the Owner Trustee have been paid all
amounts in respect of the Notes to which they are entitled hereunder, the Note
Insurer has been paid all Premium Amounts and Reimbursement Amounts and any
other amounts to which it is entitled pursuant to the Operative Documents as of
the applicable Redemption Date, the Servicer has been paid all amounts to which
it is entitled pursuant to the Operative Documents as of the applicable
Redemption Date and any required amounts have been deposited in the Reserve
Account.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.
Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and (ii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; and
(3) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so
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certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Seller, the Issuer or the Depositor,
stating that the information with respect to such factual matters is in the
possession of the Servicer, the Seller, the Issuer or the Depositor, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3 Acts of Owners.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by Owners
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Owners in person or by agents duly appointed in
writing; and except as herein otherwise expressly provided such action shall
become effective when such instrument or instruments are delivered in writing to
the Indenture Trustee, and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Owners
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Owner of any Notes shall bind the Owner of every
Note issued upon the registration thereof or in exchange
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therefor or in lieu thereof, in respect of anything done, omitted or suffered to
be done by the Indenture Trustee or the Issuer in reliance thereon, whether or
not notation of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer, Rating
Agencies and Note Insurer. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Owners or other documents provided or
permitted by this Indenture shall be in writing and if such request, demand,
authorization, direction, notice, consent, waiver or act of Owners is to be made
upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Owner or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) in the case of the Issuer, Rating Agencies or Note Insurer as
provided in Section 6.12 of the Sale and Servicing Agreement.
SECTION 11.5 Notices to Owners; Waiver. Where this Indenture provides
for notice to Owners of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class, postage prepaid to each Owner affected by such event, at his
address as it appears on the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Owners is given by mail ,neither the failure to mail
such notice nor any defect in any notice so mailed to any particular Owner shall
affect the sufficiency of such notice with respect to other Owners, and any
notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Owners shall be filed with the Indenture Trustee
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Owners when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.6 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.7 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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SECTION 11.8 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents.
SECTION 11.9 Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.10 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Owners, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Collateral, any benefit or any legal or equitable right, remedy or claim
under this Indenture, except that the Note Insurer is an express third party
beneficiary to this Indenture as provided in Section 11.19.
SECTION 11.11 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.12 Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.14 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Owners or any other Person secured
hereunder or for the enforcement of any right or remedy granted to the Indenture
Trustee under this Indenture.
SECTION 11.15 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any Owner of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the
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Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Article VI, VII and VIII of the Trust
Agreement.
SECTION 11.16 No Petition. The Indenture Trustee, by entering into this
Indenture, and each Owner, by accepting a Note, hereby covenant and agree that
they will not at any time institute against the Depositor or the Issuer, or join
in any institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or any
of the Operative Documents.
SECTION 11.17 Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee or the Note
Insurer, during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees, and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall and shall cause its representatives to
hold in confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
SECTION 11.18 Grant of Owner Rights to Note Insurer. In consideration
for the guarantee of the Notes by the Note Insurer pursuant to the Note
Insurance Policy, the Owners hereby grant to the Note Insurer the right to act
as the Owner of 100% of the outstanding Notes for the purpose of exercising the
rights of the Owners of the Notes hereunder, including the voting rights of such
Owners, but excluding those rights requiring the consent of all such Owners
under Section 9.2 and any rights of such Owners to distributions under Section
8.2 hereof; provided that the preceding grant of rights to the Note Insurer by
the Owners shall be subject to Section 11.20 hereof. The rights of the Note
Insurer to direct certain actions and consent to certain actions of the Owners
hereunder will terminate at such time as the Pool I Note Principal Balance has
been reduced to zero and the Note Insurer has been reimbursed for all Insured
Payments and any other amounts respecting the Notes owed under the Note
Insurance Policy and the Insurance Agreement and the Note Insurer has no further
obligation under the Note Insurance Policy with respect to the Notes.
SECTION 11.19 Third Party Beneficiary. The parties hereto acknowledge
that the Note Insurer is an express third party beneficiary hereof entitled to
enforce any rights reserved to it hereunder as if it were actually a party
hereto.
SECTION 11.20 Suspension and Termination of Note Insurer's Rights.
(a) During the continuation of a Note Insurer Default, rights granted
or reserved to the Note Insurer hereunder shall vest instead in the Owners;
provided that the Note Insurer shall be entitled to any distributions in
reimbursement of the Reimbursement Amount, and the Note Insurer shall retain
those rights under Section 9.2 hereof to consent to any supplement to this
Indenture.
(b) At such time as either (i) the Pool I Note Principal Balance has
been reduced to zero or (ii) the Note Insurance Policy has been terminated
following a Note Insurer Default, and in either case of (i) or (ii) the Note
Insurer has been reimbursed for all Insured Payments and any other amounts
respecting the Notes owed under the Note Insurance Policy and the Insurance
Agreement (and the Note Insurer no longer has any obligation under the Note
Insurance Policy in respect of the Notes, except for breach thereof by the Note
48
<PAGE>
Insurer), then the rights and benefits granted or reserved to the Note Insurer
hereunder (including the rights to direct certain actions and receive certain
notices) shall terminate and the Owners shall be entitled to the exercise of
such rights and to receive such benefits of the Note Insurer following such
termination to the extent that such rights and benefits are applicable to the
Owners.
49
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
By: WILMINGTON TRUST COMPANY
not in its individual capacity but solely as Owner Trustee
By: /s/ Emmett R. Harmon
------------------------------
Name: Emmett R. Harmon
Title: Vice President
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s/ Jennifer Cupo
------------------------------
Name Jennifer Cupo
Title: Assistant Vice President
50
<PAGE>
STATE OF DELAWARE
COUNTY OF NEW CASTLE
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Emmett R. Harmon, known to me
to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said
WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner
Trustee on behalf of IMC HOME EQUITY LOAN OWNER TRUST 1998-7, a Delaware
business trust, and that such person executed the same as the act of said
business trust for the purpose and consideration therein expressed, and in the
capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 9th day of December, 1998.
Kathleen A. Pedelini
---------------------------------
Notary Public in and for the State of Delaware
(Seal)
My commission expires:
October 31,2002
- - ----------------------
51
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 10th day of December, 1998, before me personally appeared
Jennifer Cupo, to me known, who being by me duly sworn did depose and say that
he/she resides at 450 W. 33rd St., that he/she is a Assistant Vice President,
The Chase Manhattan Bank, the New York banking corporation described in and that
executed the above instrument as Indenture Trustee; and that he/she signed
his/her name thereto by order of the Board of Directors of said New York banking
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my officiaL
seal the day and year in this certificate first above written.
NOTARIAL SEAL
Jill G. Chavooshian
-----------------------
Notary Public
Notary Public, State of New York
My Commission Expires: March 10, 1999
52
<PAGE>
SCHEDULE A
Available Upon Request to the Indenture Trustee
<PAGE>
EXHIBIT A
Form of Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
<TABLE>
<S> <C>
Date of Indenture: As of December 1, 1998 Original Note Principal Balance: $529,000,000
First Payment Date: January 20, 1999 CUSIP No.
--------------------------------
Denomination: $_________________ Note No: 0001
</TABLE>
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
HOME EQUITY LOAN ASSET BACKED NOTES, SERIES 1998-7A
IMC HOME EQUITY LOAN OWNER TRUST 1998-7, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of _______________________
($_____________) payable on each Payment Date in an amount equal to the result
obtained by multiplying (i) a fraction the numerator of which is
$_____________________ and the denominator of which is $529,000,000 by (ii) the
aggregate amount, if any, payable under this Note pursuant to the Indenture
dated as of December 1, 1998, between the Issuer and The Chase Manhattan Bank, a
New York banking corporation as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the earlier of (i) the Payment Date occurring in November
2029 (the "Final Payment Date"), (ii) the Redemption Date, if any, pursuant to
Article X of the Indenture or (iii) the date on which an Event of Default shall
have occurred and be continuing, if the Indenture Trustee, at the direction or
upon prior written consent of the Note Insurer or, if a Note Insurer Default has
occurred and is continuing, the Owners of Notes representing not less than a
majority of the Outstanding Amount of the Notes, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. Capitalized terms used but not defined herein are defined in Article
I of the Indenture.
Pursuant to the terms of the Indenture, payments will be made on the
20th day of each month or, if such day is not a Business Day, on the Business
Day immediately following such 20th day (the "Payment Date"), commencing on the
first Payment Date specified above, to the Person in whose name this Note is
<PAGE>
registered at the close of business on the applicable Record Date, in an amount
equal to the product of (a) the Percentage Interest evidenced by this Note and
(b) the sum of the Current Interest, Pool I Principal Payment Amount and any
Insured Payment with respect to such Payment Date, all as more specifically set
forth in the Indenture and the Sale and Servicing Agreement.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[Signatures follow]
2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: _______________________________
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
By: WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By: ____________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: ______________________________
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: ______________________________
Authorized Signatory
3
<PAGE>
[Reverse of Note]
This Note is one of a Series of a duly authorized issue of Notes of the
Issuer, designated as its Home Equity Loan Asset Backed Notes, Series 1998-7A
(herein called the "Notes"), issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Owners of the Notes. To the extent that any provision of this
Note contradicts or is inconsistent with the provisions of the Indenture, the
provisions of the Indenture shall control and supersede such contradictory or
inconsistent provision herein. Terms not defined herein will have the
definitions as provided in the Indenture. The Notes are subject to all terms of
the Indenture.
The Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Notes will be payable on each Payment Date in an
amount described on the face hereof.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Payment Date and the
Redemption Date, if any, pursuant to Article II of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee, at the direction or upon
the prior written consent of Financial Security Assurance Inc. (the "Note
Insurer") or, if a Note Insurer Default has occurred and is continuing, at the
direction of the Owners of the Notes representing not less than a majority of
the Outstanding Amount of the Notes, have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Notes shall be made pro rata to the Owners entitled
thereto on the basis of their Pool I Note Principal Balance.
The Note Insurer has issued a Note Insurance Policy in the name of the
Indenture Trustee for the benefit of the Owners and for the benefit of the
owners of the Series 1998-7B Notes. Unless a Note Insurer Default shall be
continuing, subject to Section 11.18 of the Indenture, the Note Insurer shall be
deemed to be the Owner of 100% of the Pool I Note Principal Balance of the
Outstanding Notes for the purpose of exercising the rights, including voting
rights, of the Owners under the Indenture. In addition, on each Payment Date,
after the Owners have been paid all amounts to which they are entitled, the Note
Insurer will be entitled to be reimbursed for any unreimbursed Insured Payments
and any other amounts owed under the Note Insurance Policy in respect of the
Notes.
Payments of interest on this Note are due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Owner of the Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Owners of this Note and of any Note issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided
in the Indenture, for payment
4
<PAGE>
in full of the then remaining unpaid principal amount of this Note on a Payment
Date, then the Indenture Trustee, in the name of and on behalf of the Issuer,
will notify the Person who was the Owner hereof as of the Record Date preceding
such Payment Date by notice mailed or transmitted by facsimile prior to such
Payment Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York.
As provided in the Indenture, the Notes may be redeemed if the Majority
Certificateholders, on the Redemption Date or any Payment Date thereafter,
purchase all of the Collateral at the Redemption Price. Upon such purchase, the
Issuer shall use the proceeds it receives from the sale of the Collateral to
redeem the Notes, in whole, but not in part, and terminate the Indenture
pursuant to Article X of the Indenture and Section 5.02 of the Sale and
Servicing Agreement. If the Majority Certificateholders decline to exercise such
option, the Servicer, or if the Servicer declines to exercise such option, the
Note Insurer may do so as provided in Section 5.02(c) of the Sale and Servicing
Agreement.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by the Owner hereof or such Owner's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, other than for exchanges as provided under
Sections 2.4 and 9.6 of the Indenture, but the transferor may be required to pay
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such registration of transfer or exchange.
Each Owner, by acceptance of a Note or, in the case of a Book-Entry
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Depositor, the Seller, the Servicer, the Owner Trustee or the
Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such person may have expressly agreed and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Owner or Book-Entry Owner, by acceptance of a Note or, in the case
of a Book-Entry Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Owner or Book-Entry Owner will
not at any time institute against the Seller, the Servicer, the Depositor, or
the Issuer, or join in any institution against the Seller, the Servicer, the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or similar law in connection with any obligations relating to the
Notes, the Indenture or any of the Operative Documents.
5
<PAGE>
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Owner, by acceptance of a Note (and each
Book-Entry Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Owners of the Notes under the Indenture at any time
by the Issuer with the consent of the Note Insurer and the Owner of Notes
representing a majority of the Outstanding Amount of Notes. The Indenture also
contains provisions permitting the Note Insurer, or if a Note Insurer Default
exists, the Owners of Notes representing not less than a majority of the
Outstanding Amount of the Notes on behalf of the Owners of all the Notes to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Owner of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Owners and upon all future
Owners of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
amendment thereof, in certain limited circumstances, or the waiver of certain
terms and conditions set forth in the Indenture, without the consent of Owners
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Operative Documents, none of the Issuer in its individual
capacity, the Owner Trustee in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of them for,
the payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Owner of this Note by its acceptance hereof
agrees that, except as expressly provided in the Operative Documents, in the
case of an Event of Default under the Indenture, the Owner shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to
6
<PAGE>
prevent recourse to, and enforcement against, the assets of the Issuer for any
and all liabilities, obligations and undertakings contained in the Indenture or
in this Note.
7
<PAGE>
ASSIGNMENT
Social Security or Taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
- - -------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: __________________*/
Signature Guaranteed:
________________________*/
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
8
Exhibit 4.2
INDENTURE
between
IMC HOME EQUITY LOAN OWNER TRUST 1998-7,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
Dated as of December 1, 1998
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
Home Equity Loan Asset Backed Notes, Series 1998-7B
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C>
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE...............................................................2
SECTION 1.1 Definitions............................................................................2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act......................................7
SECTION 1.3 Rules of Construction..................................................................7
ARTICLE II
THE NOTES................................................................................................8
SECTION 2.1 Form...................................................................................8
SECTION 2.2 Execution, Authentication, Delivery and Dating.........................................8
SECTION 2.3 Registration; Registration of Transfer and Exchange....................................9
SECTION 2.4 Mutilated, Destroyed, Lost or Stolen Notes............................................10
SECTION 2.5 Persons Deemed Owners.................................................................11
SECTION 2.6 Payment of Principal and Interest; Defaulted Interest.................................11
SECTION 2.7 Cancellation..........................................................................12
SECTION 2.8 Authentication of Notes...............................................................12
SECTION 2.9 Release of Collateral.................................................................12
SECTION 2.10 Book-Entry Notes......................................................................13
SECTION 2.11 Notices to Clearing Agency............................................................13
SECTION 2.12 Definitive Notes......................................................................13
SECTION 2.13 Tax Treatment.........................................................................14
ARTICLE III
COVENANTS...............................................................................................14
SECTION 3.1 Payment of Principal and Interest.....................................................14
SECTION 3.2 Maintenance of Office or Agency.......................................................14
SECTION 3.3 Money for Payments To Be Held in Trust................................................14
SECTION 3.4 Existence.............................................................................16
SECTION 3.5 Protection of Collateral..............................................................16
SECTION 3.6 Annual Opinions as to Collateral......................................................17
SECTION 3.7 Performance of Obligations; Servicing of Pool II Home Equity Loans....................17
SECTION 3.8 Negative Covenants....................................................................18
SECTION 3.9 Annual Statement as to Compliance.....................................................19
SECTION 3.10 Covenants of the Issuer...............................................................20
SECTION 3.11 Investment Company Act................................................................20
SECTION 3.12 Restricted Payments...................................................................20
SECTION 3.13 Treatment of Notes as Debt for Tax Purposes...........................................20
SECTION 3.14 Notice of Events of Default...........................................................20
SECTION 3.15 Further Instruments and Acts..........................................................20
SECTION 3.16 No Other Business.....................................................................20
SECTION 3.17 No Borrowing..........................................................................21
SECTION 3.18 Guarantees, Loans, Advances and Other Liabilities. ..................................21
SECTION 3.19 Capital Expenditures..................................................................21
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C> <C>
ARTICLE IV
SATISFACTION AND DISCHARGE..............................................................................21
SECTION 4.1 Satisfaction and Discharge of Indenture...............................................21
SECTION 4.2 Application of Trust Money............................................................22
SECTION 4.3 Repayment of Moneys Held by Paying Agent..............................................22
ARTICLE V
REMEDIES................................................................................................22
SECTION 5.1 Events of Default.....................................................................22
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment....................................23
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.............24
SECTION 5.4 Remedies; Priorities..................................................................26
SECTION 5.5 Optional Preservation of the Collateral...............................................27
SECTION 5.6 Limitation of Suits...................................................................27
SECTION 5.7 Unconditional Rights of Owners To Receive Principal and Interest......................28
SECTION 5.8 Restoration of Rights and Remedies....................................................28
SECTION 5.9 Rights and Remedies Cumulative........................................................28
SECTION 5.10 Delay or Omission Not a Waiver........................................................28
SECTION 5.11 Control by Note Insurer or Owners.....................................................29
SECTION 5.12 Waiver of Past Defaults...............................................................29
SECTION 5.13 Undertaking for Costs.................................................................29
SECTION 5.14 Waiver of Stay or Extension Laws......................................................30
SECTION 5.15 Action on Notes.......................................................................30
SECTION 5.16 Performance and Enforcement of Certain Obligations....................................30
ARTICLE VI
THE INDENTURE TRUSTEE...................................................................................31
SECTION 6.1 Duties of Indenture Trustee...........................................................31
SECTION 6.2 Rights of Indenture Trustee...........................................................32
SECTION 6.3 Individual Rights of Indenture Trustee................................................32
SECTION 6.4 Indenture Trustee's Disclaimer........................................................32
SECTION 6.5 Notice of Defaults....................................................................33
SECTION 6.6 Reports by Indenture Trustee to Owners................................................33
SECTION 6.7 Compensation and Indemnity............................................................33
SECTION 6.8 Replacement of Indenture Trustee......................................................33
SECTION 6.9 Successor Indenture Trustee by Merger.................................................34
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.....................34
SECTION 6.11 Eligibility; Disqualification.........................................................35
SECTION 6.12 Preferential Collection of Claims Against Issuer......................................36
ARTICLE VII
OWNERS' LISTS AND REPORTS...............................................................................36
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Owners.....................36
SECTION 7.2 Preservation of Information; Communications to Owners.................................36
SECTION 7.3 Reports by Issuer.....................................................................36
SECTION 7.4 Reports by Indenture Trustee..........................................................37
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C> <C>
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES....................................................................37
SECTION 8.1 Collection of Money...................................................................37
SECTION 8.2 Accounts; Distributions...............................................................37
SECTION 8.3 General Provisions Regarding Accounts.................................................38
SECTION 8.4 Servicer's Monthly Statements.........................................................39
SECTION 8.5 Release of Collateral.................................................................39
SECTION 8.6 Opinion of Counsel....................................................................39
ARTICLE IX
SUPPLEMENTAL INDENTURES.................................................................................39
SECTION 9.1 Supplemental Indentures Without Consent of Owners.....................................39
SECTION 9.2 Supplemental Indentures with Consent of Owners........................................41
SECTION 9.3 Execution of Supplemental Indentures..................................................42
SECTION 9.4 Effect of Supplemental Indenture......................................................42
SECTION 9.5 Conformity with Trust Indenture Act...................................................42
SECTION 9.6 Reference in Notes to Supplemental Indentures.........................................42
SECTION 9.7 Amendments to Trust Agreement.........................................................42
ARTICLE X
REDEMPTION OF NOTES.....................................................................................43
SECTION 10.1 Redemption. ..........................................................................43
SECTION 10.2 Form of Redemption Notice.............................................................43
SECTION 10.3 Notes Payable on Redemption Date; Provision for Payment of Indenture
Trustee and Note Insurer..............................................................44
ARTICLE XI
MISCELLANEOUS...........................................................................................44
SECTION 11.1 Compliance Certificates and Opinions, etc.............................................44
SECTION 11.2 Form of Documents Delivered to Indenture Trustee......................................44
SECTION 11.3 Acts of Owners........................................................................45
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer, Rating Agencies and Note
Insurer...............................................................................45
SECTION 11.5 Notices to Owners; Waiver.............................................................46
SECTION 11.6 Conflict with Trust Indenture Act.....................................................46
SECTION 11.7 Effect of Headings and Table of Contents..............................................46
SECTION 11.8 Successors and Assigns................................................................46
SECTION 11.9 Separability..........................................................................46
SECTION 11.10 Benefits of Indenture.................................................................47
SECTION 11.11 Legal Holidays........................................................................47
SECTION 11.12 Governing Law.........................................................................47
SECTION 11.13 Counterparts..........................................................................47
SECTION 11.14 Recording of Indenture................................................................47
SECTION 11.15 Trust Obligation......................................................................47
SECTION 11.16 No Petition...........................................................................47
SECTION 11.17 Inspection............................................................................48
</TABLE>
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<TABLE>
<S> <C> <C> <C>
SECTION 11.18 Grant of Owner Rights to Note Insurer.................................................48
SECTION 11.19 Third Party Beneficiary...............................................................48
SECTION 11.20 Suspension and Termination of Note Insurer's Rights...................................48
</TABLE>
EXHIBITS
SCHEDULE A - Schedule of Pool II Home Equity Loans
EXHIBIT A - Form of Note
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INDENTURE (this "Indenture" or this "Agreement") dated as of December
1, 1998, between IMC HOME EQUITY LOAN OWNER TRUST 1998-7, a Delaware business
trust (the "Issuer"), and THE CHASE MANHATTAN BANK, a New York banking
corporation, as indenture trustee and not in its individual capacity (the
"Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Owners of the IMC Home Equity Loan Asset
Backed Notes, Series 1998-7B and the Note Insurer.
GRANTING CLAUSE
Subject to the terms of this Indenture, the Issuer hereby Grants to the
Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of
the Owners of the Notes and the Note Insurer (and for the benefit of the owners
of the Series 1998-7A Notes to the limited extent provided in the Sale and
Servicing Agreement), all of the Issuer's right, title and interest whether now
existing or hereafter acquired in and to: (i) the Trust Estate; (ii) all right,
title and interest of the Issuer in the Sale and Servicing Agreement relating to
the Pool II Home Equity Loans (including the Issuer's right to cause the Seller
to repurchase Pool II Home Equity Loans from the Issuer under certain
circumstances described therein); (iii) with respect to the Pool II Home Equity
Loans, all present and future claims, demands, causes of action and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing; (iv) all funds on deposit from time to time in
the Accounts relating to the Pool II Home Equity Loans or the Notes (including
the Pool II Note Account) and (v) all other property of the Trust relating to
the Pool II Home Equity Loans from time to time (collectively, the
"Collateral").
The foregoing Grant is made in trust to secure (i) the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes and the Series 1998-7A Notes to the limited extent provided in the Sale
and Servicing Agreement, equally and ratably without prejudice, priority or
distinction, (ii) the payment of all other amounts payable under this Indenture
and (iii) compliance with the provisions of this Indenture, all as provided in
this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Owners of
the Notes and the Note Insurer, acknowledges such Grant, accepts the trusts
hereunder and agrees to perform its duties required in this Indenture to the
best of its ability to the end that the interests of the Owners of the Notes and
the Note Insurer may be adequately and effectively protected. The Indenture
Trustee agrees that it will hold the Note Insurance Policy in trust and that it
will hold any proceeds of any claim relating to the Notes made upon the Note
Insurance Policy solely for the use and benefit of the Owners of the Notes in
accordance with the terms hereof and the terms of the Note Insurance Policy. The
Indenture Trustee agrees and acknowledges that the Files will be held by the
Custodian, as agent of the Indenture Trustee, in trust, for the use and benefit
of the Issuer, the Note Insurer and all present and future Owners of the Notes
in Tampa, Florida. The Indenture Trustee further agrees and acknowledges that
each other item of Collateral that is physically delivered to the Indenture
Trustee will be held by the Indenture Trustee in New York, New York.
The Indenture Trustee further acknowledges that in the event the
conveyance of the Pool II Home Equity Loans by the Depositor to the Issuer
pursuant to the Sale and Servicing Agreement is determined to
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constitute a financing, the Indenture Trustee holds the Pool II Home Equity
Loans as the designee of the Issuer, subject, however, to a prior lien in favor
of the Owners and the Note Insurer.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Except as otherwise specified herein or as the context
may otherwise require, the following terms have the respective meanings set
forth below for all purposes of this Indenture.
"Act": The meaning specified in Section 11.3(a) hereof.
"Affiliate": 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
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 foregoing.
"Authorized Officer": With respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter).
"Book-Entry Notes": A beneficial interest in the Notes, the ownership
and transfer of which shall be made through book entries by a Clearing Agency as
described in Section 2.10.
"Book-Entry Owner": With respect to a Book-Entry Note, the Person who
is the beneficial owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Business Day": Any day other than a Saturday, Sunday or a day on which
commercial banking institutions in The City of New York, the city in which the
Corporate Trust Office is located, the city in which the principal office of the
Note Insurer is located or the city in which the principal office of the
Servicer is located are authorized or obligated by law or executive order to be
closed.
"Certificate of Trust": The certificate of trust of the Issuer
substantially in the form of Exhibit A to the Trust Agreement.
"Clearing Agency": An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant": A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date": On or about December 10, 1998.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and the Treasury Regulations promulgated thereunder.
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"Collateral": The meaning specified in the Granting Clause of this
Indenture.
"Corporate Trust Office": The principal office of the Indenture Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Agreement is located
at 450 West 33rd Street, New York, New York 10001, Attention: IMC Home Equity
Loan Owner Trust 1998-7, Series 1998-7B, or at such other address as the
Indenture Trustee may designate from time to time by notice to the Owners and
the Issuer, or the principal corporate trust office of any successor Indenture
Trustee at the address designated by such successor Indenture Trustee by notice
to the Owners, the Note Insurer and the Issuer.
"Default": Any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Definitive Notes": The meaning specified in Section 2.12.
"Depositor": IMC Securities, Inc., a Delaware corporation.
"Event of Default": The meaning specified in Section 5.1 hereof.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Final Payment Date": November 20, 2029.
"Grant": To mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and grant a lien upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to this Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the granting party or otherwise, and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Indenture Trustee": The Chase Manhattan Bank, a New York banking
corporation, as Indenture Trustee under this Indenture, or any successor
Indenture Trustee under this Indenture.
"Independent": When used with respect to any specified Person, that the
Person (a) is in fact independent of the Issuer, any other obligor on the Notes,
the Depositor, the Seller and any Affiliate of any of the foregoing Persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Depositor, the Seller or any
Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, the Depositor, the Seller or any Affiliate of
any of the foregoing Persons as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
"Independent Certificate": A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1, made by an
Independent appraiser or other expert appointed by an Issuer Order and approved
by the Indenture Trustee in the exercise of reasonable care, and such opinion or
certificate shall state that the signer
3
<PAGE>
has read the definition of "Independent" in this Indenture and that the signer
is Independent within the meaning thereof.
"Issuer": IMC Home Equity Loan Owner Trust 1998-7 until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
"Issuer Order" and "Issuer Request": A written order or request signed
in the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
"Moody's": Moody's Investors Service, Inc., or any successor thereto.
"Note": The Issuer's Home Equity Loan Asset Backed Notes, Series
1998-7B, substantially in the Form of Exhibit A hereto.
"Note Register" and "Note Registrar": The respective meanings specified
in Section 2.3.
"Officer's Certificate": A certificate signed by any Authorized Officer
of the Issuer, under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 11.1, and delivered to the
Indenture Trustee.
"Opinion of Counsel": One or more written opinions of counsel who may,
except as otherwise expressly provided in this Indenture, be employees of or
counsel to the Issuer and who shall be satisfactory to the Indenture Trustee and
the Note Insurer, and which opinion or opinions shall be addressed to the
Indenture Trustee, as Indenture Trustee, and the Note Insurer and shall comply
with any applicable requirements of Section 11.1 and shall be in form and
substance satisfactory to the Indenture Trustee and the Note Insurer.
"Outstanding": With respect to any Note and as of the date of
determination, any Note theretofore authenticated and delivered under this
Indenture except:
(i) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Owners of such Notes
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision for such notice has been made, satisfactory to the Indenture
Trustee);
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser; provided, that in determining
whether the Owners of the requisite Outstanding Amount of the Notes
have given any request, demand, authorization, direction, notice,
consent, or waiver hereunder or under any Operative Document, Notes
owned by the Issuer, any other obligor upon the Notes, the Depositor,
the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent, or waiver, only Notes that the
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Indenture Trustee knows to be so owned shall be so disregarded. Notes
so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Issuer, any other obligor upon
the Notes, the Depositor, the Seller or any Affiliate of any of the
foregoing Persons;
(iv) Notes alleged to have been destroyed, lost or stolen for
which replacement Notes have been issued as provided for in Section 2.4
thereof; and
(v) Notes as to which the Indenture Trustee has made the final
distribution thereon, whether or not such Notes are ever returned to
the Indenture Trustee.
"Outstanding Amount": The aggregate principal amount of all Notes that
are Outstanding at the date of determination.
"Owner": The Person in whose name a Note is registered on the Note
Register; provided that the exercise of any rights of such Owner under this
Indenture shall at all times be subject to Section 11.18 hereto.
"Owner Trustee": Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, or any successor
Owner Trustee under the Trust Agreement.
"Paying Agent": The Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11
and is authorized by the Issuer to make payments to and distributions from the
Pool II Note Account, including payment of principal of or interest on the Notes
on behalf of the Issuer.
"Payment Date": The 20th day of any month or if such day is not a
Business Day, the next succeeding Business Day, commencing in January 1999.
"Predecessor Note": With respect to any particular Note, every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 2.4 in lieu of a mutilated, lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Note.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Rating Agency": Either or both of (i) Standard & Poor's or (ii)
Moody's. If no such organization or successor is any longer in existence,
"Rating Agency" shall be a nationally recognized statistical rating organization
or other comparable Person designated by the Note Insurer, notice of which
designation shall be given to the Issuer, the Depositor, the Indenture Trustee,
the Owner Trustee and the Servicer.
"Rating Agency Condition": With respect to any action to which a Rating
Agency Condition applies, that each Rating Agency shall have been given 10 days
(or such shorter period as is acceptable to each Rating Agency) prior notice
thereof and that each of the Rating Agencies shall have notified the Depositor,
the Seller, the Servicer, the Note Insurer and the Issuer in writing that such
action will not result in a reduction or withdrawal of the then current rating
of the Notes.
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"Record Date": With respect to any Payment Date, the last day of the
calendar month immediately preceding the calendar month in which such Payment
Date occurs, whether or not such day is a Business Day.
"Redemption Date": The date on which the Notes are redeemed pursuant to
Article X hereof.
"Redemption Price": The sum of (i) the then outstanding Note Principal
Balance plus all accrued and unpaid interest thereon to the Redemption Date,
(ii) any portion of the Trust Fees and Expenses due and unpaid on such date (as
certified to the Indenture Trustee by the Note Insurer with respect to the
Premium Amount and by the Owner Trustee with respect to the Owner Trustee Fee),
(iii) any expenses incurred by the Indenture Trustee in conducting the Auction
Sale (and all previous auctions for such Series of Notes), (iv) all amounts owed
to the Note Insurer with respect to the Insurance Agreement (including any
amount owed on the unrelated Loan Pool) as certified to the Indenture Trustee by
the Note Insurer, (v) the Auction Sale Reserve Deposit and (vi) any unreimbursed
Delinquency Advances and Servicing Advances with respect to the related Loan
Pool (as certified to the Indenture Trustee by the Servicer).
"Registered Owner": The Person in whose name a Note is registered on
the Note Register on the applicable Record Date.
"Responsible Officer": With respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale and Servicing Agreement": The Sale and Servicing Agreement dated
as of December 1, 1998, among the Issuer, the Depositor, the Seller, the
Servicer, and the Indenture Trustee.
"Securities Act": The Securities Act of 1933, as amended.
"Seller": IMC Mortgage Company, a Florida corporation, and any
successor in interest.
"Series 1998-7A Indenture": The meaning specified in Section 3.8(iv)
hereof.
"Series 1998-7A Notes": The Issuer's Home Equity Loan Asset Backed
Notes, Series 1998-7A, issued pursuant to the Series 1998-7A Indenture.
"Servicer": Ocwen Federal Bank FSB, a federal savings bank, and any
Successor Servicer under the Sale and Servicing Agreement.
"Standard & Poor's": Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., or any successor thereto.
"State": Any one of the 50 States of the United States of America or
the District of Columbia.
"Successor Servicer": The meaning specified in Section 3.7(e).
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"Trust Estate": The assets relating to the Pool II Home Equity Loans
and subject to this Agreement, the Sale and Servicing Agreement and the Trust
Agreement and assigned to the Trust, which assets consist of (a) the Pool II
Home Equity Loans listed in Schedule I to the Sale and Servicing Agreement,
including the related Files that the Seller and the Depositor cause to be
delivered to the Indenture Trustee, all payments of principal received,
collected or otherwise recovered after the Cut-Off Date for each Pool II Home
Equity Loan (other than any principal payments due thereon on or prior to the
Cut-Off Date), all payments of interest accruing on each Pool II Home Equity
Loan after the Cut-Off Date therefor (other than any interest payments due
thereon on or prior to the Cut-Off Date) and all other proceeds received in
respect of such Pool II Home Equity Loans, (b) the Note Insurance Policy, to the
extent it relates to the Notes, (c) any Insurance Policies relating to the Pool
II Home Equity Loans, (d) all cash, instruments or other property held or
required to be deposited in the Principal and Interest Account relating to the
Pool II Home Equity Loans and the Pool II Note Account, including all
investments made with funds in such accounts (but not including any income on
funds deposited in, or investments made with funds deposited in, the Principal
and Interest Account relating to the Pool II Home Equity Loans, which income
shall belong to and be for the account of the Servicer, and not including any
income on funds deposited in, or investments made with funds deposited in, the
Pool II Note Account, which income shall belong to and be for the account of the
Issuer), (e) the Issuer's rights under the Sale and Servicing Agreement, and (f)
all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or other liquid assets, including, without limitation, all
insurance proceeds and condemnation awards.
"Trust Indenture Act" or "TIA": The Trust Indenture Act of 1939, as
amended, as in force on the date hereof, unless otherwise specifically provided.
"UCC": Unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
(b) Except as otherwise specified herein or as the context may
otherwise require, for all purposes of this Indenture capitalized terms used but
not otherwise defined herein have the respective meanings set forth in the Sale
and Servicing Agreement or, if not defined therein, in the Trust Agreement.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security Owner" means an Owner.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the Indenture securities means the Issuer and any other
obligor on the Indenture securities.
All other TIA terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction. Unless the context otherwise
requires:
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(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the
plural include the singular; and
(vi) any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to
time amended, modified or supplemented (as provided in such agreements)
and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and
assigns.
ARTICLE II
THE NOTES
SECTION 2.1 Form. The Notes shall be designated as the "IMC Home Equity
Loan Asset Backed Notes, Series 1998-7B" and, together with the Indenture
Trustee's certificate of authentication, shall be in substantially the form set
forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution thereof. Any portion of the text of any Note may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes.
The terms of the Notes set forth in Exhibit A are part of the terms of
this Indenture.
The Notes may be marked as temporary, and any Note being so marked may
be cancelled and destroyed for substitution by a replacement Note, subject to
the provisions of Section 2.2.
SECTION 2.2 Execution, Authentication, Delivery and Dating. The Notes
shall be executed on behalf of the Issuer by an Authorized Officer of the Owner
Trustee. The signature of any such Authorized Officer on the Notes may be manual
or facsimile.
Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Owner Trustee shall bind the Issuer,
notwithstanding that such individuals or any of them
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have ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
Subject to the satisfaction of the conditions set forth in Section 2.8,
the Indenture Trustee shall authenticate and deliver Notes for original issue in
an aggregate principal amount of $71,000,000. The aggregate principal amount of
Notes Outstanding at any time may not exceed such amount.
The Notes that are authenticated and delivered by the Indenture Trustee
to or upon the order of the Issuer on the Closing Date shall be dated December
10, 1998. All other Notes that are authenticated after the Closing Date for any
other purpose under this Indenture shall be dated the date of their
authentication. The Notes shall be issuable as registered Notes in the minimum
denomination of $25,000 and integral multiples of $1,000 in excess thereof.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.3 Registration; Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee initially shall be the "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar with the consent of the Note Insurer, the Issuer will give the
Indenture Trustee prompt written notice of the appointment of such Note
Registrar and of the location, and any change in the location, of the Note
Register, and the Indenture Trustee shall have the right to inspect the Note
Register at all reasonable times and to obtain copies thereof, and the Indenture
Trustee and the Note Insurer shall have the right to rely upon a certificate
executed on behalf of the Note Registrar by an Authorized Officer thereof as to
the names and addresses of the Owners of the Notes and the principal amounts and
number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, the Issuer
shall execute, and the Indenture Trustee shall authenticate and the Owner shall
obtain from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes in any authorized denominations, of a like
aggregate principal amount.
At the option of any Owner, Notes owned by such Owner may be exchanged
for other Notes in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Owner shall obtain from the
Indenture Trustee, the Notes which the Owner making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
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Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by the
Owner thereof or such Owner's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
Any Owner using the assets of (i) an employee benefit plan (as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a
plan described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended, or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity to purchase the Notes, or to whom
the Notes are transferred, will be deemed to have represented that the
acquisition and continued holding of the Notes will be covered by a U.S.
Department of Labor Class Exemption.
No service charge shall be made to an Owner for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.4 or Section 9.6 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make, and the Note Registrar need not register,
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to such
Note.
SECTION 2.4 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer, the Note Insurer and the
Indenture Trustee harmless, then, in the absence of notice to the Issuer, the
Note Registrar or the Indenture Trustee that such Note has been acquired by a
bona fide purchaser, and provided that the requirements of Section 8-405 of the
UCC are met, the Issuer shall execute, and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note; provided,
however, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within seven days shall be due and payable, or shall
have been called for redemption, instead of issuing a replacement Note, the
Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer, the Note Insurer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer, the Note Insurer or the Indenture Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Owner of such Note, other than the Note
Insurer, of a sum sufficient to cover any tax or other
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governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Indenture Trustee)
connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.5 Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Note Insurer, the
Indenture Trustee and any agent of the Issuer, the Note Insurer or the Indenture
Trustee may treat the Person in whose name any Note is registered (as of the day
of determination) as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Issuer, the Note Insurer, the Indenture Trustee or any agent of the Issuer or
the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.6 Payment of Principal and Interest; Defaulted Interest.
(a) The Notes shall accrue interest at the Series 1998-7B Note Rate as
set forth in the Sale and Servicing Agreement, and such interest shall be
payable on each Payment Date as specified therein, subject to Section 3.1
hereof. Any installment of interest or principal, if any, payable on any Note
that is punctually paid or duly provided for by the Issuer on the applicable
Payment Date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date by check mailed first-class
postage prepaid to such Person's address as it appears on the Note Register on
such Record Date, except that, unless Definitive Notes have been issued pursuant
to Section 2.12, with respect to Notes registered on the Record Date in the name
of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds to
the account designated by such nominee and except for the final installment of
principal payable with respect to such Note on a Payment Date or on the
applicable Final Payment Date (and except for the Redemption Price for any Note
called for redemption pursuant to Section 10.1), which shall be payable as
provided below. The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments on each
Payment Date as provided in the Sale and Servicing Agreement and the form of the
Notes set forth in Exhibit A. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid,
on the earlier of (i) the Final Payment Date, (ii) the Redemption Date or (iii)
the date on which an Event of Default shall have occurred and be continuing, if
the Indenture Trustee or the Owners of Notes representing not less than a
majority of the Outstanding Amount of the Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2. All principal
payments on the Notes shall be made pro rata to the Owners. The Indenture
Trustee shall notify the Person in whose name a Note is registered at the close
of business on the Record Date preceding the Payment Date on which the Issuer
expects that the final installment of principal of and interest on such Note
will be paid. Such notice shall be mailed or transmitted by facsimile prior to
such final Payment Date and shall specify that such final installment will be
payable only upon presentation and surrender of such Note and shall specify the
place where such Note may be presented and surrendered for payment of such
installment. A copy of such form of notice shall be sent to the Note Insurer by
the Indenture Trustee. Notices in connection with redemptions of Notes shall be
mailed to Owners as provided in Section 10.2.
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SECTION 2.7 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Notes may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time, unless the Issuer shall direct by an Issuer Order that they
be destroyed or returned to it; provided, that such Issuer Order is timely and
the Notes have not been previously disposed of by the Indenture Trustee.
SECTION 2.8 Authentication of Notes. The Notes may be authenticated by
the Indenture Trustee upon Issuer Request.
SECTION 2.9 Release of Collateral.
(a) Subject to subsections (b) and (c) hereof, Section 11.1 hereof and
the terms of the Operative Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(l) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates.
(b) The Servicer, on behalf of the Issuer, shall be entitled to obtain
a release from the lien of this Indenture for any Pool II Home Equity Loan and
the related Property at any time (i) after a payment by the Seller or the Issuer
of the Loan Purchase Price of the Pool II Home Equity Loan, (ii) after a
Qualified Replacement Mortgage is substituted for such Pool II Home Equity Loan
and payment of the Substitution Amount if any, (iii) after liquidation of the
Pool II Home Equity Loan in accordance with Section 4.13 of the Sale and
Servicing Agreement and the deposit of all Liquidation Proceeds thereon in the
Principal and Interest Account, or (iv) upon the termination of a Pool II Home
Equity Loan (due to, among other causes, a prepayment in full of the Pool II
Home Equity Loan and sale or other disposition of the related Property), if the
Issuer delivers to the Indenture Trustee and the Note Insurer an Issuer Request
(A) identifying the Pool II Home Equity Loan and the related Property to be
released, (B) requesting the release thereof, (C) setting forth the amount
deposited in the Principal and Interest Account with respect thereto, and (D)
certifying that the amount deposited in the Principal and Interest Account (x)
equals the Loan Purchase Price of the Pool II Home Equity Loan, in the event a
Pool II Home Equity Loan and the related Property are being released from the
lien of this Indenture pursuant to item (i) above, (y) equals the Substitution
Amount related to the Qualified Replacement Mortgage and the Pool II Home Equity
Loan being released from the lien of this Indenture pursuant to item (ii) above,
or (z) equals the entire amount of recoveries received with respect to such Pool
II Home Equity Loan and the related Property in the event of a release from the
lien of this Indenture pursuant to items (iii) or (iv) above.
(c) The Indenture Trustee shall, if requested in writing by the
Servicer, temporarily release or cause the Custodian to temporarily release to
the Servicer the File pursuant to the provisions of Section 4.14 of the Sale and
Servicing Agreement upon compliance by the Servicer of the provisions thereof
provided that the Indenture Trustee's File shall have been stamped to signify
the Issuer's pledge to the Indenture Trustee under this Indenture.
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SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, will
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Issuer. The Book-Entry Notes shall be registered initially
on the Note Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner of any Note will receive a definitive Note
representing such Book-Entry Owner's interest in such Note, except as provided
in Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Book-Entry Owners pursuant to
Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar, the Note Insurer and the Indenture
Trustee shall be entitled to deal with the Clearing Agency for
all purposes of this Indenture (including the payment of
principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole Owner of the
Notes, and shall have no obligation to the Book-Entry Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the
provisions of this Section shall control;
(iv) the rights of Book-Entry Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Book-Entry
Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of
and interest on the Notes to such Clearing Agency
Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Owners of Notes
evidencing a specified percentage of the Outstanding Amount of
the Notes, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received
instructions to such effect from Book-Entry Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial
interest in the Notes and has delivered such instructions to
the Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Owners is required under this Indenture, unless and until
Definitive Notes shall have been issued to such Book-Entry Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Owners of the Notes to the
Clearing Agency, and shall have no obligation to such Book-Entry Owners.
SECTION 2.12 Definitive Notes. If (i) the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Notes and the Issuer is unable to locate a qualified successor, (ii)
the Issuer at its option advises the Indenture Trustee in writing that it elects
to terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Owners of the Book-Entry Notes
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of such Notes advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of such Book-Entry Owners, then the Clearing Agency shall
notify all Book-Entry Owners and the Indenture Trustee of the occurrence of such
event and of the availability of Definitive Notes to Book-Entry Owners
requesting the
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same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Registrar, the Note Insurer or
the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Notes, the Indenture Trustee
shall recognize the Owners of the Definitive Notes as Owners.
SECTION 2.13 Tax Treatment. The Issuer has entered into this Indenture,
and the Notes will be issued, with the intention that, for federal, state and
local income, single business and franchise tax purposes, the Notes will qualify
as indebtedness of the Issuer secured by the Collateral. The Issuer, by entering
into this Indenture, and each Owner, by its acceptance of a Note (and each
Book-Entry Owner by its acceptance of an interest in the applicable Book-Entry
Note), agree to treat the Notes for federal, state and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer will duly and
punctually pay (or will cause to be duly and punctually paid) the principal of
and interest, if any, on the Notes in accordance with the terms of the Notes and
this Indenture. Without limiting the foregoing, subject to and in accordance
with Section 8.2(c), on each Payment Date the Issuer will cause to be
distributed all amounts on deposit in the Pool II Note Account deposited or
retained therein pursuant to the Sale and Servicing Agreement for the benefit of
the Owners of the Notes, to the Owners and the Note Insurer. Amounts properly
withheld under the Code by any Person from a payment to any Owner of interest
and/or principal shall be considered as having been paid by the Issuer to such
Owner for all purposes of this Indenture.
The Notes shall be non-recourse obligations of the Issuer and shall be
limited in right of payment to amounts available from the Collateral and any
amounts received by the Indenture Trustee under the Note Insurance Policy in
respect of the Notes, as provided in this Indenture and the Sale and Servicing
Agreement. The Issuer shall not otherwise be liable for payments on the Notes.
If any other provision of this Indenture shall be deemed to conflict with the
provisions of this Section 3.1, the provisions of this Section 3.1 shall
control.
SECTION 3.2 Maintenance of Office or Agency. The Issuer will maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. The Issuer will give
prompt written notice to the Indenture Trustee and the Note Insurer of the
location, and of any change in the location, of any such office or agency. If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Issuer hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As provided in
Section 8.2 (a ) and (b), all payments of amounts due and payable with respect
to any Notes that are to be made from amounts
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withdrawn from the Principal and Interest Account or retained in the Pool II
Note Account pursuant to Section 8.2(c) shall be made on behalf of the Issuer by
the Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from
the Principal and Interest Account or retained in the Pool II Note Account for
payments of Notes shall be paid over to the Issuer except as provided in this
Section 3.3.
On or before the second Business Day preceding each Payment Date and
Redemption Date, the Indenture Trustee shall deposit or cause to be deposited in
the Pool II Note Account an aggregate sum sufficient to pay the amounts due on
such Payment Date under the Notes, such sum to be held in trust for the benefit
of the Persons entitled thereto.
Subject to the prior consent of the Note Insurer, any Paying Agent
shall be appointed by Issuer Order with written notice thereof to the Indenture
Trustee and the Note Insurer. Any Paying Agent appointed by the Issuer shall be
a Person who would be eligible to be Indenture Trustee hereunder as provided in
Section 6.11. The Issuer shall not appoint any Paying Agent (other than the
Indenture Trustee) which is not, at the time of such appointment, a Designated
Depository Institution.
The Issuer will cause each Paying Agent to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent shall agree with the
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby
so agrees), subject to the provisions of this Section 3.3, that such Paying
Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the
Owners entitled thereto until such sums shall be paid to such
Owners or otherwise disposed of as herein provided and pay
such sums to such Owners as herein provided;
(ii) give the Indenture Trustee and the Note Insurer notice of
any default by the Issuer (or any other obligor upon the
Notes) of which it has actual knowledge in the making of any
payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such
Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the
payment of Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent at the time of
its appointment;
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of
any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith; provided, however, that with respect to withholding
and reporting requirements applicable to original issue
discount (if any) on the Notes, the Issuer shall have first
provided the calculations pertaining thereto to the Indenture
Trustee; and
(vi) not commence a bankruptcy proceeding against the Issuer
in connection with this Indenture.
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The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds or
abandoned property, any money held by the Indenture Trustee or any Paying Agent
in trust for the payment of any amount due with respect to any Note and
remaining unclaimed for two years after such amount has become due and payable
shall be discharged from such trust and be paid to the Issuer on Issuer Request;
and the Owner of such Note shall thereafter, as an unsecured general creditor,
look only to the Issuer for payment thereof (but only to the extent of the
amounts so paid to the Issuer), and all liability of the Indenture Trustee or
such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Indenture Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense and direction of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer. The Indenture Trustee shall also adopt and employ,
at the expense and direction of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice of
such repayment to Owners whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Owner).
SECTION 3.4 Existence.
(a) Subject to subsection (b) of this Section 3.4, the Issuer will keep
in full effect its existence, rights and franchises as a business trust under
the laws of the State of Delaware (unless it becomes, or any successor Issuer
hereunder is or becomes, organized under the laws of any other State or of the
United States of America, in which case the Issuer will keep in full effect its
existence, rights and franchises under the laws of such other jurisdiction) and
will obtain and preserve its qualification to do business in each jurisdiction
in which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes and the Collateral.
(b) Any successor to the Owner Trustee appointed pursuant to Section
10.2 of the Trust Agreement shall be the successor Owner Trustee under this
Indenture without the execution or filing of any paper, instrument or further
act to be done on the part of the parties hereto.
(c) Upon any consolidation or merger of or other succession to the
Owner Trustee, the Person succeeding to the Owner Trustee under the Trust
Agreement may exercise every right and power of the Owner Trustee under this
Indenture with the same effect as if such Person had been named as the Owner
Trustee herein.
SECTION 3.5 Protection of Collateral. The Issuer will from time to time
and upon the direction of the Note Insurer execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(i) provide further assurance with respect to the Grant of all
or any portion of the Collateral;
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(ii) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(iv) enforce any rights with respect to the Collateral; or
(v) preserve and defend title to the Collateral and the rights
of the Indenture Trustee, the Owners and the Note Insurer in
such Collateral against the claims of all persons and parties.
SECTION 3.6 Annual Opinions as to Collateral. On or before December 15
in each calendar year, beginning in 1999, the Issuer shall furnish to the
Indenture Trustee and the Note Insurer an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has been taken with respect to
the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as is necessary to maintain the lien and security interest created by
this Indenture and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until December 15 of the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Pool II Home
Equity Loans.
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any of such Person's material covenants or obligations under any instrument
or agreement included in the Collateral or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Sale and Servicing Agreement or such
other instrument or agreement.
(b) Subject to the prior consent of the Note Insurer, the Issuer may
contract with or otherwise obtain the assistance of other Persons to assist it
in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee and the Note Insurer in
an Officer's Certificate of the Issuer shall be deemed to be action taken by the
Issuer. Initially, the Issuer has contracted with the Servicer pursuant to the
Sale and Servicing Agreement to assist the Issuer in performing its duties under
this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Operative Documents
and in the instruments and agreements included in the Collateral, including but
not limited to (i) filing or causing to be filed all UCC financing statements
and continuation statements required to be filed by the terms of this Indenture
and the Sale and Servicing Agreement and (ii) recording or causing to be
recorded all Mortgages, Assignments of Mortgage, all intervening Assignments of
Mortgage and all assumption and modification agreements required to be recorded
by the terms of the Sale and Servicing Agreement, in accordance with and within
the time periods
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provided for in this Indenture and/or the Sale and Servicing Agreement, as
applicable. Except as otherwise expressly provided therein, the Issuer shall not
waive, amend, modify, supplement or terminate any Operative Document or any
provision thereof without the consent of the Indenture Trustee, the Note
Insurer, and the Owners of at least a majority of the Outstanding Amount of the
Notes.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Termination Event under the Sale and Servicing Agreement, the Issuer shall
promptly notify the Indenture Trustee, the Note Insurer and the Rating Agencies
thereof, and shall specify in such notice the action, if any, the Issuer is
taking with respect of such default. If such Servicer Termination Event shall
arise from the failure of the Servicer to perform any of its duties or
obligations under the Sale and Servicing Agreement with respect to the Pool II
Home Equity Loans, the Issuer shall take all reasonable steps available to it to
remedy such failure.
(e) As promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 4.20 of
the Sale and Servicing Agreement, the Issuer, upon the prior written consent of
or upon the direction of the Note Insurer, shall appoint a successor servicer
(the "Successor Servicer") in accordance with the provisions of Section 4.20 of
the Sale and Servicing Agreement.
(f) Upon any termination of the Servicer's rights and powers pursuant
to the Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee and the Note Insurer. As soon as a Successor Servicer is
appointed pursuant to Section 4.20 of the Sale and Servicing Agreement, the
Issuer shall notify the Indenture Trustee of such appointment, specifying in
such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees (i) that it will not, without the
prior written consent of the Indenture Trustee and the Note Insurer, or, if a
Note Insurer Default has occurred and is continuing, the Owners of at least a
majority in Outstanding Amount of the Notes, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral (except to the
extent otherwise provided in the Sale and Servicing Agreement) or the Operative
Documents, or waive timely performance or observance by the Servicer or the
Seller under the Sale and Servicing Agreement; and (ii) that any such amendment
shall not (A) increase or reduce in any manner the amount of, or accelerate or
delay the timing of, distributions that are required to be made for the benefit
of the Owners or (B) reduce the aforesaid percentage of the Notes that is
required to consent to any such amendment, without the consent of the Owners of
all the outstanding Notes. If any such amendment, modification, supplement or
waiver shall be so consented to by the Indenture Trustee and the Note Insurer,
the Issuer agrees, promptly following a request by the Indenture Trustee or the
Note Insurer to do so, to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as the
Indenture Trustee or the Note Insurer may deem necessary or appropriate in the
circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture or
the Sale and Servicing Agreement, sell, transfer,
exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those
included in the Collateral, unless directed to do so
by the Indenture Trustee or the Note Insurer;
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(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the
Notes (other than amounts properly withheld from such
payments under the Code) or assert any claim against
any present or former Owner by reason of the payment
of the taxes levied or assessed upon any part of the
Collateral;
(iii) engage in any business or activity other than as
permitted by the Trust Agreement or other than in
connection with, or relating to, the issuance of
Notes pursuant to this Indenture, or amend the Trust
Agreement as in effect on the Closing Date other than
in accordance with Section 11.1 thereof,
(iv) issue debt obligations under any indenture other than
this Indenture and the Indenture dated as of December
1, 1998 (the "Series 1998-7A Indenture"), between the
Issuer and the Indenture Trustee relating to the
Series 1998-7A Notes, as contemplated by the Sale and
Servicing Agreement;
(v) incur or assume any indebtedness or guaranty any
indebtedness of any Person, except for such
indebtedness as may be incurred by the Issuer in
connection with the issuance of the Notes pursuant to
this Indenture and the Series 1998-7A Indenture;
(vi) dissolve or liquidate in whole or in part or merge or
consolidate with any other Person;
(vii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this
Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be
released from any covenants or obligations with
respect to the Notes under this Indenture except as
may be expressly permitted hereby, (B) permit any
lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of
this Indenture) to be created on or extend to or
otherwise arise upon or burden the Collateral or any
part thereof or any interest therein or the proceeds
thereof (other than tax liens, mechanics' liens and
other liens that arise by operation of law, in each
case on any of the Properties and arising solely as a
result of an action or omission of the related
Mortgagor) or (C) permit the lien of this Indenture
not to constitute a valid first priority (other than
with respect to any such tax, mechanics' or other
lien) security interest in the Collateral;
(viii) take any other action or fail to take any action
which may cause the Issuer to be taxable as (a) an
association pursuant to Section 7701 of the Code and
the corresponding regulations or (b) as a taxable
mortgage pool pursuant to Section 7701(i) of the Code
and the corresponding regulations.
SECTION 3.9 Annual Statement as to Compliance. The Issuer will deliver
to the Indenture Trustee and the Note Insurer, within 120 days after the end of
each fiscal year of the Issuer (commencing with the 1999 fiscal year), an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(i) a review of the activities of the Issuer during such
year and of its performance under this Indenture has
been made under such Authorized Officer's
supervision; and
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(ii) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with
all conditions and covenants under the Indenture
throughout such year, or, if there has been a default
in its compliance with any such condition or
covenant, specifying each such default known to such
Authorized Officer and the nature and status thereof.
SECTION 3.10 Covenants of the Issuer. All covenants of the Issuer in
the Indenture are covenants of the Issuer and are not covenants of the Owner
Trustee. The Owner Trustee is, and any successor Owner Trustee under the Trust
Agreement will be, entering into this Indenture solely as Owner Trustee under
the Trust Agreement and not in its respective individual capacity, and in no
case whatsoever shall the Owner Trustee or any such successor Owner Trustee be
personally liable on, or for any loss in respect of, any of the statements,
representations, warranties or obligations of the Issuer hereunder, as to all of
which the parties hereto agree to look solely to the property of the Issuer.
SECTION 3.11 Investment Company Act. The Issuer shall not become an
"investment company" or under the "control" of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (or any
successor or amendatory statute), and the rules and regulations thereunder
(taking into account not only the general definition of the term "investment
company" but also any available exceptions to such general definition);
provided, however, that the Issuer shall be in compliance with this Section 3.11
if it shall have obtained an order exempting it from regulation as an
"investment company" so long as it is in compliance with the conditions imposed
in such order.
SECTION 3.12 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security or
(iii) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
to the Servicer, the Indenture Trustee, the Owner Trustee, the Note Insurer, the
Owners and the Certificateholders as contemplated by, and to the extent funds
are available for such purpose under, the Sale and Servicing Agreement or the
Trust Agreement. The Issuer will not, directly or indirectly, make or cause to
be made payments to or distributions from the Principal and Interest Account
except in accordance with this Indenture and the Operative Documents.
SECTION 3.13 Treatment of Notes as Debt for Tax Purposes. The Issuer
shall treat the Notes as indebtedness for all federal, state and local income
and franchise tax purposes.
SECTION 3.14 Notice of Events of Default. The Issuer shall give the
Indenture Trustee, the Note Insurer and the Rating Agencies prompt written
notice of each Event of Default hereunder and each default on the part of the
Servicer, the Depositor or the Seller of its obligations under the Sale and
Servicing Agreement.
SECTION 3.15 Further Instruments and Acts. Upon request of the
Indenture Trustee or the Note Insurer, the Issuer will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
SECTION 3.16 No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the Home
Equity Loans and the issuance of the Notes pursuant to this Indenture, the
Certificates issued pursuant to the Trust Agreement and the notes issued
pursuant to
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the Series 1998-7A Indenture, in the manner contemplated by this Indenture and
the Operative Documents and all activities incidental thereto.
SECTION 3.17 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes, the notes issued pursuant to the Series
1998-7A Indenture and amounts due to the Note Insurer under this Indenture, the
Series 1998-7A Indenture and the Insurance Agreement.
SECTION 3.18 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by this Indenture, the Series 1998-7A Indenture or the Operative
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.19 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes (except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Owners to receive payments of
principal thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8 and
3.10 hereof, (v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.7 and
the obligations of the Indenture Trustee under Section 4.2) and (vi) the rights
of Owners as beneficiaries hereof with respect to the property so deposited with
the Indenture Trustee payable to all or any of them), and the Indenture Trustee,
on demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when all of the following have occurred:
(A) either
(1) all Notes theretofore authenticated and delivered (other than (i)
Notes that have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.4 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the Indenture Trustee for
cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation
a. have become due and payable,
b. are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name, and at the
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expense, of the Issuer, and the Issuer, in the case of a. or b. above, has
irrevocably deposited or caused to be irrevocably deposited with the Indenture
Trustee cash or direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to the Final Payment Date or
Redemption Date (if Notes shall have been called for redemption pursuant to
Section 10.1), as the case may be;
(B) the later of (a) eighteen months after payment in full of all
outstanding obligations under the Notes, (b) the payment in full, in respect of
the Pool II Home Equity Loans, of all unpaid Indenture Trustee Fees and Premium
Amounts and all sums owing to the Note Insurer under the Insurance Agreement and
(c) the date on which the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.1 and, subject to Section
11.2, each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture with respect to the Notes have
been complied with.
SECTION 4.2 Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Sections 3.3 and 4.3 hereof shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Owners of the Notes for the payment or
redemption of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
moneys need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or required by law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.3 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default,"wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any Current Interest on any Note when the
same becomes due and payable; or
(b) default in the payment of the principal of or any installment of
the principal of any Note when the same becomes due and payable; or
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(c) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section 5.1 specifically dealt with), or any representation or warranty of
the Issuer made in this Indenture, the Insurance Agreement, the Sale and
Servicing Agreement or in any certificate or other writing delivered pursuant
hereto or in connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such default
shall continue or not be cured, or the circumstance or condition in respect of
which such misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days after there shall have
been given, by registered or certified mail, to the Issuer by the Indenture
Trustee or to the Issuer and the Indenture Trustee by the Owners of a majority
of the Outstanding Amount of the Notes, a written notice specifying such default
or incorrect representation or warranty and requiring it to be remedied and
stating that such notice is a notice of Default hereunder; or
(d) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Collateral in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Collateral, or
ordering the winding-up or liquidation of the Issuer's affairs, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(e) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Collateral, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer generally
to pay its debts as such debts become due, or the taking of any action by the
Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee and the Note Insurer,
within five days after the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default under clauses (c) and (d) above, its
status and what action the Issuer is taking or proposes to take with respect
thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, the Indenture Trustee (x)
shall, at the direction or upon the prior written consent of the Note Insurer or
(y) may, if a Note Insurer Default has occurred and is continuing, at the
direction of the Owners of Notes representing not less than a majority of the
Outstanding Amount of the Notes, declare all the Notes to be immediately due and
payable, by a notice in writing to the Issuer (and to the Indenture Trustee if
given by Owners), and upon any such declaration the unpaid principal amount of
such Notes, together with accrued and unpaid interest thereon through the date
of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity with
respect to an Event of Default has been made and before a judgment or decree for
payment of the money due has been obtained by the Indenture Trustee as
hereinafter in this Article V provided, the Note Insurer or, if a Note Insurer
Default exists, the Owners of Notes representing a majority of the Pool II Note
Principal Balance, with the prior written consent of the Note Insurer, by
written notice to the Issuer and the Indenture Trustee, may waive the related
Event of Default and rescind and annul such declaration and its consequences if:
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(a) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(i) all payments of principal of and interest on all
Notes and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default
giving rise to such acceleration had not occurred;
and
(ii) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee
and its agents and counsel; and
(iii) all Events of Default, other than the nonpayment of
the principal of the Notes that has become due solely
by such acceleration, have been cured or waived as
provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if (i) default is made in the payment of
any interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment of
the principal of or any installment of the principal of any Note when the same
becomes due and payable, the Issuer will, upon demand of the Indenture Trustee
and at the direction of the Note Insurer, pay to the Indenture Trustee, for the
benefit of the Owners of the Notes and the Note Insurer, the whole amount then
due and payable on such Notes for principal and interest, with interest upon the
overdue principal and, to the extent payment at such rate of interest shall be
legally enforceable, upon overdue installments of interest at the rate borne by
the Notes and in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and
the Note Insurer and their respective agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, shall at the direction of the Note Insurer, and if a Note Insurer Default
has occurred and is continuing, the Indenture Trustee may, in its discretion,
and shall at the direction of the Owners of the Notes representing a majority of
the Outstanding Amount of the Notes, institute a Proceeding for the collection
of the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor upon
such Notes and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Notes, wherever situated, the moneys adjudged
or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee shall, at the direction of the Note Insurer, and if a Note Insurer
Default has occurred and is continuing, the Indenture Trustee may, in its
discretion, and shall at the direction of the Owners of the Notes representing a
majority of the Outstanding Amount of the Notes, as more particularly provided
in Section 5.4, proceed to protect and enforce its rights and the rights of the
Note Insurer and the Owners, by such appropriate Proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Collateral, Proceedings under Title 11 of the
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United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property or
such other obligor or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the Notes, or to the
creditors or property of the Issuer or such other obligor, the Indenture
Trustee, irrespective of whether the principal of any Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, upon the direction
of the Note Insurer, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in
respect of the Notes and to file such other papers or
documents as may be necessary or advisable in order
to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to
the Indenture Trustee, each predecessor Indenture
Trustee and the Note Insurer, and their respective
agents, attorneys and counsel, and for reimbursement
of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each
predecessor Indenture Trustee (except as a result of
negligence or bad faith), the Note Insurer and of the
Owners allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Owners of Notes in any
election of a trustee, a standby trustee or Person
performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to
distribute all amounts received with respect to the
claims of the Owners, the Note Insurer and the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order
to have the claims of the Indenture Trustee, the Note
Insurer or the Owners of Notes allowed in any
judicial proceedings relative to the Issuer, its
creditors and its property; and any trustee,
receiver, liquidator, custodian or other similar
official in any such Proceeding is hereby authorized
by each of such Owners and the Note Insurer to make
payments to the Indenture Trustee and, in the event
that the Indenture Trustee shall consent to the
making of payments directly to such Owners and the
Note Insurer, to pay to the Indenture Trustee such
amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by
the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad
faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Owner or the Note Insurer any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Owner thereof
or the Note Insurer or to authorize the Indenture Trustee to vote in respect of
the claim of any Owner in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar Person.
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(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Owners of the Notes and the Note Insurer.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Owners, and it shall not be necessary to make any
Owner a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing, the
Indenture Trustee shall, at the direction of the Note Insurer, and if a Note
Insurer Default has occurred and is continuing, the Indenture Trustee may and at
the direction of the Owners of the Notes representing a majority of the
Outstanding Amount of the Notes shall, upon receipt of satisfactory indemnity
and assurances, do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee
of an express trust for the collection of all amounts
then payable on the Notes or under this Indenture
with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes
moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture
with respect to the Collateral;
(iii) exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect
and enforce the rights and remedies of the Indenture
Trustee, the Note Insurer or the Owners; and
(iv) sell the Collateral or any portion thereof or rights
or interest therein in a commercially reasonable
manner, at one or more public or private sales called
and conducted in any manner permitted by law;
provided, however, that if a Note Insurer Default has occurred and is
continuing, the Indenture Trustee may not sell or otherwise liquidate the
Collateral following an Event of Default, unless (A) the Owners of 100% of the
Outstanding Amount of the Notes consent thereto, (B) the proceeds of such sale
or liquidation distributable to the Owners are sufficient to discharge in full
all amounts then due and unpaid upon such Notes for principal and interest or
(C) the Indenture Trustee determines that the Collateral will not continue to
provide sufficient funds for the payment of principal of and interest on the
Notes as they would have become due if the Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of Owners of 66-2/3% of
the Outstanding Amount of the Notes. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C), the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national
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reputation as to the feasibility of such proposed action and as to the
sufficiency of the Collateral for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for the Indenture Trustee Fee relating
to the Pool II Home Equity Loans then due and any costs or expenses incurred by
it in connection with the enforcement of the remedies provided for in this
Article V and to the Owner Trustee for the Owner Trustee Fee relating to the
Pool II Home Equity Loans then due;
SECOND: to the Servicer for the Servicing Fee relating to the Pool II
Home Equity Loans then due and unpaid and any unreimbursed Delinquency Advances
and Servicing Advance;
THIRD: to the Note Insurer for the Premium Amount relating to the Notes
then due and unpaid;
FOURTH: to Owners for amounts due and unpaid on the Notes for Current
Interest, pro rata, according to the amounts due and payable on the Notes for
interest;
FIFTH: to Owners of the Notes for amounts due and unpaid on the Notes
for principal, pro rata;
SIXTH: to the Note Insurer for any amounts then due and payable under
the Insurance Agreement; and
SEVENTH: to the Trust Paying Agent, for any amounts to be distributed,
pro rata, to the Certificateholders.
The Indenture Trustee may fix a record date and payment date for any
payment to be made to the Owners pursuant to this Section. At least 15 days
before such record date, the Indenture Trustee shall mail to each Owner, the
Note Insurer and the Issuer a notice that states the record date, the payment
date and the amount to be paid.
SECTION 5.5 Optional Preservation of the Collateral. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Collateral. It is the desire of the parties hereto and the Owners that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the
Collateral. In determining whether to maintain possession of the Collateral, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose.
SECTION 5.6 Limitation of Suits. No Owner of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder for so long as a Note Insurer Default has not occurred or is
not continuing and if a Note Insurer Default has occurred and is continuing,
unless:
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(a) such Owner has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Owners of a majority of the Outstanding Amount of the Notes
have made written request to the Indenture Trustee to institute such Proceeding
in respect of such Event of Default in its own name as Indenture Trustee
hereunder;
(c) such Owner or Owners have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such Proceedings; and
(e) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Owners of a majority
of the Outstanding Amount of the Notes.
It is understood and intended that no one or more Owners of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Owners of Notes or to obtain or to seek to obtain priority or preference
over any other Owners or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Owners of Notes,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Owners To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, the Owner of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
Final Payment Date (or, in the case of redemption, on or after the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Owner.
SECTION 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee, the Note Insurer or any Owner has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to the
Indenture Trustee, the Note Insurer or to such Owner, then and in every such
case the Issuer, the Indenture Trustee, the Note Insurer and the Owners shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Indenture Trustee and the Owners shall continue as though no
such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee, the Note Insurer or to the
Owners is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee, the Note Insurer or any Owner of any Note to exercise any
right or remedy accruing upon any Default or
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Event of Default shall impair any such right or remedy or constitute a waiver of
any such Default or Event of Default or an acquiescence therein. Every right and
remedy given by this Article V or by law to the Indenture Trustee, the Note
Insurer or to the Owners may be exercised from time to time, and as often as may
be deemed expedient, by the Indenture Trustee, the Note Insurer or by the
Owners, as the case may be, subject, in each case, however, to the right of the
Note Insurer to control any such right and remedy, except as provided in Section
11.20.
SECTION 5.11 Control by Note Insurer or Owners. The Note Insurer, or if
a Note Insurer Default exists, the Owners of a majority of the Outstanding
Amount of the Notes shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on the Indenture
Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) if a Note Insurer Default exists, subject to the express terms of
Section 5.4, any direction to the Indenture Trustee to sell or liquidate the
Collateral shall be by Owners of Notes representing not less than 100% of the
Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been satisfied and
the Indenture Trustee elects to retain the Collateral pursuant to such Section,
then any direction to the Indenture Trustee by Owners of Notes representing less
than 100% of the Outstanding Amount of the Notes to sell or liquidate the
Collateral shall be of no force and effect; and
(d) if a Note Insurer Default exists, the Indenture Trustee may take
any other action deemed proper by the Indenture Trustee that is not inconsistent
with such direction.
Notwithstanding the rights of the Note Insurer and the Owners set forth
in this Section, subject to Section 6.1, the Indenture Trustee need not take any
action that it determines might involve it in liability or might materially
adversely affect the rights of any Owners not consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the Note
Insurer, or if a Note Insurer Default exists, the Owners of Notes representing
not less than a majority of the Outstanding Amount of the Notes may waive any
past Default or Event of Default and its consequences except a Default (a) in
the payment of principal of or interest on any of the Notes or (b) in respect of
a covenant or provision hereof that cannot be modified or amended without the
consent of the Note Insurer or the Owner of each Note, as applicable. In the
case of any such waiver, the Issuer, the Indenture Trustee, the Note Insurer and
the Owners of the Notes shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Owner of any Note by such Owner's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any
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party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to (a) any suit
instituted by the Indenture Trustee or the Note Insurer, (b) any suit instituted
by any Owner, or group of Owners, in each case holding in the aggregate more
than 10% of the Outstanding Amount of the Notes or (c) any suit instituted by
any Owner for the enforcement of the payment of principal of or interest on any
Note on or after the respective due dates expressed in such Note and in this
Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Owners shall be impaired by the recovery of any
judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any of
the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so,
the Issuer shall take all such lawful action as the Indenture Trustee may
request to compel or secure the performance and observance by the Depositor, the
Seller and the Servicer, as applicable, of each of their obligations to the
Issuer under or in connection with the Sale and Servicing Agreement and to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Issuer under or in connection with the Sale and Servicing Agreement to
the extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Depositor, the Seller or
the Servicer thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by the Depositor, the Seller or
the Servicer of each of their obligations under the Sale and Servicing
Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the written direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the Owners
of 66-2/3% of the Outstanding Amount of the Notes shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Depositor, the
Seller or the Servicer under or in connection with the Sale and Servicing
Agreement including the right or power to take any action to compel or secure
performance or observance by the Depositor, the Seller or the Servicer, as the
case may be, of each of their obligations to the Issuer thereunder and to give
any consent, request, notice, direction, approval, extension, or waiver under
the Sale and Servicing Agreement and any right of the Issuer to take such action
shall be suspended.
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ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee.
(a) If an Event of Default of which a Responsible Officer of the
Indenture Trustee shall have actual knowledge has occurred and is continuing,
the Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
(or similar documents) or opinions furnished to the Indenture Trustee
and conforming to the requirements of this Indenture; however, the
Indenture Trustee shall examine the certificates (or similar documents)
and opinions to determine whether or not they conform to the
requirements of this Indenture; provided that the Indenture Trustee
shall not be responsible for the accuracy or content of any certificate
(or similar document) or opinion furnished to it pursuant to the terms
of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Indenture Trustee shall not be personally liable for
any error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be personally liable
with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 5.11 or
for exercising or omitting to exercise any trust or power conferred
upon the Indenture Trustee under this Indenture.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this
Section.
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer and except to the extent of income or other gain on investments which are
deposits in or certificates of deposit of the Indenture Trustee in its
commercial capacity.
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(f) Money held in trust by the Indenture Trustee shall be segregated
from other funds except to the extent permitted by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; provided, however, that the Indenture Trustee shall
not refuse or fail to perform any of its duties hereunder solely as a result of
nonpayment of its normal fees and expenses and further provided that nothing in
this Section 6.1(g) shall be construed to limit the exercise by the Indenture
Trustee of any right or remedy permitted under this Indenture or otherwise in
the event of the Issuer's failure to pay the Indenture Trustee's fees and
expenses pursuant to Section 6.7. In determining that such repayment or
indemnity is not reasonably assured to it, the Indenture Trustee must consider
not only the likelihood of repayment or indemnity by or on behalf of the Issuer
but also the likelihood of repayment or indemnity from amounts payable to it
from the Collateral pursuant to Section 6.7.
(h) Every provision of this Indenture relating to the conduct of,
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
SECTION 6.2 Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Indenture
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel, which shall not be at
the expense of the Indenture Trustee. The Indenture Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on an
Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent or attorney or custodian appointed by the Indenture Trustee with due care.
(d) The Indenture Trustee shall not be liable for (i) any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that such action or omission by
the Indenture Trustee does not constitute willful misconduct, negligence or bad
faith; or (ii) any willful misconduct or gross negligence on the part of the
Custodian.
SECTION 6.3 Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, shall not be
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accountable for the Issuer's use of the proceeds from the Notes, or responsible
for any statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to the Note Insurer and each Owner notice of the
Default within 90 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note (including payments pursuant to
the mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of Owners.
SECTION 6.6 Reports by Indenture Trustee to Owners. The Indenture
Trustee shall deliver to each Owner such information as may be required to
enable such Owner to prepare its federal and state income tax returns.
SECTION 6.7 Compensation and Indemnity. The Indenture Trustee shall
receive compensation for fees and reimbursement for expenses pursuant to Section
3.03(b)(i) and Section 3.03(b)(iv)(D) of the Sale and Servicing Agreement. The
Indenture Trustee and any director, officer, employee or agent of the Indenture
Trustee shall be indemnified by the Issuer and held harmless against any loss,
liability, or "unanticipated out-of-pocket" expense incurred or paid to third
parties (which expenses shall not include salaries paid to employees, or
allocable overhead, of the Indenture Trustee) in connection with the acceptance
or administration of its trusts hereunder or the Notes, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. All such amounts described in the
preceding sentence shall be payable as provided in (A) Section 3.03(b)(i) of the
Sale and Servicing Agreement with respect to such amounts that are Indenture
Trustee Reimbursable Expenses and (B) Section 3.03(b)(iv)(D) with respect to the
remainder of such amounts, subject in the case of clause (B), subject to Section
6.1(g) of this Indenture. The provisions of this Section 6.7 shall survive the
termination of this Indenture.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(e) or (f) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. No resignation or removal
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section. The Indenture Trustee may resign at
any time by so notifying the Issuer and the Note Insurer. The Owners of a
majority of the Outstanding Amount of the Notes (with the consent of the Note
Insurer) may remove the Indenture Trustee by so notifying the Indenture Trustee
and may appoint a successor Indenture Trustee. The Note Insurer (or the Issuer
upon the prior written consent of the Note Insurer) shall remove the Indenture
Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(d) the Indenture Trustee otherwise becomes incapable of acting.
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If the Indenture Trustee resigns or is removed, or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee acceptable to the Note
Insurer. A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, the Note Insurer and to the
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to the Owners.
The retiring Indenture Trustee shall promptly transfer all property held by it
as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Owners of a majority of the Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Owner
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's obligations under Section 6.7 shall continue for the
benefit of the retiring Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided, that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide the Note
Insurer and the Rating Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force provided in the Notes or in this Indenture.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral may at the time be located, the Indenture
Trustee shall have the power, with the prior written consent of the Note
Insurer, and may execute and deliver all instruments to appoint one or more
Persons to act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person or
Persons, in such capacity and for the benefit of the Owners, such title to the
Collateral, or any part hereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the Indenture
Trustee may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required
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to meet the terms of eligibility as a successor trustee under Section 6.11 and
no notice to Owners of the appointment of any co-trustee or separate trustee
shall be required under Section 6.8 hereof; provided that the Indenture Trustee
shall deliver notice of any such co-trustee or separate trustee to the Servicer
and the Note Insurer.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture
Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is
not authorized to act separately without the Indenture Trustee
joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding
of title to the Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of
the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, jointly with the Indenture
Trustee, subject to all the provisions of this Indenture, specifically including
every provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall
at all times be authorized to exercise corporate trust powers. The Indenture
Trustee shall also satisfy the requirements of TIA Section 310(a) and shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and it or its parent shall have a
long-term debt rating of A3 or better by Moody's or shall otherwise be
acceptable to Moody's. The Indenture Trustee shall comply with TIA Section
310(b), including the optional provision permitted by the second sentence of TIA
Section 310(b)(9); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture
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or indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met. If
at any time the Indenture Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect specified in Section 6.8 hereof.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
OWNERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
Owners. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (a) not more than five days after each Record Date, a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses of
the Owners as of such Record Date, (b) at such other times as the Indenture
Trustee may request in writing, within 30 days after receipt by the Issuer of
any such request, a list of similar form and content as of a date not more than
10 days prior to the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2 Preservation of Information; Communications to Owners.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Owners contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.1
and the names and addresses of Owners received by the Indenture Trustee in its
capacity as Note Registrar. The Indenture Trustee may destroy any list furnished
to it as provided in such Section 7.1 upon receipt of a new list so furnished.
(b) Owners may communicate pursuant to TIA Section 312(b) with other
Owners with respect to their rights under this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
SECTION 7.3 Reports by Issuer. The Issuer shall:
(a) file with the Indenture Trustee and the Note Insurer, within 15
days after the Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Issuer may be required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(b) file with the Indenture Trustee and the Note Insurer and the
Commission in accordance with the rules and regulations prescribed from time to
time by the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations;
and
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(c) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Owners described in TIA Section 313(c)) such summaries
of any information, documents and reports required to be filed by the Issuer
pursuant to clauses (i) and (ii) of this Section 7.3(a) and by rules and
regulations prescribed from time to time by the Commission.
SECTION 7.4 Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each January 1, beginning with January 1, 1999, the
Indenture Trustee shall mail to the Note Insurer and to each Owner as required
by TIA Section 313(c) a brief report dated as of such date that complies with
TIA Section 313(a). The Indenture Trustee also shall comply with TIA Section
313(b).
A copy of each report at the time of its mailing to Owners shall be
filed by the Indenture Trustee with the Commission and each securities exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any securities exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money.
(a) General. Except as otherwise expressly provided herein, the
Indenture Trustee may demand payment or delivery of, and shall receive and
collect, directly and without intervention or assistance of any fiscal agent or
other intermediary, all money and other property payable to or receivable by the
Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply
all such money received by it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Collateral, the Indenture Trustee may, and upon written request of the Note
Insurer shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
(b) Claims Under Note Insurance Policy. The Notes will be insured by
the Note Insurance Policy pursuant to the terms set forth therein,
notwithstanding any provisions to the contrary contained in this Indenture or
the Sale and Servicing Agreement. The Note Insurance Policy also insures the
notes issued under the Series 1998-7A Indenture. All amounts received under the
Note Insurance Policy in respect of the Notes shall be used solely for the
payment to Owners of Insured Payments.
SECTION 8.2 Accounts; Distributions.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee for the
benefit of the Owners and the Note Insurer, the Accounts as provided in the Sale
and Servicing Agreement. The Indenture Trustee shall deposit amounts into the
Accounts in accordance with the terms hereof and the Sale and Servicing
Agreement.
(b) On or before the Monthly Remittance Date prior to each Payment
Date, the Servicer shall withdraw from the Principal and Interest Account the
amounts specified in Section 3.03(a) of the Sale and Servicing Agreement and
will deliver such amount to the Indenture Trustee for deposit into the Pool II
Note Account. No later than the Business Day prior to each Payment Date, to the
extent funds are available in the
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Pool II Note Account, the Indenture Trustee shall either retain funds in the
Pool II Note Account or make the withdrawals from the Pool II Note Account and
deposits into the other Accounts for distribution on such Payment Date as
required pursuant to Section 3.03(b) of the Sale and Servicing Agreement.
(c) On each Payment Date and the Redemption Date, to the extent funds
are available in the Pool II Note Account, the Indenture Trustee shall make the
following distributions from the amounts on deposit in the Pool II Note Account
in the following order of priority (except as otherwise provided in Section
5.4(b)):
(i) to the Owners of the Notes, the Current Interest for
such Payment Date; provided, that if there are not
sufficient funds in the Pool II Note Account to pay
the entire amount of accrued and unpaid interest then
due on the Notes, the amount in the Pool II Note
Account shall be applied to the payment of such
interest on the Notes pro rata on the basis of the
total such interest due on the Notes; and
(ii) to the Owners of the Notes, the Pool II Principal
Payment Amount for such Payment Date until the Pool
II Note Principal Balance is reduced to zero.
(d) The Indenture Trustee shall make claims in respect of the Home
Equity Loans under the Note Insurance Policy pursuant to Section 7.02 of the
Sale and Servicing Agreement and in accordance with the Note Insurance Policy.
The Indenture Trustee shall deposit any Insured Payment received from the Note
Insurer in respect of the Notes in the Pool II Note Account. All amounts
received under the Note Insurance Policy in respect of the Notes shall be used
solely for the payment to Owners of principal and interest on the Notes.
SECTION 8.3 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Accounts shall be invested
in Eligible Investments and reinvested by the Indenture Trustee at the direction
of the Seller in accordance with the provisions of Section 3.05 of the Sale and
Servicing Agreement. The Issuer will not direct the Indenture Trustee to make
any investment of any funds or to sell any investment held in any of the
Accounts unless the security interest Granted and perfected in such Account will
continue to be perfected in such investment or the proceeds of such sale, in
either case without any further action by any Person, and, in connection with
any direction to the Indenture Trustee to make any such investment or sale.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Seller shall have failed to give investment directions
for any funds on deposit in the Accounts to the Indenture Trustee by 11:00 a.m.
Eastern Time (or such other time as may be agreed by the Issuer and Indenture
Trustee) on any Business Day or (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.2 or (iii) if such
Notes shall been declared due and payable following an Event of Default, amounts
collected or receivable from the Collateral are being applied in accordance with
Section
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5.5 as if there had not been such a declaration, then the Indenture Trustee
shall, to the fullest extent practicable, invest and reinvest funds in the
Accounts in one or more Eligible Investments.
SECTION 8.4 Servicer's Monthly Statements. On each Payment Date (to the
extent it receives the supporting documentation from the Servicer on a timely
basis), the Indenture Trustee shall deliver the report required by Section 3.09
of the Sale and Servicing Agreement with respect to such Payment Date to the
Depositor, the Seller, the Servicer, the Rating Agencies, and the Note Insurer.
SECTION 8.5 Release of Collateral.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the Indenture Trustee may, and when required by the provisions of
this Indenture and the Sale and Servicing Agreement shall, execute instruments
to release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article VIII
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Note Insurer, the Indenture Trustee and the
Owner Trustee in respect of the Notes have been paid, release any remaining
portion of the Collateral that secured the Notes from the lien of this Indenture
and release to the Issuer or any other Person entitled thereto any funds then on
deposit in the Accounts. The Indenture Trustee shall release property from the
lien of this Indenture pursuant to this Subsection (b) only upon receipt of an
Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel
and (if required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.1.
SECTION 8.6 Opinion of Counsel. The Indenture Trustee and the Note
Insurer shall receive at least seven Business Days notice when requested by the
Issuer to take any action pursuant to Section 8.5(a), accompanied by copies of
any instruments involved, and the Indenture Trustee shall also require, as a
condition to such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
and such action will not materially and adversely impair the security for the
Notes or the rights of the Owners in contravention of the provisions of this
Indenture; provided, however, that such Opinion of Counsel shall not be required
to express an opinion as to the fair value of the Collateral. Counsel rendering
any such opinion may rely, without independent investigation, on the accuracy
and validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Owners.
(a) Without the consent of the Owners of any Notes but with prior
notice to the Rating Agencies and with the prior written consent of the Note
Insurer, the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental
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hereto (which shall conform to the provisions of the Trust Indenture Act as in
force at the date of the execution thereof), in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or
better to assure, convey and confirm unto the
Indenture Trustee any property subject or required to
be subjected to the lien of this Indenture, or to
subject to the lien of this Indenture additional
property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to
the Issuer, and the assumption by any such successor
of the covenants of the Issuer herein and in the
Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Owners of the Notes, or to surrender
any right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture
that may be inconsistent with any other provision
herein or in any supplemental indenture or to make
any other provisions with respect to matters or
questions arising under this Indenture or in any
supplemental indenture; provided, that such action
shall not adversely affect the interests of the
Owners of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with
respect to the Notes and to add to or change any of
the provisions of this Indenture as shall be
necessary to facilitate the administration of the
trusts hereunder by more than one trustee, pursuant
to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to
effect the qualification of the Indenture under the
TIA or under any similar federal statute hereafter
enacted and to add to the Indenture such other
provisions as may be expressly required by the TIA;
or
(viii) to modify or alter the provisions of the definition
of the term "Outstanding".
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, with the prior written
consent of the Note Insurer, when authorized by an Issuer Order, may, upon
satisfaction of the Rating Agency Condition but without the consent of any of
the Owners , enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Owners of the Notes under this Indenture; provided, however, that
such action shall not, as evidenced by (i) an Opinion of Counsel or (ii)
satisfaction of the Rating Agency Condition, adversely affect in any material
respect the interests of any Owner.
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SECTION 9.2 Supplemental Indentures with Consent of Owners. The Issuer
and the Indenture Trustee, when authorized by an Issuer Order, also may, with
the prior consent of the Note Insurer and with the consent of the Owners of not
less than a majority of the Outstanding Amount of the Notes, by Act of such
Owners delivered to the Issuer and the Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Owners of the
Notes under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Owner of each Note affected thereby
and the Note Insurer if affected thereby:
(a) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof or, the Series
1998-7B Note Rate, change the provisions of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the Collateral to
payment of principal of or interest on the Notes, or change any place of payment
where, or the coin or currency in which, any Note or the interest thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(b) reduce the percentage of the Outstanding Amount of the Notes, the
consent of the Owners of which is required for any such supplemental indenture,
or the consent of the Owners of which is required for any waiver of compliance
with certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(c) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Collateral pursuant to Section 5.4;
(d) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional provisions of
this Indenture or the Operative Documents cannot be modified or waived without
the consent of the Owner of each Note affected thereby;
(e) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the amount of any payment of interest or principal due
on any Note on any Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the rights of the Owners
of Notes to the benefit of any provisions for the mandatory redemption of the
Notes contained herein; or
(f) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Collateral or,
except as otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive the Owner of any
Note of the security provided by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Owners of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
In connection with requesting the consent of the Owners pursuant to
this Section, the Indenture Trustee shall mail to the Owners of the Notes to
which such amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. It shall not be
necessary
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for any Act of Owners under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Owners of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Notes.
SECTION 9.7 Amendments to Trust Agreement. Subject to Section 11.1 of
the Trust Agreement, the Indenture Trustee shall, upon Issuer Order, consent to
any proposed amendment to the Trust Agreement or an amendment to or waiver of
any provision of any other document relating to the Trust Agreement, such
consent to be given without the necessity of obtaining the consent of the Owners
of any Notes upon satisfaction of the requirements under Section 11.1 of the
Trust Agreement.
Nothing in this Section shall be construed to require that any Person
obtain the consent of the Indenture Trustee to any amendment or waiver or any
provision of any document where the making of such amendment or the giving of
such waiver without obtaining the consent of the Indenture Trustee is not
prohibited by this Indenture or by the terms of the document that is the subject
of the proposed amendment or waiver.
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ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. Upon the completion of an Auction Sale
pursuant to Section 5.02 of the Sale and Servicing Agreement, the Issuer shall
use the proceeds it receives from the sale of the Home Equity Loans in Loan Pool
II to redeem the Notes, in whole and not in part, and terminate this Indenture.
In the event that on or prior to the Clean Up Call Date there has not been an
Auction Sale, the Servicer, or if the Servicer declines to exercise such option,
the Note Insurer may purchase all of the Home Equity Loans in both Loan Pools as
provided in Section 5.02(d) of the Sale and Servicing Agreement. Upon such
purchase by the Servicer or the Note Insurer, the Issuer shall use the proceeds
it receives from the sale of the Home Equity Loans to redeem the Notes, in whole
and not in part, and terminate this Indenture.
Any such redemption shall be accomplished by the purchaser of the Home
Equity Loans at the Auction Sale, the Servicer or the Note Insurer, as
applicable, depositing or causing to be deposited into the Principal and
Interest Account by 10:00 A.M. New York City time on the on the Monthly
Remittance Date prior to the Redemption Date (or such later Payment Date on
which the Collateral is purchased) the amount of the Redemption Price. On the
Payment Date after the date that the Redemption Price is deposited into the
Principal and Interest Account, the Redemption Price shall be transferred to the
Pool II Note Account for distribution as provided in the Sale and Servicing
Agreement on the Redemption Date; and any amounts received with respect to the
Pool II Home Equity Loans and REO Properties subsequent to such transfer shall
belong to the purchaser of the Home Equity Loans at the Auction Sale, the
Servicer or the Note Insurer, as applicable.
The Issuer shall furnish the Depositor, the Indenture Trustee, the
Rating Agencies and the Note Insurer notice of any such redemption in accordance
with Section 10.2 no later than 15 days prior to the Redemption Date.
SECTION 10.2 Form of Redemption Notice
(a) Notice of redemption under Section 10.1 shall be given by the
Indenture Trustee by first-class mail, postage prepaid, or by facsimile mailed
or transmitted not later than 10 days prior to the applicable Redemption Date to
each Owner of Notes, as of the close of business on the Record Date preceding
the applicable Redemption Date, at such Owner's address or facsimile number
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the
office or agency of the Issuer to be maintained as
provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name of the Issuer and at the expense of the Servicer. Failure to
give notice of redemption, or any defect therein, to any Owner of any Note shall
not impair or affect the validity of the redemption of any other Note.
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SECTION 10.3 Notes Payable on Redemption Date; Provision for Payment of
Indenture Trustee and Note Insurer. The Notes or portions thereof to be redeemed
shall, following notice of redemption as required by Section 10.2 (in the case
of redemption pursuant to Section 10.1), on the Redemption Date become due and
payable at the Redemption Price and (unless the Issuer shall default in the
payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price. The Issuer may not redeem the
Notes unless, (i) all outstanding obligations under the Notes have been paid in
full and (ii) the Indenture Trustee and the Owner Trustee have been paid all
amounts in respect of the Notes to which they are entitled hereunder, the Note
Insurer has been paid all Premium Amounts and Reimbursement Amounts and any
other amounts to which it is entitled pursuant to the Operative Documents as of
the applicable Redemption Date, the Servicer has been paid all amounts to which
it is entitled pursuant to the Operative Documents as of the applicable
Redemption Date and any required amounts have been deposited in the Reserve
Account.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.
Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and (ii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; and
(3) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such
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certificate of an Authorized Officer or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Servicer, the Seller, the
Issuer or the Depositor, stating that the information with respect to such
factual matters is in the possession of the Servicer, the Seller, the Issuer or
the Depositor, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3 Acts of Owners.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by Owners
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Owners in person or by agents duly appointed in
writing; and except as herein otherwise expressly provided such action shall
become effective when such instrument or instruments are delivered in writing to
the Indenture Trustee, and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Owners
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Owner of any Notes shall bind the Owner of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer, Rating
Agencies and Note Insurer. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Owners or other documents provided or
permitted by this Indenture shall be in writing and if such request, demand,
authorization, direction, notice, consent, waiver or act of Owners is to be made
upon, given or furnished to or filed with:
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(a) the Indenture Trustee by any Owner or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) in the case of the Issuer, Rating Agencies or Note Insurer as
provided in Section 6.12 of the Sale and Servicing Agreement.
SECTION 11.5 Notices to Owners; Waiver. Where this Indenture provides
for notice to Owners of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class, postage prepaid to each Owner affected by such event, at his
address as it appears on the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Owners is given by mail ,neither the failure to mail
such notice nor any defect in any notice so mailed to any particular Owner shall
affect the sufficiency of such notice with respect to other Owners, and any
notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Owners shall be filed with the Indenture Trustee
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Owners when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.6 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.7 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.8 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents.
SECTION 11.9 Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
46
<PAGE>
SECTION 11.10 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Owners, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Collateral, any benefit or any legal or equitable right, remedy or claim
under this Indenture, except that the Note Insurer is an express third party
beneficiary to this Indenture as provided in Section 11.19.
SECTION 11.11 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.12 Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.14 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Owners or any other Person secured
hereunder or for the enforcement of any right or remedy granted to the Indenture
Trustee under this Indenture.
SECTION 11.15 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any Owner of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI, VII and VIII of the Trust Agreement.
SECTION 11.16 No Petition. The Indenture Trustee, by entering into this
Indenture, and each Owner, by accepting a Note, hereby covenant and agree that
they will not at any time institute against the Depositor or the Issuer, or join
in any institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or any
of the Operative Documents.
47
<PAGE>
SECTION 11.17 Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee or the Note
Insurer, during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees, and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall and shall cause its representatives to
hold in confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
SECTION 11.18 Grant of Owner Rights to Note Insurer. In consideration
for the guarantee of the Notes by the Note Insurer pursuant to the Note
Insurance Policy, the Owners hereby grant to the Note Insurer the right to act
as the Owner of 100% of the outstanding Notes for the purpose of exercising the
rights of the Owners of the Notes hereunder, including the voting rights of such
Owners, but excluding those rights requiring the consent of all such Owners
under Section 9.2 and any rights of such Owners to distributions under Section
8.2 hereof; provided that the preceding grant of rights to the Note Insurer by
the Owners shall be subject to Section 11.20 hereof. The rights of the Note
Insurer to direct certain actions and consent to certain actions of the Owners
hereunder will terminate at such time as the Pool II Note Principal Balance has
been reduced to zero and the Note Insurer has been reimbursed for all Insured
Payments and any other amounts respecting the Notes owed under the Note
Insurance Policy and the Insurance Agreement and the Note Insurer has no further
obligation under the Note Insurance Policy with respect to the Notes.
SECTION 11.19 Third Party Beneficiary. The parties hereto acknowledge
that the Note Insurer is an express third party beneficiary hereof entitled to
enforce any rights reserved to it hereunder as if it were actually a party
hereto.
SECTION 11.20 Suspension and Termination of Note Insurer's Rights.
(a) During the continuation of a Note Insurer Default, rights granted
or reserved to the Note Insurer hereunder shall vest instead in the Owners;
provided that the Note Insurer shall be entitled to any distributions in
reimbursement of the Reimbursement Amount, and the Note Insurer shall retain
those rights under Section 9.2 hereof to consent to any supplement to this
Indenture.
(b) At such time as either (i) the Pool II Note Principal Balance has
been reduced to zero or (ii) the Note Insurance Policy has been terminated
following a Note Insurer Default, and in either case of (i) or (ii) the Note
Insurer has been reimbursed for all Insured Payments and any other amounts
respecting the Notes owed under the Note Insurance Policy and the Insurance
Agreement (and the Note Insurer no longer has any obligation under the Note
Insurance Policy in respect of the Notes, except for breach thereof by the Note
Insurer), then the rights and benefits granted or reserved to the Note Insurer
hereunder (including the rights to direct certain actions and receive certain
notices) shall terminate and the Owners shall be entitled to the exercise of
such rights and to receive such benefits of the Note Insurer following such
termination to the extent that such rights and benefits are applicable to the
Owners.
48
<PAGE>
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
By: WILMINGTON TRUST COMPANY
not in its individual capacity but solely as Owner Trustee
By: /s/ Emmett R. Harmon
-----------------------------
Name: Emmett R. Harmon
Title: Vice President
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s/ Jennifer Cupo
-----------------------------
Name Jennifer Cupo
Title: Assistant Vice President
49
<PAGE>
STATE OF DELAWARE
COUNTY OF NEW CASTLE
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Emmett R. Harmon, known to me
to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said
WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner
Trustee on behalf of IMC HOME EQUITY LOAN OWNER TRUST 1998-7, a Delaware
business trust, and that such person executed the same as the act of said
business trust for the purpose and consideration therein expressed, and in the
capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 9th day of December, 1998.
Kathleen A. Pedelini
----------------------------------------------
Notary Public in and for the State of Delaware
(Seal)
My commission expires:
October 31, 2002
- - ------------------------
50
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 10th day of December, 1998, before me personally appeared
Jennifer Cupo, to me known, who being by me duly sworn did depose and say that
he/she resides at 450 W. 33rd St., that he/she is a Assistant Vice President,
The Chase Manhattan Bank, the New York banking corporation described in and that
executed the above instrument as Indenture Trustee; and that he/she signed
his/her name thereto by order of the Board of Directors of said New York banking
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my officiaL
seal the day and year in this certificate first above written.
NOTARIAL SEAL
Jill G. Chavooshian
-----------------------
Notary Public
Notary Public, State of New York
My Commission Expires: March 10, 1999
51
<PAGE>
SCHEDULE A
Available Upon Request to the Indenture Trustee
<PAGE>
EXHIBIT A
Form of Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
<TABLE>
<S> <C>
Date of Indenture: As of December 1, 1998 Original Note Principal Balance: $71,000,000
First Payment Date: January 20, 1999 CUSIP No.
--------------------------------
Denomination: $ Note No: 0001
----------------------
</TABLE>
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
HOME EQUITY LOAN ASSET BACKED NOTES, SERIES 1998-7B
IMC HOME EQUITY LOAN OWNER TRUST 1998-7, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of _______________________
($_____________) payable on each Payment Date in an amount equal to the result
obtained by multiplying (i) a fraction the numerator of which is
$_____________________ and the denominator of which is $71,000,000 by (ii) the
aggregate amount, if any, payable under this Note pursuant to the Indenture
dated as of December 1, 1998, between the Issuer and The Chase Manhattan Bank, a
New York banking corporation as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the earlier of (i) the Payment Date occurring in October 2029
(the "Final Payment Date"), (ii) the Redemption Date, if any, pursuant to
Article X of the Indenture or (iii) the date on which an Event of Default shall
have occurred and be continuing, if the Indenture Trustee, at the direction or
upon prior written consent of the Note Insurer or, if a Note Insurer Default has
occurred and is continuing, the Owners of Notes representing not less than a
majority of the Outstanding Amount of the Notes, have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. Capitalized terms used but not defined herein are defined in Article
I of the Indenture.
Pursuant to the terms of the Indenture, payments will be made on the
20th day of each month or, if such day is not a Business Day, on the Business
Day immediately following such 20th day (the "Payment Date"), commencing on the
first Payment Date specified above, to the Person in whose name this Note is
1
<PAGE>
registered at the close of business on the applicable Record Date, in an amount
equal to the product of (a) the Percentage Interest evidenced by this Note and
(b) the sum of the Current Interest, Pool II Principal Payment Amount and any
Insured Payment with respect to such Payment Date, all as more specifically set
forth in the Indenture and the Sale and Servicing Agreement.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[Signatures follow]
2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date:
---------------------
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
By: WILMINGTON TRUST COMPANY
not in its individual capacity but solely
as Owner
Trustee under the Trust Agreement
By:
------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date:
---------------------
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By:
------------------------
Authorized Signatory
3
<PAGE>
[Reverse of Note]
This Note is one of a Series of a duly authorized issue of Notes of the
Issuer, designated as its Home Equity Loan Asset Backed Notes, Series 1998-7B
(herein called the "Notes"), issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Owners of the Notes. To the extent that any provision of this
Note contradicts or is inconsistent with the provisions of the Indenture, the
provisions of the Indenture shall control and supersede such contradictory or
inconsistent provision herein. Terms not defined herein will have the
definitions as provided in the Indenture. The Notes are subject to all terms of
the Indenture.
The Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Notes will be payable on each Payment Date in an
amount described on the face hereof.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Final Payment Date and the
Redemption Date, if any, pursuant to Article II of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee, at the direction or upon
the prior written consent of Financial Security Assurance Inc. (the "Note
Insurer") or, if a Note Insurer Default has occurred and is continuing, at the
direction of the Owners of the Notes representing not less than a majority of
the Outstanding Amount of the Notes, have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Notes shall be made pro rata to the Owners entitled
thereto on the basis of their Pool II Note Principal Balance.
The Note Insurer has issued a Note Insurance Policy in the name of the
Indenture Trustee for the benefit of the Owners and for the benefit of the
owners of the Series 1998-7A Notes. Unless a Note Insurer Default shall be
continuing, subject to Section 11.18 of the Indenture, the Note Insurer shall be
deemed to be the Owner of 100% of the Pool II Note Principal Balance of the
Outstanding Notes for the purpose of exercising the rights, including voting
rights, of the Owners under the Indenture. In addition, on each Payment Date,
after the Owners have been paid all amounts to which they are entitled, the Note
Insurer will be entitled to be reimbursed for any unreimbursed Insured Payments
and any other amounts owed under the Note Insurance Policy in respect of the
Notes.
Payments of interest on this Note are due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Owner of the Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) effected by any payments made on any Payment Date
shall be binding upon all future Owners of this Note and of any Note issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided
in the Indenture, for payment
4
<PAGE>
in full of the then remaining unpaid principal amount of this Note on a Payment
Date, then the Indenture Trustee, in the name of and on behalf of the Issuer,
will notify the Person who was the Owner hereof as of the Record Date preceding
such Payment Date by notice mailed or transmitted by facsimile prior to such
Payment Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's principal
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in The City of New York.
As provided in the Indenture, the Notes may be redeemed if the Majority
Certificateholders, on the Redemption Date or any Payment Date thereafter,
purchase all of the Collateral at the Redemption Price. Upon such purchase, the
Issuer shall use the proceeds it receives from the sale of the Collateral to
redeem the Notes, in whole, but not in part, and terminate the Indenture
pursuant to Article X of the Indenture and Section 5.02 of the Sale and
Servicing Agreement. If the Majority Certificateholders decline to exercise such
option, the Servicer, or if the Servicer declines to exercise such option, the
Note Insurer may do so as provided in Section 5.02(c) of the Sale and Servicing
Agreement.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by the Owner hereof or such Owner's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended, and thereupon one or more new Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, other than for exchanges as provided under
Sections 2.4 and 9.6 of the Indenture, but the transferor may be required to pay
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such registration of transfer or exchange.
Each Owner, by acceptance of a Note or, in the case of a Book-Entry
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Depositor, the Seller, the Servicer, the Owner Trustee or the
Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such person may have expressly agreed and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Owner or Book-Entry Owner, by acceptance of a Note or, in the case
of a Book-Entry Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Owner or Book-Entry Owner will
not at any time institute against the Seller, the Servicer, the Depositor, or
the Issuer, or join in any institution against the Seller, the Servicer, the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or similar law in connection with any obligations relating to the
Notes, the Indenture or any of the Operative Documents.
5
<PAGE>
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Owner, by acceptance of a Note (and each
Book-Entry Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Owners of the Notes under the Indenture at any time
by the Issuer with the consent of the Note Insurer and the Owner of Notes
representing a majority of the Outstanding Amount of Notes. The Indenture also
contains provisions permitting the Note Insurer, or if a Note Insurer Default
exists, the Owners of Notes representing not less than a majority of the
Outstanding Amount of the Notes on behalf of the Owners of all the Notes to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Owner of this Note (or any one or more Predecessor
Notes) shall be conclusive and binding upon such Owners and upon all future
Owners of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
amendment thereof, in certain limited circumstances, or the waiver of certain
terms and conditions set forth in the Indenture, without the consent of Owners
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Operative Documents, none of the Issuer in its individual
capacity, the Owner Trustee in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of them for,
the payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Owner of this Note by its acceptance hereof
agrees that, except as expressly provided in the Operative Documents, in the
case of an Event of Default under the Indenture, the Owner shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to
6
<PAGE>
prevent recourse to, and enforcement against, the assets of the Issuer for any
and all liabilities, obligations and undertakings contained in the Indenture or
in this Note.
7
<PAGE>
ASSIGNMENT
Social Security or Taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
- - --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:
--------------------*/
Signature Guaranteed:
- - ---------------------------*/
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
8
Exhibit 4.3
TRUST AGREEMENT
between
IMC SECURITIES, INC.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of December 1, 1998
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE....................................................1
SECTION 1.1 Capitalized Terms.............................................................1
SECTION 1.2 Other Definitional Provisions.................................................3
ARTICLE II
ORGANIZATION..................................................................................4
SECTION 2.1 Name..........................................................................4
SECTION 2.2 Office........................................................................4
SECTION 2.3 Purpose and Powers............................................................4
SECTION 2.4 Appointment of Owner Trustee..................................................5
SECTION 2.5 Initial Capital Contribution of the Owner Trust Estate........................5
SECTION 2.6 Declaration of Trust..........................................................5
SECTION 2.7 Liability of the Holders......................................................5
SECTION 2.8. Title to Trust Property.......................................................5
SECTION 2.9 Situs of Trust................................................................5
SECTION 2.10 Representations and Warranties of the Depositor...............................5
SECTION 2.11 Federal Income Tax Allocations................................................6
ARTICLE III
THE CERTIFICATES..............................................................................7
SECTION 3.1 Initial Certificate Ownership.................................................7
SECTION 3.2 Form of the Certificates......................................................7
SECTION 3.3 Execution, Authentication and Delivery........................................7
SECTION 3.4 Registration; Registration of Transfer and Exchange of Certificates...........7
SECTION 3.5 Mutilated; Destroyed; Lost or Stolen Certificates.............................8
SECTION 3.6 Persons Deemed Holders........................................................8
SECTION 3.7 Access to List of Holders' Names and Addresses................................9
SECTION 3.8 Maintenance of Office For Surrenders..........................................9
SECTION 3.9 Appointment of Trust Paying Agent.............................................9
SECTION 3.10 Restriction on Transfers of Certificate......................................10
SECTION 3.11 Duties of the Certificate Registrar and Trust Paying Agent...................12
ARTICLE IV
ACTIONS BY OWNER TRUSTEE.....................................................................13
SECTION 4.1 Prior Notice to Owners with Respect to Certain Matters.......................13
SECTION 4.2 Action by Holders with Respect to Certain Matters............................14
SECTION 4.3 Action by Holders with Respect to Bankruptcy.................................14
SECTION 4.4 Restrictions on Holders' Power...............................................14
SECTION 4.5 Majority Control.............................................................14
ARTICLE V
APPLICATION OF OWNER TRUST ESTATE; CERTAIN DUTIES............................................15
SECTION 5.1 Establishment of Certificate Distribution Account.............................15
SECTION 5.2 Application of Trust Funds....................................................15
SECTION 5.3 Method of Payment.............................................................15
SECTION 5.4 Segregation of Moneys; No Interest............................................16
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SECTION 5.5 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others...................................................16
SECTION 5.6 Signature on Returns; Tax Matters Partner....................................16
ARTICLE VI
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE....................................................17
SECTION 6.1 General Authority............................................................17
SECTION 6.2. General Duties...............................................................17
SECTION 6.3 Action upon Instruction by Owners............................................17
SECTION 6.4 No Duties Except as Specified in this Agreement, the Operative
Documents or in Instructions.................................................18
SECTION 6.5 No Action Except Under Specified Documents or Instructions...................18
SECTION 6.6 Restrictions.................................................................18
ARTICLE VII
CONCERNING THE OWNER TRUSTEE.................................................................19
SECTION 7.1 Acceptance of Trusts and Duties..............................................19
SECTION 7.2 Furnishing of Documents......................................................20
SECTION 7.3 Representations and Warranties of Owner Trustee..............................20
SECTION 7.4 Reliance; Advice of Counsel..................................................21
SECTION 7.5 Owner Trustee May Own Certificates and Notes.................................21
SECTION 7.6 Licenses.....................................................................22
ARTICLE VIII
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
AND ITS AGENTS...............................................................................23
SECTION 8.1 Owner Trustee's Fee and Expenses.............................................23
SECTION 8.2 Indemnification of the Owner Trustee.........................................23
SECTION 8.3 Payments to the Owner Trustee................................................23
SECTION 8.4 Indemnification of the Certificate Registrar and
Trust Paying Agent...........................................................24
ARTICLE IX
TERMINATION OF TRUST AGREEMENT...............................................................25
SECTION 9.1 Termination of Trust Agreement...............................................25
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.......................................26
SECTION 10.1 Eligibility Requirements for Owner Trustee...................................26
SECTION 10.2 Resignation or Removal of Owner Trustee......................................26
SECTION 10.3 Successor Owner Trustee......................................................26
SECTION 10.4 Merger or Consolidation of Owner Trustee.....................................27
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee................................27
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ARTICLE XI
MISCELLANEOUS.........................................................................................29
SECTION 11.1 Amendments Without Consent of Certificateholders or
Owners of the Notes..........................................................29
SECTION 11.2 Amendments With Consent of Certificateholders................................29
SECTION 11.3 Form of Amendments...........................................................29
SECTION 11.4 No Legal Title to Owner Trust Estate.........................................29
SECTION 11.5 Limitations on Rights of Others..............................................30
SECTION 11.6 Notices......................................................................30
SECTION 11.7 Severability.................................................................30
SECTION 11.8 Counterparts.................................................................30
SECTION 11.9 Successors and Assigns.......................................................30
SECTION 11.10 No Petition Covenant.........................................................31
SECTION 11.11 No Recourse..................................................................31
SECTION 11.12 Headings.....................................................................31
SECTION 11.13 Governing Law................................................................31
SECTION 11.14 Integration..................................................................31
SECTION 11.15 Third-Party Beneficiary......................................................31
SECTION 11.16 Suspension and Termination of Note Insurer's Rights..........................31
</TABLE>
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TRUST AGREEMENT, dated as of December 1, 1998, between IMC SECURITIES,
INC., a Delaware corporation (the "Depositor") and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity but solely as Owner
Trustee (the "Owner Trustee").
The Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Agreement" shall mean this Trust Agreement, as the same may
be amended and supplemented from time to time.
"Bankruptcy Action" shall have the meaning assigned to such
term in Section 4.1 hereof.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of
I the Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be
amended from time to time.
"Certificate" shall mean a certificate evidencing the
beneficial interest of a Certificateholder in the Trust, substantially in the
form attached hereto as Exhibit B-1.
"Certificate Distribution Account" shall have the meaning
assigned to such term in Section 5.1.
"Certificate of Trust" shall mean the Certificate of Trust in
the form of Exhibit A to be filed for the Trust pursuant to Section 3810(a) of
the Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.4.
"Certificateholder" or "Holder" shall mean a Person in whose
name a Certificate is registered.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
Rodney Square North, 1100 N. Market Street, Wilmington, Delaware 19890; or at
such other address in the State of Delaware as the Owner Trustee may designate
by notice to the Owners and the Depositor, or the principal corporate trust
office of any successor Owner Trustee (the address (which shall be in the State
of Delaware) of which the successor owner trustee will notify the Owners, the
Holders and the Depositor).
"Depositor" shall mean IMC Securities, Inc., a Delaware
corporation.
"Expenses" shall have the meaning assigned to such term in
Section 8.2.
"Indemnification Agreement" shall mean the Indemnification
Agreement dated as of December 2, 1998, among the Note Insurer, the Seller, the
Depositor, the Issuer and PaineWebber Incorporated.
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"Indentures" shall mean the Series 1998-7A Indenture and the
Series 1998-7B Indenture.
"Indenture Trustee" means The Chase Manhattan Bank, as
Indenture Trustee under the Indentures.
"Insurance Agreement" shall mean the Insurance and Indemnity
Agreement, dated as of December 1, 1998, among the Depositor, the Seller, the
Servicer, the Issuer and the Note Insurer.
"Issuer" shall mean IMC Home Equity Loan Owner Trust 1998-7,
the Delaware business trust created pursuant to this Agreement.
"Non-permitted Foreign Holder" shall have the meaning set
forth in Section 3.10.
"Non-U.S. Person" shall mean an individual, corporation,
partnership or other person other than a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, or an
estate or trust that is subject to U.S. federal income tax regardless of the
source of its income.
"Note Insurer" shall mean Financial Security Assurance Inc.
and its successors and assigns.
"Operative Documents" shall mean this Agreement, the Notes,
the Certificates, the Custodial Agreement, the Indentures, the Insurance
Agreement, the Indemnification Agreement, the Sale and Servicing Agreement and
the other documents and certificates delivered in connection therewith.
"Owner" shall mean each holder of a Note.
"Owner Trust Estate" shall mean the Trust Estate (as defined
in the Indenture), including the contribution of $1 referred to in Section 2.5
hereof.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware corporation, not in its individual capacity but solely as owner trustee
under this Agreement, and any successor owner trustee hereunder.
"Owner Trustee Fee" shall mean the fees payable to the Owner
Trustee for its services as owner trustee of the Trust, as provided in the fee
agreement between the Owner Trustee and the Seller.
"Percentage Interest" shall mean with respect to each
Certificate, the percentage portion of all of the Certificates evidenced thereby
as stated on the face of such Certificate.
"Prospective Holder" shall have the meaning set forth in
Section 3.10(a).
"Rating Agency Condition" means, with respect to any action to
which a Rating Agency Condition applies, that each Rating Agency shall have been
given 10 days (or such shorter period as is acceptable to each Rating Agency)
prior notice thereof and that each of the Rating Agencies shall have notified
the Seller, the Servicer, the Note Insurer, the Owner Trustee and the Issuer in
writing that such action will not result in a reduction or withdrawal of the
then current rating of a Series of Notes, without taking into account the Note
Insurance Policy.
"Record Date" shall mean as to each Payment Date the last day
of the calendar month immediately preceding the calendar month in which such
Payment Date occurs, whether or not such day is a Business Day.
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"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement dated as of the date hereof, among the Issuer, the
Depositor, the Seller, the Servicer and the Indenture Trustee.
"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Seller" shall mean IMC Mortgage Company, a Florida
corporation.
"Series 1998-7A Indenture" shall mean the Indenture, dated as
of December 1, 1998, between the Issuer and the Indenture Trustee relating to
the IMC Home Equity Loan Owner Trust 1998-7 Home Equity Loan Asset Backed Notes,
Series 1998-7A.
"Series 1998-7B Indenture" shall mean the Indenture, dated as
of December 1, 1998, between the Issuer and the Indenture Trustee relating to
the IMC Home Equity Loan Owner Trust 1998-7 Home Equity Loan Asset Backed Notes,
Series 1998-7B.
"Servicer" shall mean Ocwen Federal Bank FSB, a federal
savings bank.
"Treasury Regulations" shall mean regulations, including
proposed or temporary regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Paying Agent" shall mean The Chase Manhattan Bank or
any successor in interest thereto or any other paying agent or co-paying agent
appointed pursuant to Section 3.9 and authorized by the Issuer to make payments
to and distributions from the Certificate Distribution Account, including
payment of principal of or interest on the Certificates on behalf of the Issuer.
SECTION 1.2 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined
herein have the meanings assigned to them in the Sale and Servicing Agreement
or, if not defined therein, in the Indentures.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
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(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as "IMC Home
Equity Loan Owner Trust 1998-7", in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in Delaware
as the Owner Trustee may designate by written notice to the Certificateholders,
the Note Insurer, the Owners and the Depositor.
SECTION 2.3 Purpose and Powers. The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indentures and the
Certificates pursuant to this Agreement and to sell the Notes and
Certificates;
(ii) with the proceeds of the sale of the Notes and the
Certificates, to pay the organizational, start-up and transactional
expenses of the Trust and to pay the balance to the Depositor and the
Seller, as their interests may appear pursuant to the Sale and
Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and
convey the Owner Trust Estate pursuant to the terms of the Indentures
and to hold, manage and distribute to the Certificateholders pursuant
to the terms of the Sale and Servicing Agreement any portion of the
Owner Trust Estate released from the lien of, and remitted to the Trust
pursuant to, the Indentures;
(iv) to enter into and perform its obligations under the
Operative Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Operative Documents, to
engage in such other activities as may be required in connection with
conservation of the assets of the Trust and the making of distributions
to the Certificateholders and the Owners of the Notes.
The Trust is hereby authorized to engage in the foregoing activities
and shall not engage in any activity other than in connection with the foregoing
or other than as required or authorized by the terms of this Agreement or the
Operative Documents.
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SECTION 2.4 Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein. The Owner Trustee
hereby accepts its appointment subject to the terms and conditions hereof.
SECTION 2.5 Initial Capital Contribution of the Owner Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution which shall constitute the initial Owner Trust Estate and
shall be deposited in the Certificate Distribution Account. The Depositor or the
Seller shall pay the organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Operative Documents. It is the
intention of the parties hereto that the Trust shall constitute a business trust
under the Business Trust Statute and that this Agreement shall constitute the
governing instrument of such business trust. It is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Trust shall not be treated as (i) an association subject
separately to taxation as a corporation, (ii) a "publicly traded partnership" as
defined in Treasury Regulation Section 1.7704-1 or (iii) a "taxable mortgage
pool" as defined in Section 7701(i) of the Code, and that each Series of Notes
shall be debt, and the provisions of this Trust Agreement shall be interpreted
to further this intention. Except as otherwise provided in this Trust Agreement,
the rights of the Certificateholders will be those of equity owners of the
Trust. Effective as of the date hereof, the Owner Trustee shall have the rights,
powers and duties set forth herein and in the Business Trust Statute with
respect to accomplishing the purposes of the Trust. The Owner Trustee shall file
the Certificate of Trust pursuant to the Business Trust Statute with the
Secretary of State.
SECTION 2.7 Liability of the Holders. No Certificateholder shall have
any personal liability for any liability or obligation of the Trust. The
Certificates shall be fully paid and nonassessable.
SECTION 2.8. Title to Trust Property.
(a) Subject to the Indentures, legal title to all of the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
(b) The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. No transfer by operation of law or otherwise of
any interest of the Certificateholders shall operate to terminate this Agreement
or the trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of any part of the Owner Trust Estate.
SECTION 2.9 Situs of Trust. The Trust shall be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments shall be received by
the Trust only in Delaware or New York, and payments will be made by the Trust
only from Delaware or New York. The only office of the Trust shall be the
Corporate Trust Office in Delaware.
SECTION 2.10 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee and the Note
Insurer that:
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(a) The Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such
business is presently conducted.
(b) The Depositor is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such
qualifications.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the property to be sold and
assigned to and deposited with the Trust, and the Depositor has duly
authorized such sale and assignment to the Trust by all necessary
corporate action; and the execution, delivery and performance of this
Agreement have been duly authorized by the Depositor by all necessary
corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not
conflict with, result in any breach of any of the terms and provisions
of or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or by-laws of the Depositor, or
any indenture, agreement or other instrument to which the Depositor is
a party or by which it is bound; nor result in the creation or
imposition of any lien upon any of its properties pursuant to the terms
of any such indenture, agreement or other instrument (other than
pursuant to the Operative Documents); nor violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or any of its
properties.
(e) There are no proceedings or investigations pending or
notice of which has been received in writing before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or
ruling that might materially and adversely affect the performance by
the Depositor of its obligations under, or the validity or
enforceability of, this Agreement.
(f) The representations and warranties of the Depositor in
Section 2.01 of the Sale and Servicing Agreement are true and correct.
(g) The Trust is not required to register as an investment
company under the Investment Company Act and is not under the control
of a Person required to so register.
SECTION 2.11 Federal Income Tax Allocations. Net income of the Trust
for any month, as determined for Federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof), shall
be allocated to the Certificateholders, pro rata.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.5 and until the
issuance of the Certificates, the Depositor shall be the sole owner of the
Trust.
SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be issued without a principal
amount. The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized signatory of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust shall be valid, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
(b) The Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders) all as determined by the authorized signatory
of the Owner Trustee or the Owner Trustee's authenticating agent executing such
Certificates, as evidenced by their execution of such Certificates.
(c) A transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder, upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.4.
SECTION 3.3 Execution, Authentication and Delivery. Concurrently with
the initial sale of the Home Equity Loans by the Depositor to the Trust pursuant
to the Sale and Servicing Agreement, the Owner Trustee shall execute, or cause
its authenticating agent to execute the Certificates representing 100% of the
Percentage Interests of the Trust to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Depositor,
signed by an Authorized Officer of the Depositor, without further corporate
action by the Depositor. The Certificates shall be initially registered in the
name of IMC Mortgage Company. The Trust shall not issue any other Certificate,
except to the Depositor, without the prior written consent of the Note Insurer,
provided, however, that such consent shall not be unreasonably withheld. No
Certificate shall entitle its Holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit B,
executed by the Owner Trustee, by manual or facsimile signature. Such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
SECTION 3.4 Registration; Registration of Transfer and Exchange of
Certificates.
The Certificate Registrar shall cause to be kept at its office or
agency in New York, New York, or at its designated agent, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, it shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon any resignation of a Certificate
Registrar, the Owner Trustee shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of the Certificate Registrar.
The Chase Manhattan Bank shall be the initial Certificate Registrar.
Subject to Section 3.10, upon surrender for registration of transfer of
any Certificate at the office or agency of the Owner Trustee maintained pursuant
to Section 3.8, the Owner Trustee shall execute, and the Certificate Registrar
shall authenticate and deliver in the name of the designated transferee or
transferees,
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a new Certificate or Certificates of the same Percentage Interest and dated the
date of authentication by the Certificate Registrar.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of a like aggregate Percentage Interest, upon surrender of
the Certificates to be exchanged at such office. Whenever any Certificates are
so surrendered for exchange, the Owner Trustee shall execute and deliver to the
Certificate Registrar who shall authenticate the Certificates which the
Certificateholder making the exchange is entitled to receive.
No service charge shall be made for any registration of transfer or
exchange of 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 Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be marked "canceled" by the Certificate Registrar.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of Certificates for a period of 15 days preceding the due
date for any payment with respect to the Certificates.
SECTION 3.5 Mutilated; Destroyed; Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Certificate Registrar, the Owner Trustee and the Trust
such security or indemnity as may be required by them to hold each of them
harmless, then, in the absence of notice to the Certificate Registrar or the
Owner Trustee that such Certificate has been acquired by a bona fide purchaser,
the Owner Trustee shall execute on behalf of the Trust and the Certificate
Registrar shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a replacement Certificate of a
like Percentage Interest; provided, however, that if any such destroyed, lost or
stolen Certificate, but not a mutilated Certificate, shall have become or within
seven days shall be due and payable, then instead of issuing a replacement
Certificate the Owner Trustee may pay such destroyed, lost or stolen Certificate
when so due or payable.
(b) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee or the Certificate
Registrar may require the payment by the Holder of such Certificate of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Owner Trustee and the Certificate Registrar) connected
therewith.
(c) Any duplicate Certificate issued pursuant to this Section
3.5 in replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Trust, whether
or not the mutilated, destroyed, lost or stolen Certificate shall be found at
any time or be enforced by anyone, and shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other Certificates
duly issued hereunder.
(d) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.6 Persons Deemed Holders. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any Trust Paying Agent may treat the Person in whose name any
Certificate shall be registered in the Certificate Registrar as the owner of
such
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Certificate for the purpose of receiving distributions pursuant to Article V and
for all other purposes whatsoever, and neither the Owner Trustee, nor the
Certificate Registrar nor the Trust Paying Agent shall be affected by any notice
to the contrary.
SECTION 3.7 Access to List of Holders' Names and Addresses. The
Certificate Registrar shall furnish or cause to be furnished to the Servicer and
the Depositor, within 15 days after receipt by the Certificate Registrar of a
request therefor from the Servicer or the Depositor in writing, a list, in such
form as the Servicer or the Depositor may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. If three
or more Certificateholders or one or more Holders of Certificates together
evidencing a Percentage Interest totaling not less than 25% apply in writing to
the Certificate Registrar, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Certificate Registrar shall, within five Business Days after
the receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed not to hold any of the Servicer, the Depositor, the Certificate
Registrar or the Owner Trustee accountable by reason of the disclosure of its
name and address, regardless of the source from which information was derived.
SECTION 3.8 Maintenance of Office For Surrenders. The Certificate
Registrar shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange. The
Certificate Registrar initially designates the Corporate Trust Office as its
principal office for such purposes. The Certificate Registrar shall give prompt
written notice to the Depositor and to the Certificateholders and Owners of any
change in the location of the Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Trust Paying Agent. The Owner Trustee hereby
appoints The Chase Manhattan Bank as the Trust Paying Agent under this
Agreement. The Trust Paying Agent shall make distributions to Certificateholders
from the Certificate Distribution Account pursuant to Section 5.2(a) and shall
report the amounts of such distributions to the Owner Trustee and the Servicer.
The Trust Paying Agent shall have the revocable power to withdraw funds from the
Certificate Distribution Account for the purpose of making the distributions
referred to above. The Owner Trustee may revoke such power and remove the Trust
Paying Agent if the Owner Trustee determines in its sole discretion that the
Trust Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. If The Chase Manhattan Bank shall no longer
be the Trust Paying Agent, the Owner Trustee shall appoint a successor to act as
Trust Paying Agent (which shall be a bank or trust company acceptable to the
Depositor, the Seller, the Note Insurer and the Rating Agencies). The Owner
Trustee shall cause such successor Trust Paying Agent or any additional Trust
Paying Agent appointed by the Owner Trustee to execute and deliver to the Owner
Trustee an instrument in which such successor Trust Paying Agent or additional
Trust Paying Agent shall agree with the Owner Trustee that as Trust Paying
Agent, such successor Trust Paying Agent or additional Trust Paying Agent shall
hold all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums shall
be paid to such Holders. The Trust Paying Agent shall return all unclaimed funds
to the Trust and upon removal of a Trust Paying Agent such Trust Paying Agent
shall also return all funds in its possession to the Trust. The provisions of
Article VI shall apply to the Owner Trustee also in its role as Trust Paying
Agent, for so long as the Owner Trustee shall act as Trust Paying Agent and, to
the extent applicable, to any other Trust Paying Agent (including The Chase
Manhattan Bank) appointed hereunder. Any reference in this Agreement to the
Trust Paying Agent shall include any co-paying agent unless the context requires
otherwise.
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SECTION 3.10 Restriction on Transfers of Certificate.
(a) Each prospective purchaser and any subsequent transferee
of a Certificate (each, a "Prospective Holder"), other than the Depositor or the
Seller, shall represent and warrant, in writing, to the Owner Trustee and the
Certificate Registrar and any of their respective successors that:
(i) Such Person is one of the following: (A) an
"institutional accredited investor" (an entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act of 1933, as amended (the
"Securities Act")) and has such knowledge and experience in
financial and business matters as to be capable of evaluating
the merits and risks of investment in the Certificate, and the
Transferee is acquiring the Certificate for its own account or
for one or more institutional accredited investors for whom it
is authorized to act, (B) a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act; the Transferee
is aware that the Transferor may be relying on the exemption
from the registration requirements of the Securities Act
provided by Rule 144A; and the Transferee is acquiring the
Certificate for its own account or for the account of one or
more qualified institutional buyers for whom it is authorized
to act or (C) a Person involved in the organization or
operation of the Trust or an affiliate of such Person within
the meaning of Rule 3a-7 of the Investment Company Act of
1940, as amended (including, but not limited to, the Depositor
or the Seller).
(ii) Such Person understands that the Certificate has
not been and will not be registered under the Securities Act
and may be offered, sold, pledged or otherwise transferred
only to a person whom the seller reasonably believes is (A) a
qualified institutional buyer or (B) a Person involved in the
organization or operation of the Trust or an affiliate of such
Person, in a transaction meeting the requirements of Rule 144A
under the Securities Act and in accordance with any applicable
securities laws of any state of the United States.
(iii) Such Person understands that the Certificate
bears a legend to the following effect:
"THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS.
THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY
OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING
PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) AN
"INSTITUTIONAL ACCREDITED INVESTOR" AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE ACT, (II) A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION
THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE
144A OR (III) A PERSON INVOLVED IN THE ORGANIZATION
OR OPERATION OF THE TRUST OR AN AFFILIATE OF A PERSON
DESCRIBED IN (II) WITHIN THE MEANING OF RULE 3a-7 OF
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED
(INCLUDING, BUT NOT LIMITED TO, IMC MORTGAGE COMPANY
AND IMC SECURITIES, INC.) IN A TRANSACTION THAT IS
REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS.
NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE
UNDER THE ACT OR ANY STATE SECURITIES LAWS."
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(b) Each Prospective Holder, other than the Depositor or the
Seller, shall either:
(i) represent and warrant, in writing, to the Owner
Trustee and the Certificate Registrar and any of their
respective successors that (1) the Prospective Holder 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 a "plan" within the meaning of Section
4975(e)(1) of the Code (any such plan or employee benefit
plan, a "Plan") and is not directly or indirectly purchasing
such Certificate on behalf of, as investment manager of, as
named fiduciary of, as trustee of, or with assets of a Plan,
or (2) either (I) the Prospective Holder is acquiring such
Certificate for its own account and no part of the assets used
to acquire such Certificate constitutes assets of a Plan, or
(II) the source of funds to be used to acquire such
Certificate is an "insurance company general account," within
the meaning of Prohibited Transaction Class Exemption 95-60,
60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption"), and
there is no Plan with respect to which the amount of such
general account's reserves for the contract(s) held by or on
behalf of such Plan (determined under Section 807(d) of the
Code), together with the amount of the reserves of the
contract(s) held by or on behalf of any other Plans
(determined under section 807(d) of the Code) maintained by
the same employer (or an affiliate thereof as defined in
Section V(a)(1) of the Exemption) or by the same employee
organization, exceed 10% of the total of all liabilities of
such general account; or
(ii) furnish to the Owner Trustee and the Certificate
Registrar and any of their respective successors an opinion of counsel
acceptable to such persons that (A) the proposed issuance or transfer
of the Certificate to such Prospective Holder will not cause any assets
of the Trust to be deemed assets of a Plan, or (B) the proposed
issuance or transfer of the Certificate will not cause the Owner
Trustee or the Certificate Registrar or any of their respective
successors to be a fiduciary of a Plan within the meaning of Section
3(21) of ERISA and will not give rise to a transaction described in
Section 406 of ERISA or Section 4975(c)(1) of the Code for which a
statutory or administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective
Holder agrees and acknowledges that no legal or beneficial interest in all or
any portion of any Certificate may be transferred directly or indirectly to (i)
an entity that holds residual securities as nominee to facilitate the clearance
and settlement of such securities through electronic book-entry changes in
accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an
individual, corporation, partnership or other person unless such transferee is
not a Non-U.S. Person (any such person being referred to herein as a
"Non-permitted Foreign Holder"), and any such purported transfer shall be void
and have no effect.
(d) The Owner Trustee shall not execute, and shall not
countersign and deliver, a Certificate in connection with any transfer thereof
unless the transferor shall have provided to the Owner Trustee an IRS Form W-9
and a certificate, signed by the transferee, that it is not a Book-Entry Nominee
or a Non-permitted Foreign Holder, which certificate shall contain the consent
of the transferee to any amendments of this Agreement as may be required to
effectuate further the foregoing restrictions on transfer of the Certificate to
Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the
transferee that it will not transfer a Certificate without providing to the
Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring
to the restrictions contained in paragraph (b) above.
(f) No offer, sale, transfer, pledge, hypothecation or other
disposition (including any pledge or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any entity unless, prior to
such disposition, (i) the Note Insurer has given its prior written consent to
the offer,
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sale, transfer, pledge, hypothecation or other disposition; provided, however,
that such consent shall not be unreasonably withheld and (ii) the Prospective
Holder delivers to the Owner Trustee and the Certificate Registrar an opinion of
counsel, rendered by a law firm generally recognized to be qualified to opine
concerning the tax aspects of asset securitization, to the effect that such
transfer (including any disposition permitted following any default under any
pledge or repurchase transaction will not cause the Trust to be (i) treated as
an association taxable as a corporation for federal income tax purposes, (ii)
taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or
(iii) taxable as a "publicly traded partnership" as defined in Treasury
Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of
this paragraph shall not apply to the initial transfer of the Certificates to
the Seller or the Depositor.
SECTION 3.11 Duties of the Certificate Registrar and Trust Paying Agent
The duties and obligations of the Certificate Registrar and Trust
Paying Agent shall be determined solely by the express provisions of this
Agreement. The Certificate Registrar and Trust Paying Agent shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement or as set forth in a written amendment to this
Agreement executed by the parties hereto or their successors or assigns. Without
limiting the generality of the foregoing, the Certificate Registrar and Trust
Paying Agent:
(a) shall use the same degree of care and skill as is
reasonably expected of financial institutions acting in comparable
capacities;
(b) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value,
genuineness, ownership or transferability of any Certificates, the
Notes or Home Equity Loans represented thereby, and will not be
required to and will not make any representations as to the validity,
value or genuineness of the Certificates, the Notes or the Home Equity
Loans;
(c) shall not be obligated to take any legal action hereunder
that might in its judgment involve any expense or liability unless it
has been furnished with reasonable indemnity;
(d) may rely on and shall be protected in acting in good faith
upon any certificate, instrument, opinion, notice, letter, telegram or
other document, or any security, delivered to it and in good faith
believed by it to be genuine and to have been signed by the proper
party or parties;
(e) may rely on and shall be protected in acting in good faith
upon the written instructions of the Owner Trustee, the Seller and the
Issuer, as indicated herein;
(f) may consult counsel satisfactory to it and the opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered, or omitted by it hereunder in
good faith and in furtherance of its duties hereunder, in accordance
with the opinion of such counsel;
(g) shall not be liable for any error of judgment, or for any
act done or step taken or omitted by it, in good faith, or for any
mistake of fact or law, or for anything that it may do or refrain from
doing in connection therewith, except in the case of negligent
performance or omission; and
(h) may execute any of the powers hereunder or perform any
duties hereunder either directly or through agents or attorneys.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Owners with Respect to Certain Matters. The
Owner Trustee shall not take action with respect to the following matters,
unless (i) the Owner Trustee shall have notified the Certificateholders and the
Note Insurer in writing of the proposed action at least 30 days before the
taking of such action, and (ii) neither the Certificateholders nor the Note
Insurer shall have notified the Owner Trustee in writing prior to the 30th day
after such notice is given that such Certificateholders or the Note Insurer have
withheld consent or provided alternative direction (provided that any directions
by the Certificateholders shall require the prior consent of the Note Insurer):
(a) the initiation of any claim or lawsuit by the Trust
(except claims and law suits brought in connection with the collection of the
Home Equity Loans) or the compromise of any action, claim or lawsuit brought by
or against the Trust (except claims and law suits brought in connection with the
collection of the Home Equity Loans);
(b) the election by the Trust to file an amendment to the
Certificate of Trust, (except to the extent such amendment is required under the
Business Trust Statute);
(c) the amendment or other change to this Agreement or any
Operative Documents in circumstances where the consent of any Owner of a Note or
the Note Insurer is required;
(d) the amendment or other change to this Agreement or any
Operative Documents in circumstances where the consent of any Owner of a Note or
the Note Insurer is not required and such amendment materially adversely affects
the interest of the Certificateholders;
(e) the appointment pursuant to an Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or, pursuant to this
Agreement, of a successor Certificate Registrar or Trust Paying Agent, or the
consent to the assignment by the Note Registrar, Paying Agent or Indenture
Trustee, Certificate Registrar or Trust Paying Agent of its obligations under
the Indentures or this Agreement, as applicable;
(f) the consent to the calling or waiver of any default of any
Operative Document;
(g) the consent to the assignment of the Indenture Trustee or
Servicer of their respective obligations under the Operative Document;
(h) except as provided in Article IX hereof, dissolve,
terminate or liquidate the Trust in whole or in part;
(i) merge or consolidate the Trust with or into any other
entity, or convey or transfer all or substantially all of the Trust's assets to
any other entity;
(j) cause the Trust to incur, assume or guaranty any
indebtedness other than as set forth in this Agreement;
(k) do any act that conflicts with any other Operative
Document;
(l) do any act which would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.3 hereof;
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(m) confess a judgment against the Trust;
(n) possess Trust assets, or assign the Trust's right to
property, for other than a Trust purpose;
(o) cause the Trust to lend any funds to any entity; or
(p) change the Trust's purpose and powers from those set forth
in this Agreement.
In addition the Trust shall not commingle its assets with those of any
other entity. The Trust shall maintain its financial and accounting books and
records separate from those of any other entity. Except as expressly set forth
herein, the Trust shall pay its indebtedness and any operating expenses from its
own funds, and the Trust shall not pay the indebtedness, operating expenses or
liabilities of any other entity. The Trust shall maintain appropriate minutes or
other records of all appropriate actions and shall maintain its office separate
from the offices of the Depositor, the Seller and the Servicer.
The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders with the consent of the Note Insurer, and to the
extent otherwise consistent with the Operative Documents, to (i) remove or
replace the Servicer or the Indenture Trustee, (ii) institute proceedings to
have the Trust declared or adjudicated a bankruptcy or insolvent, (iii) consent
to the institution of bankruptcy or insolvency proceedings against the Trust,
(iv) file a petition or consent to a petition seeking reorganization or relief
on behalf of the Trust under any applicable federal or state law relating to
bankruptcy, (v) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or any similar official) of the Trust or a substantial
portion of the property of the Trust, (vi) make any assignment for the benefit
of the Trust's creditors, (vii) cause the Trust to admit in writing its
inability to pay its debts generally as they become due or (viii) take any
action, or cause the Trust to take any action, in furtherance of any of the
foregoing (any of the above, a "Bankruptcy Action"). So long as an Indenture
remains in effect and no Note Insurer Default exists, no Certificateholder shall
have the power to take, and shall not take, any Bankruptcy Action with respect
to the Trust or direct the Owner Trustee to take any Bankruptcy Action with
respect to the Trust.
SECTION 4.2 Action by Holders with Respect to Certain Matters. The
Owner Trustee shall not have the power to remove the Servicer under the Sale and
Servicing Agreement.
SECTION 4.3 Action by Holders with Respect to Bankruptcy. Neither the
Owner Trustee nor any Certificateholder shall have the power to commence a
voluntary proceeding in bankruptcy relating to the Trust without the consent and
approval of (i) the Note Insurer, (ii) the unanimous prior approval of all
Certificateholders and Owners of the Notes, (iii) the Owner Trustee and (iv) the
Indenture Trustee and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent. This paragraph shall survive
for one year and one day following termination of this Agreement.
SECTION 4.4 Restrictions on Holders' Power. The Certificateholders
shall not direct the Owner Trustee to take or refrain from taking any action if
such action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the Operative Documents or would be
contrary to Section 2.3, nor shall the Owner Trustee be obligated to follow any
such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein any
action that may be taken or consent that may be given or withheld or written
notice delivered by the Certificateholders under this Agreement may be taken by
Holders of Certificates representing not less than a majority of the
Certificates.
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ARTICLE V
APPLICATION OF OWNER TRUST ESTATE; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account. The
Owner Trustee shall cause the Servicer, for the benefit of the
Certificateholders, to establish and maintain with The Chase Manhattan Bank for
the benefit of the Owner Trustee a Trust Account which, while the Trust Paying
Agent holds such Account, shall be entitled "CERTIFICATE DISTRIBUTION ACCOUNT,
THE CHASE MANHATTAN BANK AS TRUST PAYING AGENT, IN TRUST FOR THE IMC HOME EQUITY
LOAN ASSET BACKED CERTIFICATES, SERIES 1998-7." Funds shall be deposited in the
Certificate Distribution Account as required by the Indentures, or following
satisfaction or release of an Indenture, by the Sale and Servicing Agreement.
All of the right, title and interest of the Owner Trustee in all funds
on deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof shall be held for the benefit of the Certificateholders. Except
as otherwise expressly provided herein or in the Sale and Servicing Agreement,
the Certificate Distribution Account shall be under the sole dominion and
control of the Owner Trustee for the benefit of the Certificateholders.
SECTION 5.2 Application of Trust Funds.
(a) On each Payment Date, the Trust Paying Agent shall distribute to
the Certificateholders, pro rata, from amounts on deposit in the Certificate
Distribution Account the distributions as provided in Section 3.03(b)(xi) of the
Sale and Servicing Agreement with respect to such Payment Date.
(b) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Trust Paying Agent is hereby authorized and directed to retain
from amounts otherwise distributable to the Certificateholders sufficient funds
for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Trust Paying Agent from contesting any such
tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated as
cash distributed to such Holder at the time it is withheld by the Trust Paying
Agent and remitted to the appropriate taxing authority. If there is a
possibility that withholding tax is payable with respect to a distribution (such
as a distribution to a non-U.S. Holder), the Trust Paying Agent may in its sole
discretion withhold such amounts in accordance with this paragraph (b). In the
event that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Trust Paying Agent shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Trust Paying Agent for any out-of-pocket expenses incurred.
(c) Distributions to Certificateholders shall be subordinated to the
creditors of the Trust, including the Owners of each Series of Notes and the
Note Insurer.
SECTION 5.3 Method of Payment. Distributions required to be made to
Certificateholders on any Payment Date shall be made to each Certificateholder
of record on the immediately preceding Record Date either by wire transfer, in
immediately available funds, to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Payment Date, or,
if not, by check mailed to such Certificateholder at the address of such
Certificateholder appearing in the Certificate Register.
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SECTION 5.4 Segregation of Moneys; No Interest. Subject to Sections 5.1
and 5.2, moneys received by the Trust Paying Agent hereunder and deposited into
the Certificate Distribution Account will be segregated except to the extent
required otherwise by law and shall be invested in Eligible Investments maturing
no later than one Business Day prior to the related Payment Date at the
direction of the Depositor (with the consent of the Seller). The Trust Paying
Agent shall not be liable for payment of any interest or losses in respect of
such moneys. Investment gains shall be for the account of and paid to the
Certificateholders.
SECTION 5.5 Accounting and Reports to the Certificateholders, the
Internal Revenue Service and Others. The Certificate Registrar shall (a)
maintain (or cause to be maintained) the books of the Trust on a calendar year
basis on the accrual method of accounting, and such books shall be maintained
separately from those of any other entity and reflect the separate interest of
the Trust, (b) deliver to each Certificateholder, as may be required by the Code
and applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable such Certificateholder to prepare its federal
and state income tax returns, (c) file such tax returns relating to the Trust
(including a partnership information return, IRS Form 1065), and make such
elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Trust's characterization as a partnership for federal income tax
purposes, (d) cause such tax returns to be signed in the manner required by law
and (e) collect or cause to be collected any withholding tax required to be
withheld (as certified by the Seller) with respect to income or distributions to
Certificateholders. The Certificate Registrar shall elect under Section 1278 of
the Code to include in income currently any market discount that accrues with
respect to the Home Equity Loans. The Certificate Registrar shall not make the
election provided under Section 754 of the Code.
SECTION 5.6 Signature on Returns; Tax Matters Partner.
(a) The Certificate Registrar shall sign on behalf of the
Trust the tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall be
signed by the Depositor.
(b) The Depositor shall be designated the "tax matters
partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code and
applicable Treasury Regulations.
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ARTICLE VI
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
SECTION 6.1 General Authority. The Owner Trustee is authorized and
directed to execute and deliver, or cause to be executed and delivered, the
Certificates and the Operative Documents to which the Trust is to be a party and
each certificate or other document attached as an exhibit to or contemplated by
the Operative Documents to which the Trust is to be a party and any amendment or
other agreement or instrument described in Article III, in each case, in such
form as the Depositor shall approve, as evidenced conclusively by the Owner
Trustee's execution thereof, and, on behalf of the Trust, to direct the
Indenture Trustee to authenticate and deliver the Series 1998-7A Notes in the
aggregate principal amount of $529,000,000 and the Series 1998-7B Notes in the
aggregate principal amount of $71,000,000. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust, pursuant to the Operative Documents.
SECTION 6.2. General Duties. It shall be the duty of the Owner Trustee:
(a) to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the Operative
Documents to which the Trust is a party and to administer the Trust in the
interest of the Certificateholders, and in accordance with the provisions of
this Agreement; and
(b) to obtain and preserve, the Trust's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indentures, the
Notes, and each other instrument and agreement included in the Owner Trust
Estate.
SECTION 6.3 Action upon Instruction by Owners.
(a) Subject to Article IV, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the Trust, but
only to the extent consistent with the limited purposes of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not
be required to take any action hereunder or under any Operative Document if the
Owner Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of any Operative Document or
is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Operative Document, or is unsure as to the application, intent,
interpretation or meaning of any provision of this agreement or the Operative
Documents, the Owner Trustee shall promptly give notice (in such form as shall
be appropriate under the circumstances) to the Note Insurer and the
Certificateholders requesting instruction as to the course of action to be
adopted, and, to the extent the Owner Trustee acts in good faith in accordance
with any such instruction received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instructions within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action which is consistent, in its view, with this
Agreement or the Operative Documents, and as it shall deem to be the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for any such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Operative Document or any
such provision is ambiguous as to its application, or
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is, or appears to be, in conflict with any other applicable provision, or in the
event that this Agreement permits any determination by the Owner Trustee or is
silent or is incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
may give notice (in such form as shall be appropriate under the circumstances)
to the Certificateholders requesting instruction and, to the extent that the
Owner Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Owner Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or the
Operative Documents, as it shall deem to be in the best interest of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement, the
Operative Documents or in Instructions. The Owner Trustee shall not have any
duty or obligation to manage, make any payment with respect to, register,
record, sell, dispose of, or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under, or in connection with,
any document contemplated hereby to which the Owner Trustee is a party, except
as expressly provided by the terms of this Agreement, any Operative Document or
in any document or written instruction received by the Owner Trustee pursuant to
Section 6.3; and no implied duties or obligations shall be read into this
Agreement or any Operative Document against the Owner Trustee. The Owner Trustee
shall have no responsibility for filing any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Securities and Exchange Commission filing for the Trust or
to record this Agreement or any Operative Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on any part of the Owner Trust
Estate that result from actions by, or claims against, the Owner Trustee that
are not related to the ownership or the administration of the Owner Trust
Estate.
SECTION 6.5 No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner Trust Estate except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Operative Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section 2.3
or (b) that, to the actual knowledge of the Owner Trustee, would result in the
Trust's becoming taxable as a corporation for Federal income tax purposes. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
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ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties. Except as otherwise
provided in this Article VII, in accepting the trusts hereby created Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Operative Document shall
look only to the assets of the Trust for payment or satisfaction thereof. The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the assets of the Trust upon the terms of the Operative
Documents and this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any Operative Document under any circumstances,
except (i) for its own gross negligent action, its own gross negligent failure
to act or its own willful misconduct or (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 7.3 and expressly made by
the Owner Trustee. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability of
any Home Equity Loan, or the perfection and priority of any security interest
created by any Home Equity Loan in any Property or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the assets
of the Trust or their ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Owners of the Notes under the
Indentures, including, without limitation: the existence, condition and
ownership of any Property; the existence and enforceability of any insurance
thereon; the existence and contents of any Home Equity Loan on any computer or
other record thereof; the validity of the assignment of any Home Equity Loan to
the Trust or of any intervening assignment; the completeness of any Home Equity
Loan; the performance or enforcement of any Home Equity Loan; the compliance by
the Depositor or the Servicer with any warranty or representation made under any
Operative Document or in any related document or the accuracy of any such
warranty or representation or any action of the Indenture Trustee, the Custodian
or the Servicer or any subservicer taken in the name of the Owner Trustee.
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Note Insurer or any Certificateholder;
(c) no provision of this Agreement or any Operative Document
shall require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any Operative Document, if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Operative Documents,
including the Pool I Note Principal Balance, the Pool II Note Principal Balance
and the interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of and makes no representation as to the validity or sufficiency of any
provision of this Agreement or for the due execution hereof by the Depositor or
for the form, character, genuineness, sufficiency, value or validity of any of
the Owner Trust Estate or for or in respect of the validity or sufficiency of
the Operative Documents, the Notes, the Certificates (other than the execution
thereof and the certificate of authentication on the Certificates, if executed
by the Owner Trustee) or of any Home Equity Loans or any related documents, and
the Owner
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Trustee shall in no event assume or incur any liability, duty or obligation to
any Owner of a Note or to any Certificateholder, other than as expressly
provided for herein and in the Operative Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Indenture Trustee, the Custodian, the Depositor, or the
Servicer under any of the Operative Documents or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations of the Trust
under this Agreement or the Operative Documents that are required to be
performed by the Indenture Trustee under the Indentures, the Custodian under the
Custodial Agreement or the Servicer under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement, the Underwriting Agreement or any Operative
Document, at the request, order or direction of any of the Note Insurer or any
of the Certificateholders, unless the Note Insurer or such Certificateholders
have offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any Operative Document
shall not be construed as a duty, and the Owner Trustee shall not be answerable
for other than its negligence or willful misconduct in the performance of any
such act;
(h) The Owner Trustee shall have no responsibility for filing
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare, execute or file any Securities and
Exchange Commission filing or tax return for the Trust or to record this
Agreement or any Operative Document.
SECTION 7.2 Furnishing of Documents. The Owner Trustee shall furnish
(a) to the Certificateholders, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Operative Documents, and (b) to the Note Insurer, copies
of any reports, notices, requests, demands, certificates, financial statements,
and any other instruments relating to the Trust, the Certificates or the Notes
in the possession of the Owner Trustee, that the Note Insurer shall request in
writing.
SECTION 7.3 Representations and Warranties of Owner Trustee. The
Wilmington Trust Company hereby represents and warrants to the Depositor, for
the benefit of the Certificateholders and the Note Insurer, that:
(a) It is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) It has full power, authority and legal right to execute,
deliver and perform its obligations under this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Agreement.
(c) The execution, delivery and performance by it of this
Agreement (i) shall not violate any provision of any law or regulation governing
the banking and trust powers of the Wilmington Trust Company or any order, writ,
judgment or decree of any court, arbitrator or governmental authority applicable
to the Wilmington Trust Company or any of its assets, (ii) shall not violate any
provision of the corporate charter or by-laws of Wilmington Trust Company, or
(iii) shall not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Trust pursuant to the provisions of
any mortgage, indenture, contract, agreement or other undertaking to which it is
a party, which violation, default or lien could reasonably be expected to have a
materially adverse effect on Wilmington Trust Company's performance or ability
to
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perform its duties as Owner Trustee under this Agreement or on the transactions
contemplated in this Agreement.
(d) This Agreement has been duly executed and delivered by
Wilmington Trust Company and constitutes the legal, valid and binding agreement
of Wilmington Trust Company, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar law affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(e) The Wilmington Trust Company is not in default with
respect to any order or decree of any court or any order, regulation or demand
of any Federal, state, municipal or governmental agency, which default might
have consequences that would materially and adversely affect the condition
(financial or other) or operations of the Wilmington Trust Company or its
properties or might have consequences that would materially adversely affect its
performance hereunder.
(f) No litigation is pending or, to the best of the Wilmington
Trust Company's knowledge, threatened against the Wilmington Trust Company which
would prohibit its entering into this Trust Agreement or performing its
obligations under this Trust Agreement.
SECTION 7.4 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, note or other document or paper believed by
it to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the Trust hereunder
and in the performance of its duties and obligations under this Agreement or the
Operative Documents, the Owner Trustee: (i) may act directly or through its
agents, attorneys, custodians or nominees, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians or
nominees if such agents, attorneys, custodians or nominees shall have been
selected by the Owner Trustee with reasonable care and (ii) may consult with
counsel, accountants and other skilled professionals to be selected with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any of the Operative Documents.
(c) In providing any certificates required of the Issuer
pursuant to an Indenture, the Owner Trustee may rely on an Officer's Certificate
of the Depositor in a form satisfactory to the Owner Trustee.
SECTION 7.5 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Indenture Trustee
and the Servicer in transactions in the same manner and with the same rights as
it would have if it were not the Owner Trustee.
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SECTION 7.6 Licenses. The Owner Trustee shall cause the Trust to use
its best efforts to obtain and maintain the effectiveness of any licenses
required in connection with this Agreement and the Operative Documents and the
transactions contemplated hereby and thereby until such time as the Trust shall
terminate in accordance with the terms hereof.
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ARTICLE VIII
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE AND ITS AGENTS
SECTION 8.1 Owner Trustee's Fee and Expenses. The Owner Trustee shall
receive from the Depositor as compensation for its services hereunder such fees
as have been separately agreed upon before the date hereof between the Depositor
and the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed
by the Depositor for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents, custodians,
nominees, representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and its duties
hereunder. The Owner Trustee Fee shall be paid to the Owner Trustee pursuant to
Section 3.03 of the Sale and Servicing Agreement
SECTION 8.2 Indemnification of the Owner Trustee. The Depositor shall
be liable as primary obligor and the Seller shall be liable as secondary obligor
pursuant to the Sale and Servicing Agreement for, and shall indemnify the Owner
Trustee and its successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at any
time be imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Operative Documents, the Owner Trust Estate, the administration of the Trust or
the action or inaction of the Owner Trustee hereunder, provided that:
(i) the Depositor shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from the Owner Trustee's willful misconduct, gross negligence or bad faith, as
specified in the fourth sentence of Section 7.1 or as a result of any inaccuracy
of a representation or warranty contained in Section 7.3 expressly made by the
Owner Trustee;
(ii) with respect to any such claim, the Indemnified Party
shall have given the Seller written notice thereof promptly after the
Indemnified Party shall have actual knowledge thereof;
(iii) while maintaining control over its own defense, the
Seller shall consult with the Indemnified Party in preparing such defense; and
(iv) notwithstanding anything in this Agreement to the
contrary, the Seller shall not be liable for settlement of any claim by an
Indemnified Party entered into without the prior consent of the Seller which
consent shall not be unreasonably withheld.
The indemnities contained in this Section shall survive the resignation
or termination of the Owner Trustee or the termination of this Agreement. In the
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section 8.2, the Owner Trustee's choice of legal counsel, if
other than the legal counsel retained by the Owner Trustee in connection with
the execution and delivery of this Agreement, shall be subject to the approval
of the Seller, which approval shall not be unreasonably withheld. In addition,
upon written notice to the Owner Trustee and with the consent of the Owner
Trustee which consent shall not be unreasonably withheld, the Seller has the
right to assume the defense of any claim, action or proceeding against the Owner
Trustee.
SECTION 8.3 Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article VIII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
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SECTION 8.4 Indemnification of the Certificate Registrar and Trust
Paying Agent.
(a) Neither the Certificate Registrar, the Trust Paying Agent nor any
of their respective directors, officers, agents or employees, shall be liable
for any action taken or omitted to be taken by it or them hereunder or in
connection herewith in good faith and believed by it or them to be within the
purview of this Agreement, except for its or their own gross negligence, lack of
good faith or willful misconduct. In no event shall the Certificate Registrar,
the Trust Paying Agent nor any of their respective directors, officers, agents
and employees be held liable for any special, indirect or consequential damages
resulting from any action taken or omitted to be taken by it or them hereunder
or in connection herewith even if advised of the possibility of such damages.
(b) The Depositor agrees to indemnify and hold the Certificate
Registrar, the Trust Paying Agent and their respective directors, officers,
agents and employees (each, a "Chase Indemnified Party") harmless against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including reasonably attorney's fees, that may be imposed on,
incurred by, or asserted against such Chase Indemnified Party in any action
taken or not taken by such Chase Indemnified Party hereunder unless such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements were imposed on, incurred by or asserted
against such Chase Indemnified Party because of the breach by such Chase
Indemnified Party of its obligations hereunder, which breach was caused by gross
negligence, lack of good faith or willful misconduct on the part of such Chase
Indemnified Party. The foregoing indemnification shall survive any termination
of this Agreement and the resignation or removal of the Certificate Registrar or
Trust Paying Agent.
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust
shall terminate and be of no further force or effect on the earlier of: (i) the
final distribution by the Indenture Trustee of all moneys or other property or
proceeds of the assets of the Trust in accordance with the terms of the
Indentures and (ii) the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy (the late ambassador of the
United States to the Court of St. James's). The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x) operate
to terminate this Agreement or the Trust, nor (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or the Owner Trust Estate or (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) The Certificates shall be subject to an early redemption
or termination at the option of the Holders of a majority of the Certificates,
and in certain instances the Note Insurer, in the manner and subject to the
provisions of Section 5.02 of the Sale and Servicing Agreement.
(c) Except as provided in paragraphs (a) and (b) of this
Section 9.1, none of the Depositor, the Servicer, the Note Insurer or any
Certificateholder shall be entitled to revoke or terminate the Trust.
(d) Notice of any termination of the Trust, specifying the
Payment Date upon which the Certificateholders shall surrender their
Certificates to the Owner Trustee for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to the Note Insurer,
the Rating Agencies and the Trust Paying Agent mailed within five Business Days
of receipt of notice of such termination, stating: (i) the Payment Date upon or
with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Owner
Trustee therein designated; (ii) the amount of any such final payment; and (iii)
that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Owner Trustee therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Trust Paying Agent at the time such notice is given to
Certificateholders. The Owner Trustee will give notice to the Trust Paying Agent
of each presentation and surrender of the Certificates and the Trust Paying
Agent shall cause to be distributed to Certificateholders amounts distributable
on such Payment Date pursuant to Section 5.03 of the Sale and Servicing
Agreement.
(e) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(d) of the Business Trust Statute.
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or state authorities; and having (or
having a parent which has) a rating of at least "Baa3" by Moody's and "A-1" by
Standard & Poor's and being acceptable to the Note Insurer. If such corporation
shall publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.2.
SECTION 10.2 Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving 30 days prior written notice thereof to the Depositor, the Seller, the
Indenture Trustee and the Note Insurer. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee
(acceptable to the Note Insurer) by written instrument, in duplicate, one copy
of which instrument shall be delivered to the resigning Owner Trustee and one
copy to the successor Owner Trustee. If no successor Owner Trustee shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Owner Trustee or the Note Insurer
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Indenture Trustee, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Note Insurer, or the Indenture Trustee
with the consent of the Note Insurer, may remove the Owner Trustee. If the
Indenture Trustee or the Note Insurer shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Note Insurer, or the
Servicer with the consent of the Note Insurer, shall promptly appoint a
successor Owner Trustee by written instrument in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee and payment of all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3, written approval by the Note Insurer and
payment of all fees and expenses owed to the outgoing Owner Trustee. The
Depositor shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies and the Note Insurer.
SECTION 10.3 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Depositor, the Indenture Trustee, the Note Insurer and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee (if acceptable to the Note
Insurer), without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Depositor and the
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predecessor Owner Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties, and
obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Depositor shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Owners, the Note
Insurer and the Rating Agencies. If the Depositor fails to mail such notice
within 10 days after acceptance of appointment by the successor Owner Trustee,
the successor Owner Trustee shall cause such notice to be mailed at the expense
of the Depositor.
SECTION 10.4 Merger or Consolidation of Owner Trustee. 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
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 10.1, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger or consolidation to the Note Insurer and each of the Rating
Agencies.
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Owner Trust Estate or any Property may at the time be
located, the Owner Trustee (with the consent of the Note Insurer) shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee and the Note Insurer to act as co-trustee,
jointly with the Owner Trustee, or as separate trustee or trustees, of all or
any part of the assets of the Trust, and to vest in such Person, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section, such powers, duties, obligations, rights and
trusts as the Note Insurer and the Owner Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 10.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.3.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be conferred
upon and exercised or performed by the Owner Trustee, and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to
act separately without the Owner Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
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(iii) the Owner Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Note Insurer.
(d) Any separate trustee or co-trustee may at any time appoint
the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments Without Consent of Certificateholders or Owners
of the Notes. This Agreement may be amended by the Depositor, and the Owner
Trustee without the consent of any of the Certificateholders (but with the prior
written consent of the Note Insurer and prior notice to each of the Rating
Agencies), to (i) cure any ambiguity, (ii) correct or supplement any provision
in this Agreement that may be defective or inconsistent with any other provision
in this Agreement, (iii) add or supplement any credit enhancement for the
benefit of the Owners of the Notes or the Certificateholders, (iv) add to the
covenants, restrictions or obligations of the Depositor or the Owner Trustee and
(v) add, change or eliminate any other provision of this Agreement in any manner
that shall not, adversely affect in any material respect the interests of the
Owners of the Notes or the Certificateholders. An amendment described above
shall be deemed not to adversely affect in any material respect the interests of
any Certificateholder or Owner of a Note if (i) an opinion of counsel is
obtained to such effect or (ii) the party requesting the amendment satisfies the
Rating Agency Condition with respect to such amendment.
SECTION 11.2 Amendments With Consent of Certificateholders. This
Agreement may be amended from time to time by the Depositor, and the Owner
Trustee with the consent of the Note Insurer and more than a majority in
Percentage Interests of the Certificates for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Home Equity Loans or distributions that shall be made
for the benefit of the Certificateholders or (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the Holders of
all of the Certificates then outstanding.
SECTION 11.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement
or consent pursuant to Section 11.1 or 11.2, the Owner Trustee shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder, the Indenture Trustee, the Note Insurer and each Rating
Agency.
(b) It shall not be necessary for the consent of the
Certificateholders, pursuant to Section 11.2 to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement or in
any other Operative Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
(d) Prior to the execution of any amendment to this Agreement
or the Certificate of Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
the execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 11.4 No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the assets of the
Owner Trust Estate solely by virtue of their status as
29
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Certificateholders. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest therein only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title, and interest of the Certificateholders to and in
their ownership interest in the assets of the Trust shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the assets of
the Trust.
SECTION 11.5 Limitations on Rights of Others. Except for Section 2.7,
the provisions of this Agreement are solely for the benefit of the Note Insurer,
the Owner Trustee, the Depositor, the Certificateholders and, to the extent
expressly provided herein, the Indenture Trustee and the Owners of the Notes,
and nothing in this Agreement (other than Section 2.7), whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the assets of the Trust or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.6 Notices.
(a) All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by overnight mail, certified mail or registered mail, postage
prepaid, to (i) in the case of the Servicer, Ocwen Federal Bank FSB, 1675 Palm
Beach Lakes Blvd., West Palm Beach, Florida 33401, Attention: Secretary (IMC
Home Equity Loan Owner Trust 1998-7), or such other addresses as may hereafter
be furnished to the Certificateholders in writing by the Servicer, (ii) in the
case of the Depositor, IMC Securities, Inc., 5901 East Fowler Avenue, Tampa,
Florida 33617-2362, Attention: Laurie Williams, or such other addresses as may
hereafter be furnished to the Certificateholders in writing by the Depositor,
(iii) in the case of the Owner Trustee, Wilmington Trust Company, Rodney Square
North, 1100 N. Market Street, Wilmington, Delaware 19890, Attention: IMC Home
Equity Loan Owner Trust 1998-7, (iv) in the case of the Certificateholders, as
set forth in the Certificate Register, (v) in the case of the Indenture Trustee,
The Chase Manhattan Bank, 450 West 33rd Street, New York, New York 10001,
Attention: IMC Home Equity Loan Owner Trust 1998-7, (vi) in the case of Moody's,
99 Church Street, New York, New York 10007, Attention: Home Equity Monitoring
Group, (vii) in the case of Standard & Poor's, 25 Broadway, New York, New York
10004, Attention: Residential Mortgage Group, and (viii) in the case of the Note
Insurer, Financial Security Assurance Inc., 350 Park Avenue, New York, New York
10022, Attention: IMC Home Equity Loan Owner Trust 1998-7. Any such notices
shall be deemed to be effective with respect to any party hereto upon the
receipt of such notice by such party, except that notices to the
Certificateholders shall be effective upon mailing or personal delivery.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.7 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 11.8 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 one and the same instrument.
SECTION 11.9 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee, the Note Insurer and each Certificateholder and
their respective successors and permitted assigns, all as herein provided. Any
30
<PAGE>
request, notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.10 No Petition Covenant. Notwithstanding any prior
termination of this Agreement, the Trust (or the Owner Trustee on behalf of the
Trust), the Depositor, each Certificateholder and the Indenture Trustee shall
not acquiesce, petition or otherwise invoke or cause the Trust to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining a case against the Depositor or the Trust under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Depositor or the Trust or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Depositor or the Trust.
SECTION 11.11 No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Servicer, the Owner Trustee, the Indenture
Trustee or any affiliate thereof and no recourse may be had against such parties
or their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the Operative Documents.
SECTION 11.12 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.13 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Integration. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
SECTION 11.15 Third-Party Beneficiary. The parties hereto acknowledge
that the Note Insurer is an express third party beneficiary hereof entitled to
enforce the provisions hereunder as if it were actually a party hereto. Nothing
in this section, however, shall be construed to mitigate in any way, the
fiduciary responsibilities of the Owner Trustee to the Certificateholders nor to
create a fiduciary responsibility of the Owner Trustee to the Note Insurer.
SECTION 11.16 Suspension and Termination of Note Insurer's Rights.
During the continuation of a Note Insurer Default, rights granted or reserved to
the Note Insurer hereunder shall vest instead in the Certificateholders;
provided that the Note Insurer shall be entitled to any distributions in
reimbursement of the Reimbursement Amount, and the Note Insurer shall retain
those rights under Section 11.1 to consent to any amendment of this Agreement.
At such time as either (i) both the Pool I Note Principal
Balance and the Pool II Note Principal Balance have been reduced to zero and
(ii) the Note Insurance Policy has been terminated and in either case of (i) or
(ii) the Note Insurer has been reimbursed for all Insured Payments and any other
amounts owed under the Note Insurance Policy and the Insurance Agreement (and
the Note Insurer no longer has any obligation under the Note Insurance Policy,
except for breach thereof by the Note Insurer), then the rights and benefits
granted or reserved to the Note Insurer hereunder (including the rights to
direct certain actions and receive certain notices) shall terminate and the
Certificateholders shall be entitled to the exercise of such rights and to
receive such benefits of the Note Insurer following such termination to the
extent that such rights and benefits are applicable to the Certificateholders.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Emmett R. Harmon
-------------------------------
Name: Emmett R. Harmon
Title: Vice President
IMC SECURITIES, INC.,
as Depositor
By: /s/ Thomas G. Middleton
------------------------------
Name: Thomas G. Middleton
Title: President
Acknowledged and Accepted:
THE CHASE MANHATTAN BANK ,
as Trust Paying Agent and Certificate Registrar
By: /s/ Jennifer Cupo
--------------------------------
Name: Jennifer Cupo
Title: Assistant Vice President
Acknowledged and Accepted:
IMC MORTGAGE COMPANY,
as Seller
By: /s/ Thomas G. Middleton
------------------------------
Name: Thomas G. Middleton
Title: President
32
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST OF
IMC HOME EQUITY LOAN TRUST 1998-7
THIS Certificate of Trust of IMC Home Equity Loan Owner Trust 1998-7
(the "Trust") dated as of December 1, 1998, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. Code, ss.3801 et
seq.).
1. Name. The name of the business trust formed hereby is IMC Home Equity Loan
Owner Trust 1998-7.
2. Delaware Trustee. The name and business address of the trustee of the Trust
in the State of Delaware is Wilmington Trust Company, Rodney Square North, 1100
N. Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration.
3. This Certificate of Trust shall be effective as of its filing. IN WITNESS
WHEREOF, the undersigned, being the sole trustee of the Trust, has executed this
Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ____________________________
Name:
Title:
<PAGE>
EXHIBIT B
TO THE TRUST AGREEMENT
(FORM OF CERTIFICATE)
THE EQUITY INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR
INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OR (INCLUDING PLEDGED) BY THE
HOLDER HEREOF ONLY TO (I) AN "INSTITUTIONAL ACCREDITED INVESTOR" AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT, (II) A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION
THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR
(III) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN
AFFILIATE OF A PERSON DESCRIBED IN (II) WITHIN THE MEANING OF RULE 3a-7 OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, IMC
MORTGAGE COMPANY AND IMC SECURITIES, INC.) IN A TRANSACTION THAT IS REGISTERED
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO
REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS.
NO TRANSFER OF THIS CERTIFICATE OR ANY BENEFICIAL INTEREST THEREIN SHALL
BE MADE TO ANY PERSON UNLESS THE OWNER TRUSTEE HAS RECEIVED EITHER
(A) A CERTIFICATE FROM THE TRANSFEREE TO THE EFFECT THAT SUCH
TRANSFEREE (1) 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 A "PLAN" WITHIN THE MEANING OF
SECTION 4975(e)(1) OF THE CODE (ANY SUCH PLAN OR EMPLOYEE BENEFIT
PLAN, A "PLAN") AND IS NOT DIRECTLY OR INDIRECTLY PURCHASING SUCH
CERTIFICATE ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF A PLAN, OR (2)
EITHER (I) SUCH TRANSFEREE IS ACQUIRING THE CERTIFICATE FOR ITS OWN
ACCOUNT AND NO PART OF THE ASSETS USED TO ACQUIRE THE CERTIFICATE
CONSTITUTES ASSETS OF A PLAN, OR (II) THE SOURCE OF FUNDS TO BE
USED TO ACQUIRE SUCH CERTIFICATE IS AN "INSURANCE COMPANY GENERAL
ACCOUNT," WITHIN THE MEANING OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, 60 FED. REG. 35925 (JULY 12, 1995) (THE
"EXEMPTION"), AND THERE IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT
OF SUCH GENERAL ACCOUNT'S RESERVES FOR THE CONTRACT(S) HELD BY OR
ON BEHALF OF SUCH PLAN (DETERMINED UNDER SECTION 807(d) OF THE
CODE), TOGETHER WITH THE AMOUNT OF THE RESERVES OF THE CONTRACT(S)
HELD BY OR ON BEHALF OF ANY OTHER PLANS (DETERMINED UNDER SECTION
807(d) OF THE CODE) MAINTAINED BY THE SAME EMPLOYER (OR AN
AFFILIATE THEREOF AS DEFINED IN SECTION V(a)(1) OF THE
B-1
<PAGE>
EXEMPTION) OR BY THE SAME EMPLOYEE ORGANIZATION, EXCEED 10% OF THE
TOTAL OF ALL LIABILITIES OF SUCH GENERAL ACCOUNT; OR
(B) AN OPINION OF COUNSEL ACCEPTABLE TO SUCH PERSONS THAT (A) THE
PROPOSED ISSUANCE OR TRANSFER OF THE CERTIFICATE TO SUCH TRANSFEREE
WILL NOT CAUSE ANY ASSETS OF THE TRUST TO BE DEEMED ASSETS OF A
PLAN, OR (B) THE PROPOSED ISSUANCE OR TRANSFER OF THE CERTIFICATE
WILL NOT CAUSE THE OWNER TRUSTEE OR THE CERTIFICATE REGISTRAR OR
ANY OF THEIR RESPECTIVE SUCCESSORS TO BE A FIDUCIARY OF A PLAN
WITHIN THE MEANING OF SECTION 3(21) OF ERISA AND WILL NOT GIVE RISE
TO A TRANSACTION DESCRIBED IN SECTION 406 OF ERISA OR SECTION
4975(c)(1) OF THE CODE FOR WHICH A STATUTORY OR ADMINISTRATIVE
EXEMPTION IS UNAVAILABLE.
THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF UNLESS,
PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER TRUSTEE
AND THE CERTIFICATE REGISTRAR A CERTIFICATE STATING THAT SUCH TRANSFEREE (A)
AGREES TO BE BOUND BY AND TO ABIDE BY THE TRANSFER RESTRICTIONS APPLICABLE TO
THIS CERTIFICATE; (B) IS NOT AN ENTITY THAT WILL HOLD THIS CERTIFICATE AS
NOMINEE TO FACILITATE THE CLEARANCE AND SETTLEMENT OF SUCH SECURITY THROUGH
ELECTRONIC BOOK ENTRY CHANGES IN ACCOUNTS OF PARTICIPATING ORGANIZATIONS (A
"BOOK ENTRY NOMINEE") AND (C) THAT THIS CERTIFICATE MAY NOT BE PURCHASED BY OR
TRANSFERRED TO ANY PERSON THAT IS A NON-U.S. PERSON. THE TERM "NON-U.S. PERSON"
MEANS A PERSON WHO IS NOT ONE OF THE FOLLOWING: A CITIZEN OR RESIDENT OF THE
UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED
IN OR UNDER THE LAWS OF THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF,
AN ESTATE THAT IS SUBJECT TO U.S. FEDERAL INCOME TAX REGARDLESS OF THE SOURCE OF
ITS INCOME OR A TRUST IF (I) A COURT IN THE UNITED STATES IS ABLE TO EXERCISE
PRIMARY SUPERVISION OVER THE ADMINISTRATION OF THE TRUST AND (II) ONE OR MORE
UNITED STATES FIDUCIARIES HAVE THE AUTHORITY TO CONTROL ALL SUBSTANTIAL
DECISIONS OF THE TRUST.
B-2
<PAGE>
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
CERTIFICATE
No. 0001
THIS CERTIFIES THAT IMC Mortgage Company (the "Owner") is the registered
owner of a 100% Percentage Interest in IMC Home Equity Loan Owner Trust 1998-7
(the "Trust") existing under the laws of the State of Delaware and created
pursuant to the Trust Agreement, dated as of December 1, 1998 (the "Trust
Agreement"), between IMC Securities, Inc., as Depositor, and Wilmington Trust
Company, in its individual capacity and in its fiduciary capacity as owner
trustee under the Trust Agreement (the "Owner Trustee"). Capitalized terms used
but not otherwise defined herein have the meanings assigned to such terms in the
Trust Agreement. The Owner Trustee, on behalf of the Issuer and not in its
individual capacity, has executed this Certificate by one of its duly authorized
signatories as set forth below. This Certificate is one of the Certificates
referred to in the Trust Agreement and is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement to which the holder of
this Certificate by virtue of the acceptance hereof agrees and by which the
holder hereof is bound. Reference is hereby made to the Trust Agreement for the
rights of the holder of this Certificate, as well as for the terms and
conditions of the Trust created by the Trust Agreement.
The holder, by its acceptance hereof, agrees not to transfer this
Certificate except in accordance with terms and provisions of the Agreement.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee under the Trust
Agreement
By: ____________________________________
Authorized Signatory
DATED: December 10, 1998
B-3
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
THE CHASE MANHATTAN BANK,
as Certificate Registrar
-----------------------------------
Authorized Signatory
B-4
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- - ------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- - ------------------------------------------------------------------------------
the within Instrument, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________________________________________ Attorney to
transfer said Instrument on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated: _____________________
__________________________________________*/
Signature Guaranteed:
__________________________________________*/
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Instrument in every particular,
without alteration, enlargement or any change whatever. Such signature
must be guaranteed by a member firm of the New York Stock Exchange or a
commercial bank or trust company.
B-5
SALE AND SERVICING AGREEMENT
Dated as of December 1, 1998
Among
IMC HOME EQUITY LOAN OWNER TRUST 1998-7,
as Issuer,
IMC SECURITIES, INC.
as Depositor,
IMC MORTGAGE COMPANY,
as Seller
OCWEN FEDERAL BANK FSB,
as Servicer
and
THE CHASE MANHATTAN BANK
as Indenture Trustee
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
HOME EQUITY LOAN ASSET BACKED NOTES, SERIES 1998-7A AND
HOME EQUITY LOAN ASSET BACKED NOTES, SERIES 1998-7B
<PAGE>
<TABLE>
<CAPTION>
CONTENTS
Page
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<S> <C>
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION.......................................................................1
Section 1.01 Definitions............................................................................1
Section 1.02 Use of Words and Phrases..............................................................20
Section 1.03 Captions; Table of Contents...........................................................20
Section 1.04 Opinions..............................................................................20
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE DEPOSITOR, THE SERVICER AND THE SELLER;
COVENANT OF DEPOSITOR TO CONVEY HOME EQUITY LOANS.......................................................21
Section 2.01 Representations and Warranties of the Depositor.......................................21
Section 2.02 Representations and Warranties of the Servicer........................................23
Section 2.03 Representations and Warranties of the Seller..........................................25
Section 2.04 Covenants of Seller to Take Certain Actions with Respect to the Home
Equity Loans in Certain Situations....................................................28
Section 2.05 Conveyance of the Home Equity Loans and Qualified
Replacement Mortgages.................................................................34
Section 2.06 Acceptance by Indenture Trustee; Certain Substitutions of Home Equity
Loans; Certification by Indenture Trustee.............................................38
Section 2.07 [Reserved]............................................................................39
Section 2.08 Custodian.............................................................................39
Section 2.09 Books and Records.....................................................................40
ARTICLE III
ACCOUNTS, DISBURSEMENTS AND RELEASES....................................................................41
Section 3.01 [Reserved.............................................................................41
Section 3.02 Establishment of Accounts.............................................................41
Section 3.03 Flow of Funds.........................................................................41
Section 3.04 Reserve Account.......................................................................43
Section 3.05 Investment of Accounts................................................................44
Section 3.06 Payment of Trust Expenses.............................................................45
Section 3.07 Eligible Investments..................................................................45
Section 3.08 Accounting and Directions by Indenture Trustee........................................46
Section 3.09 Reports by Indenture Trustee to Owners and Note Insurer...............................47
Section 3.10 Reports by Indenture Trustee..........................................................49
ARTICLE IV
SERVICING AND ADMINISTRATION
OF HOME EQUITY LOANS....................................................................................50
Section 4.01 Servicer and Sub-Servicers............................................................50
Section 4.02 Collection of Certain Home Equity Loan Payments.......................................51
Section 4.03 Sub-Servicing Agreements..............................................................51
Section 4.04 Successor Sub-Servicers...............................................................52
Section 4.05 Liability of Servicer; Indemnification................................................52
Section 4.06 No Contractual Relationship Between Sub-Servicer, Indenture
Trustee or the Owners.................................................................53
Section 4.07 Assumption or Termination of Sub-Servicing Agreement by
Indenture Trustee.....................................................................53
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Section 4.08 Principal and Interest Account........................................................53
Section 4.09 Delinquency Advances and Servicing Advances...........................................55
Section 4.10 Compensating Interest; Repurchase of Home Equity Loans................................55
Section 4.11 Maintenance of Insurance..............................................................56
Section 4.12 Due-on-Sale Clauses; Assumption and Substitution Agreements...........................57
Section 4.13 Realization Upon Defaulted Home Equity Loans; Workout of Home
Equity Loans..........................................................................57
Section 4.14 Indenture Trustee to Cooperate; Release of Files......................................58
Section 4.15 Servicing Compensation................................................................59
Section 4.16 Annual Statement as to Compliance.....................................................59
Section 4.17 Annual Independent Certified Public Accountants' Reports..............................60
Section 4.18 Access to Certain Documentation and Information Regarding the
Home Equity Loans.....................................................................60
Section 4.19 Assignment of Agreement...............................................................60
Section 4.20 Removal of Servicer; Retention of Servicer; Resignation of Servicer...................60
Section 4.21 Inspections by Note Insurer; Errors and Omissions Insurance...........................63
Section 4.22 Additional Servicing Responsibilities for Second Mortgage Loans.......................64
Section 4.23 Adjustable Rate Home Equity Loans.....................................................64
Section 4.24 Administration of the Issuer..........................................................64
ARTICLE V
TERMINATION.............................................................................................65
Section 5.01 Termination...........................................................................65
Section 5.02 Termination Upon Auction Sale.........................................................65
Section 5.03 Redemption of Notes...................................................................65
Section 5.04 Disposition of Proceeds...............................................................66
ARTICLE VI
MISCELLANEOUS...........................................................................................67
Section 6.01 Acts of Owners........................................................................67
Section 6.02 Recordation of Agreement. ...........................................................67
Section 6.03 Duration of Agreement. ..............................................................67
Section 6.04 Successors and Assigns................................................................67
Section 6.05 Severability. .......................................................................67
Section 6.06 Governing Law; Submission to Jurisdiction.............................................67
Section 6.07 Counterparts. .......................................................................68
Section 6.08 Amendment.............................................................................68
Section 6.09 Specification of Certain Tax Matters. ...............................................69
Section 6.10 The Note Insurer......................................................................69
Section 6.11 Third Party Rights....................................................................69
Section 6.12 Notices...............................................................................69
Section 6.13 Benefits of Agreement.................................................................71
Section 6.14 Legal Holidays........................................................................71
Section 6.15 Usury.................................................................................71
Section 6.16 No Petition...........................................................................72
ARTICLE VII
CERTAIN MATTERS REGARDING THE NOTE INSURER..............................................................73
Section 7.01 Trust Estate and Accounts Held for Benefit of the Note Insurer........................73
Section 7.02 Claims Upon the Policy; Policy Payments Account.......................................73
</TABLE>
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Section 7.03 Effect of Payments by the Note Insurer; Subrogation...................................74
Section 7.04 Notices to the Note Insurer...........................................................74
Section 7.05 Rights to the Note Insurer To Exercise Rights of Owners...............................75
SCHEDULE IA SCHEDULE OF POOL I HOME EQUITY LOANS
SCHEDULE IB SCHEDULE OF POOL II HOME EQUITY LOANS
EXHIBIT A FORM OF CERTIFICATE RE: HOME EQUITY LOANS
PREPAID IN FULL AFTER CUT-OFF DATE
EXHIBIT B-1 FORM OF INDENTURE TRUSTEE'S RECEIPT
EXHIBIT B-2 FORM OF CUSTODIAN'S RECEIPT
EXHIBIT C FORM OF POOL CERTIFICATION
EXHIBIT D HOME EQUITY LOANS WITH DOCUMENT EXCEPTIONS
</TABLE>
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SALE AND SERVICING AGREEMENT dated as of December 1, 1998 by and among
IMC HOME EQUITY LOAN OWNER TRUST 1998-7, a Delaware business trust (the "Issuer"
or the "Trust"), IMC SECURITIES, INC., a Delaware corporation, in its capacities
as Depositor (the "Depositor"), IMC MORTGAGE COMPANY, a Florida corporation in
its capacity as the Seller (the "Seller"), OCWEN FEDERAL BANK FSB, a federal
savings bank, in its capacity as the servicer (the "Servicer") and THE CHASE
MANHATTAN BANK, a New York banking corporation, in its capacity as the indenture
trustee on behalf of the Owners of the Notes (the "Indenture Trustee").
WHEREAS, the Seller is engaged in the business of originating,
purchasing and servicing home equity loans secured by first and second lien
mortgages and deeds of trust on residential property;
WHEREAS, the Seller desires to sell to the Depositor and the Depositor
desires to purchase from the Seller the Home Equity Loans and the Depositor
desires to sell to the Issuer and the Issuer desires to purchase from the
Depositor the Home Equity Loans and all monies due and to become due thereunder
after December 1, 1998;
WHEREAS, the Issuer desires to purchase a pool of Home Equity Loans
(the "Home Equity Loans") consisting of two subpools ("Pool I" and "Pool II")
which were originated or purchased by the Seller;
WHEREAS, the Seller is willing to sell such Home Equity Loans to the
Depositor and the Depositor is willing to sell such Home Equity Loans to the
Issuer;
WHEREAS, the Servicer has acquired the servicing rights with respect to
the Home Equity Loans and has agreed to service the Home Equity Loans in
accordance with the terms of this Agreement;
WHEREAS, The Chase Manhattan Bank, is willing to serve in the capacity
of Indenture Trustee hereunder; and
WHEREAS, Financial Security Assurance Inc. (the "Note Insurer") is
intended to be a third party beneficiary of this Agreement and is hereby
recognized by the parties hereto to be a third-party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Issuer, the Depositor, the Seller, the
Servicer, and the Indenture Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section 1.01 Definitions.
For all purposes of this Agreement, the following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
"Account": Any account established in accordance with Section 3.02,
3.04 or 4.08 hereof.
"Accrual Period": With respect to any Payment Date, the calendar month
immediately preceding the calendar month in which such Payment Date occurs.
Calculations of interest will be made on the basis of a 360-day year assumed to
consist of twelve 30-day months.
"Affiliate": 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,
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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 foregoing.
"Agreement": This Sale and Servicing Agreement, as it may be amended
from time to time, including the Exhibits and Schedules hereto.
"Annual Loss Percentage (Rolling Twelve Month)": As of any date of
determination thereof, a fraction, expressed as a percentage, the numerator of
which is the aggregate of the Realized Losses for each of the twelve immediately
preceding Remittance Periods and the denominator of which is the aggregate Loan
Balance as of the beginning of such 12-month period.
"Appraised Value": The appraised value of any Property based upon the
appraisal made at the time of the origination of the related Home Equity Loan,
or, in the case of a Home Equity Loan which is a purchase money mortgage, the
sales price of the Property at such time of origination, if such sales price is
less than such appraised value.
"Auction Sale": The sale of all of the Home Equity Loans in a Loan Pool
pursuant to Section 5.02.
"Auction Sale Reserve Deposit": With respect to any Auction Sale of a
Loan Pool, the amount equal to the lesser of (a) the excess, if any, of (i) the
Loan Balance of the Home Equity Loans in such Loan Pool over (ii) the Note
Principal Balance of the related Series of Notes and (b) the amount by which the
Specified Overcollateralization Amount for the other Loan Pool would exceed the
Overcollateralization Amount for the other Loan Pool if the Mortgage Portfolio
Performance Test was measured using only the Home Equity Loans in such other
Loan Pool; provided however that the Note Insurer, by notice to each of the
parties hereto in accordance with Section 6.12, can expressly waive the
requirement of such an Auction Sale Reserve Deposit. In the event that as a
result of such calculation the Specified Overcollateralization Amount is
unlimited the Auction Sale Reserve Deposit will be the amount determined by
clause (a).
"Authorized Officer": With respect to any Person, any officer of such
Person who is authorized to act for such Person in matters relating to this
Agreement, and whose action is binding upon, such Person; with respect to the
Depositor and the Servicer, initially including those individuals whose names
appear on the lists of Authorized Officers delivered at the Closing; with
respect to the Indenture Trustee, any officer assigned to the Corporate Trust
Division (or any successor thereto), including any Vice President, Assistant
Vice President, Trust Officer, any Assistant Secretary, any trust officer or any
other officer of the Indenture Trustee customarily performing functions similar
to those performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement.
"Backup Servicer": The Indenture Trustee shall initially serve as
Backup Servicer hereunder in the event of the termination of the Servicer,
subject to the right of the Indenture Trustee to assign such duties to a party
acceptable to the Note Insurer, the Rating Agencies and the Owners of the
majority of the Percentage Interests of the Certificates.
"Bid Solicitation Commencement Date": With respect to Pool I, the first
Monthly Remittance Date on which the aggregate Loan Balance of the Pool I Home
Equity Loans has declined to less than $52,900,000 and with respect to Pool II,
the first Monthly Remittance Date on which the aggregate Loan Balance of the
Pool II Home Equity Loans has declined to less than $7,100,000.
"Bid Solicitation Date": The Remittance Date in each of January, April,
July and October commencing on the first January, April, July or October after
the Bid Solicitation Commencement Date.
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"Business Day": Any day other than a Saturday, Sunday or a day on which
commercial banking institutions in The City of New York, the city in which the
Corporate Trust Office is located, the city in which the principal office of the
Note Insurer is located or the city in which the principal office of the
Servicer is located are authorized or obligated by law or executive order to be
closed.
"Carry-Forward Amount": With respect to either Series of Notes and as
to any Payment Date, the sum of (x) the amount, if any, by which (i) the sum of
(A) the Current Interest for such Series (without regard to any portion thereof
which represents a Preference Amount which is not yet due in accordance with the
Note Insurance Policy) for the immediately preceding Payment Date and (B) any
unpaid Carry-Forward Amounts from all previous Payment Dates exceeded (ii) the
amount of the actual distribution made to the Owners of such Series on such
immediately preceding Payment Date pursuant to Section 3.03(b)(ii) and
3.03(b)(v)(y) hereof plus (y) interest on such excess at the related Note Rate
for such Series of Notes for a period of 30 days.
"Certificate": Any one of the Certificates issued pursuant to the Trust
Agreement.
"Certificate Distribution Account": The Certificate Distribution
Account established in accordance with the Trust Agreement.
"Civil Relief Interest Shortfalls": With respect to any Remittance
Period, for any Home Equity Loan as to which there has been a reduction in the
amount of interest collectible thereon for the most recently ended Remittance
Period as a result of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended, the amount, if any, by which (i) interest collectible on such Home
Equity Loan during the most recently ended Remittance Period is less than (ii)
the sum of (a) one month's interest on the Loan Balance of such Home Equity Loan
at a rate equal to the related Note Rate plus (b) 0.75375% per annum for such
Remittance Period.
"Clean Up Call Date": The first Monthly Remittance Date on which the
Loan Balance of the Home Equity Loans in both Loan Pools combined has declined
to less than 5% of the Maximum Collateral Amount.
"Closing Date": On or about December 10, 1998.
"Code": The Internal Revenue Code of 1986, as amended.
"Compensating Interest": As defined in Section 4.10(a) hereof.
"Corporate Trust Office": The principal office of the Indenture Trustee
at The Chase Manhattan Bank, 450 W. 33rd Street, 14th Floor, New York, NY 10001,
Attention: Structured Finance Services Department, IMC 1998-7 or the principal
office of any successor Indenture Trustee hereunder.
"Coupon Rate": The annual rate of interest borne by each Mortgage Note.
"Cram Down Loss": With respect to a Home Equity Loan, if a court of
appropriate jurisdiction in an insolvency proceeding shall have issued an order
reducing the Loan Balance or the Coupon Rate of such Home Equity Loan, the
amount of such reduction. A "Cram Down Loss" shall be deemed to have occurred on
the date of issuance of such order.
"Cumulative Loss Percentage": As of any date of determination thereof,
the aggregate of all Realized Losses since the Closing Date as a percentage of
the Maximum Collateral Amount; provided that
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Realized Losses resulting solely from Cram Down Losses shall not be included in
the definition of Realized Losses for purposes of calculating the Cumulative
Loss Percentage.
"Cumulative Loss Test": The Cumulative Loss Test for each period
indicated below is satisfied if the Cumulative Loss Percentage does not exceed
the percentage set out for such period below:
Cumulative Loss
Period Percentage
------ ----------
January 2, 1999 - January 1, 2001 1.25%
January 2, 2001 - January 1, 2002 1.50%
January 2, 2002 - January 1, 2003 1.75%
January 2, 2003 - and thereafter 2.25%
"Current Interest": As applicable, the Pool I Current Interest or the
Pool II Current Interest.
"Custodial Agreement": The Custodial Agreement dated as of December 1,
1998 among the Custodian, the Issuer, the Indenture Trustee, the Depositor, the
Seller and the Servicer.
"Custodian": Bank One Trust Company, N.A., as Custodian on behalf of
the Indenture Trustee pursuant to the Custodial Agreement.
"Cut-Off Date": As of the close of business on December 1, 1998.
"Daily Collections": As defined in Section 4.08(c) hereof.
"Delinquency Advance": As defined in Section 4.09(a) hereof.
"Delinquent": A Home Equity Loan is "Delinquent" if any payment due
thereon is not made by the Mortgagor by the close of business on the related Due
Date. A Home Equity Loan is "30 days Delinquent" if such payment has not been
received by the close of business on the corresponding day of the month
immediately succeeding the month in which such payment was due, or, if there is
no such corresponding day (e.g., as when a 30-day month follows a 31-day month
in which a payment was due on the 31st day of such month) then on the last day
of such immediately succeeding month. Similarly for "60 days Delinquent," "90
days Delinquent" and so on.
"Depositor": IMC Securities, Inc., a Delaware corporation, or any
successor thereto.
"Depository": The Depository Trust Company, 7 Hanover Square, New York,
New York, 10004, and any successor Depository named herein.
"Determination Date": The 15th day of each month, or if such day is not
a Business Day, on the preceding Business Day, commencing in January 1999.
"Due Date": With respect to any Home Equity Loan, the date on which the
Monthly Payment with respect to such Home Equity Loan is required to be paid
pursuant to the related Mortgage Note exclusive of any days of grace.
"Eligible Account": With respect to the Principal and Interest Account,
any of (i) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the
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principal subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated P-1 by Moody's and A-1 by
Standard & Poor's (or comparable ratings if Moody's and Standard & Poor's are
not the Rating Agencies) at the time any amounts are held on deposit therein,
(ii) an account or accounts the deposits in which are fully insured by the FDIC
(to the limits established by such corporation), the uninsured deposits in which
account are otherwise secured such that, as evidenced by an Opinion of Counsel
delivered to the Indenture Trustee and to each Rating Agency, the Owners of the
Notes will have a claim with respect to the funds in such account or a perfected
first priority security interest against such collateral (which shall be limited
to Eligible Investments) securing such funds that is superior to claims of any
other depositors or creditors of the depository institution with which such
account is maintained, (iii) a trust account or accounts maintained with the
trust department of a federal or state chartered depository institution,
national banking association or trust company acting in its fiduciary capacity
or (iv) otherwise acceptable to each Rating Agency without reduction or
withdrawal of their then current ratings of the Notes as evidenced by a letter
from each Rating Agency to the Indenture Trustee. Account may bear interest. The
Servicer shall provide the Indenture Trustee and the Note Insurer with a
statement identifying the location and account information of the Principal and
Interest Account upon a change in the location of such account.
"Eligible Investments": Those investments so designated pursuant to
Section 3.07 hereof.
"Excess Overcollateralization Amount": The Pool I Excess
Overcollateralization Amount or the Pool II Excess Overcollateralization Amount.
"Excess Spread": The Pool I Excess Spread or the Pool II Excess Spread,
as applicable.
"Fannie Mae": Fannie Mae, a federally-chartered and privately-owned
corporation existing under the Federal National Mortgage Association Charter
Act, as amended, or any successor thereof.
"FDIC": The Federal Deposit Insurance Corporation, a corporate
instrumentality of the United States, or any successor thereto.
"File": The documents delivered to the Indenture Trustee pursuant to
Section 2.05(b) hereof pertaining to a particular Home Equity Loan and any
additional documents required to be added to the File pursuant to this
Agreement.
"Final Certification": As defined in Section 2.06(c) hereof.
"Final Payment Date": The Final Payment Date for each Series of Notes
is as follows: Series 1998- 7A, November 20, 2029; and, Series 1998-7B, November
20, 2029.
"Final Recovery Determination": With respect to any defaulted Home
Equity Loan or REO Property (other than a Home Equity Loan purchased by the
Seller or the Servicer), a determination made by the Servicer that all
Liquidation Proceeds which the Servicer, in its reasonable business judgment
expects to be finally recoverable in respect thereof have been so recovered or
that the Servicer believes in its reasonable business judgment the cost of
obtaining any additional recoveries therefrom would exceed the amount of such
recoveries. The Servicer shall maintain records of each Final Recovery
Determination.
"First Mortgage Loan": A Home Equity Loan which constitutes a first
priority mortgage lien with respect to any Property.
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"Freddie Mac": The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created pursuant to the Emergency Home
Finance Act of 1970, as amended, or any successor thereof.
"Highest Lawful Rate": As defined in Section 6.15 hereof.
"Home Equity Loans": Such home equity loans transferred and assigned to
the Trust pursuant to Section 2.05(a) hereof, together with any Qualified
Replacement Mortgages substituted therefor in accordance with this Agreement, as
from time to time are held as a part of the Trust Estate, the Home Equity Loans
originally so held being identified in the Schedule of Home Equity Loans. The
term "Home Equity Loan" includes the terms "First Mortgage Loan" and "Second
Mortgage Loan." The term "Home Equity Loan" includes any Home Equity Loan which
is Delinquent, which relates to a foreclosure or which relates to a Property
which is REO Property prior to such Property's disposition by the Trust. Any
home equity loan which, although intended by the parties hereto to have been,
and which purportedly was, transferred and assigned to the Trust by the
Depositor, in fact was not transferred and assigned to the Trust for any reason
whatsoever, including, without limitation, the incorrectness of the statement
set forth in Section 2.04(b)(x) hereof with respect to such home equity loan,
shall nevertheless be considered a "Home Equity Loan" for all purposes of this
Agreement.
"Indemnification Agreement": The Indemnification Agreement dated as of
December 2, 1998 among the Note Insurer, the Depositor, the Seller, the Issuer
and the Underwriter.
"Indenture": As applicable, the Pool I Indenture or the Pool II
Indenture.
"Indenture Trustee": The Chase Manhattan Bank, a New York banking
corporation, the Corporate Trust Department of which is located on the date of
execution of this Agreement at 450 W. 33rd Street, New York, NY 10001, not in
its individual capacity but solely as Indenture Trustee under the Indenture, and
any successor hereunder.
"Indenture Trustee Fee": The Pool I Indenture Trustee Fee or the Pool
II Indenture Trustee Fee, as applicable.
"Indenture Trustee Reimbursable Expenses": The sum of (a) any amounts
payable pursuant to the second sentence of Section 6.7 of the Indenture;
provided that such amounts payable as Indenture Trustee Reimbursable Expenses
shall not exceed $50,000 and (b) any and all fees and expenses of the Indenture
Trustee and its agents and counsel in connection with an Auction Sale.
"Insurance Agreement": The Insurance and Indemnity Agreement dated as
of December 1, 1998, among the Issuer, the Depositor, the Seller, the Servicer
and the Note Insurer, as such agreement may be amended from time to time.
"Insurance Policy": Any hazard, flood, title or primary mortgage
insurance policy relating to a Home Equity Loan plus any amount remitted under
Section 4.11 hereof.
"Insured Payment": As to any Payment Date, the excess, if any, of (i)
the sum (without duplication) of (a) the Current Interest for both Series of
Notes, (b) the Overcollateralization Deficit and (c) the Preference Amount for
both Series of Notes over (ii) the Total Available Funds (without regard to any
Insured Payment to be made with respect to such Payment Date).
"Interest Remittance Amount": The Pool I Interest Remittance Amount or
the Pool II Interest Remittance Amount, as applicable.
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"Issuer" or "Trust": IMC Home Equity Loan Owner Trust 1998-7, a
Delaware business trust.
"Late Payment Rate": For any Monthly Remittance Date, the rate of
interest as it is publicly announced by Citibank, N.A. at its principal office
in New York, New York as its prime rate (any change in such prime rate of
interest to be effective on the date such change is announced by Citibank, N.A.)
plus 3%. The Late Payment Rate shall be computed on the basis of a year of 365
days calculating the actual number of days elapsed. In no event shall the Late
Payment Rate exceed the maximum rate permissible under any applicable law
limiting interest rates.
"Liquidated Loan": A Home Equity Loan as to which a Final Recovery
Determination has been made.
"Liquidation Proceeds": With respect to any Liquidated Loan, all
amounts (including the proceeds of any Insurance Policy) recovered by the
Servicer in connection with such Liquidated Loan, whether through trustee's
sale, foreclosure sale or otherwise.
"Limited Release Date": Any Payment Date on which (x) the 60+ Day
Delinquency Percentage (Rolling Six Month) is greater than 12.00% but less than
18.00%, (y) the O/C Loss Test is satisfied and (z) the Annual Loss Percentage
(Rolling Twelve Month) is not greater than or equal to 1.60%.
"Limited Excess Spread": The Pool I Limited Excess Spread or the Pool
II Limited Excess Spread, as applicable.
"Loan Balance": With respect to each Home Equity Loan and as of any
date of determination, the actual outstanding principal balance thereof on the
Cut-Off Date with respect to the Home Equity Loans excluding payments of
principal due on or prior to the Cut-Off Date, whether or not received, less any
principal payments relating to such Home Equity Loan included in previous
Monthly Remittance Amounts, provided, however, that the Loan Balance for any
Home Equity Loan that has become a Liquidated Loan shall be zero as of the first
day of the Remittance Period following the Remittance Period in which such Home
Equity Loan becomes a Liquidated Loan, and at all times thereafter.
"Loan Pool" Pool I or Pool II, or, if the context requires,
collectively, Pool I and Pool II.
"Loan Purchase Price": With respect to any Home Equity Loan purchased
from the Trust on or prior to a Monthly Remittance Date pursuant to Section
2.03, 2.04, 2.06(b) or 4.10(b) hereof, an amount equal to the Loan Balance of
such Home Equity Loan as of the date of purchase (assuming that the Monthly
Remittance Amount remitted by the Servicer on such Monthly Remittance Date has
already been remitted), plus all accrued and unpaid interest on such Home Equity
Loan at the Coupon Rate to but not including the date of such purchase together
with (without duplication) the aggregate amounts of (i) all unreimbursed
Delinquency Advances and Servicing Advances theretofore made with respect to
such Home Equity Loan, (ii) all Delinquency Advances which the Servicer has
theretofore failed to remit with respect to such Home Equity Loan and (iii) all
reimbursed Delinquency Advances to the extent that reimbursement is not made
from the Mortgagor or from Liquidation Proceeds from the respective Home Equity
Loan.
"Loan-to-Value Ratio": As of any particular date (i) with respect to
any First Mortgage Loan, the percentage obtained by dividing the Appraised Value
into the original principal balance of the Mortgage Note relating to such First
Mortgage Loan and (ii) with respect to any Second Mortgage Loan, the percentage
obtained by dividing the Appraised Value as of the date of origination of such
Second Mortgage Loan into an amount equal to the sum of (a) the remaining
principal balance of the Senior Lien note relating to such First Mortgage Loan
as of the date of origination of the related Second Mortgage Loan and (b) the
original principal balance of the Mortgage Note relating to such Second Mortgage
Loan.
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"Maximum Collateral Amount": $600,008,926.75.
"Monthly Payment": With respect to any Home Equity Loan and any
Remittance Period, the payment of principal, if any, and interest due on the Due
Date in such Remittance Period pursuant to the related Mortgage Note.
"Monthly Remittance Amount": As applicable, the Pool I Monthly
Remittance Amount or the Pool II Monthly Remittance Amount.
"Monthly Remittance Date": The 18th day of each month, or if such day
is not a Business Day, on the preceding Business Day, commencing in January
1999.
"Monthly Reporting Date": With respect to a Payment Date, the related
Determination Date.
"Moody's": Moody's Investors Service, Inc. or any successor thereto.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first or second lien on an estate in fee simple interest in real property
securing a Mortgage Note.
"Mortgage Note": The note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Home Equity Loan.
"Mortgage Portfolio Performance Test": The Mortgage Portfolio
Performance Test is satisfied for any date of determination thereof if either
(A) (x) the 60+ Delinquency Percentage (Rolling Six Month) is less than or equal
to 12.00%, (y) the O/C Loss Test is satisfied and (z) the Annual Loss Percentage
(Rolling Twelve Month) for the twelve month period immediately preceding the
date of determination thereof is not greater than or equal to 1.60%; or (B) the
Note Insurer by notice to each of the parties hereto in accordance with Section
6.12, expressly waives compliance with the foregoing tests for such date of
determination.
"Mortgagor": The obligor on a Mortgage Note.
"Net Liquidation Proceeds": As to any Liquidated Loan, Liquidation
Proceeds net of expenses incurred by the Servicer (including unreimbursed
Servicing Advances) in connection with the liquidation of any defaulted Home
Equity Loan and unreimbursed Delinquency Advances relating to such Home Equity
Loan. In no event shall Net Liquidation Proceeds with respect to any Liquidated
Loan be less than zero.
"Nonrecoverable Advance": With respect to any Home Equity Loan is any
Delinquency Advance or Servicing Advance (i) which was previously made or is
proposed to be made by the Servicer and (ii) which, in the good faith judgment
of the Servicer, will not, or, in the case of a proposed Delinquency Advance or
Servicing Advance, would not be ultimately recoverable by the Servicer from
Liquidation Proceeds, proceeds of any insurance policies or future payments on
the Home Equity Loan.
"Note": Any one of the Series 1998-7A Notes or the Series 1998-7B
Notes.
"Note Accounts": The Pool I Note Account and the Pool II Note Account.
"Note Insurance Policy": The financial guaranty insurance policy
(number 50753-N) dated December 10, 1998 issued by the Note Insurer to the
Indenture Trustee for the benefit of the Owners pursuant to which the Note
Insurer guarantees Insured Payments.
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"Note Insurer": Financial Security Assurance Inc., or any successor
thereto, as issuer of the Note Insurance Policy.
"Note Insurer Default": The existence and continuance of any of the
following:
(a) the Note Insurer fails to make a payment required under
the Note Insurance Policy in accordance with its terms; or
(b) the Note Insurer shall have (i) filed a petition or
commenced any case or proceeding under any provision or chapter of the United
States Bankruptcy Code, the New York State Insurance Law or any other similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization, (ii) made a general assignment for the benefit
of its creditors or (iii) had an order for relief entered against it under the
United States Bankruptcy Code, the New York State Insurance Law or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization that is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department
of Insurance or any other competent regulatory authority shall have entered a
final and nonappealable order, judgment or decree (i) appointing a custodian,
trustee, or agent, or receiver for the Note Insurer or for all or any material
portion of its property or (ii) authorizing the taking of possession by a
custodian, trustee, agent, or receiver of the Note Insurer of all or any
material portion of its property.
"Note Principal Balance": The Pool I Note Principal Balance or the Pool
II Note Principal Balance, as applicable.
"O/C Loss Test": The O/C Loss Test for any period set out below is
satisfied if the Cumulative Loss Percentage does not exceed the percentage set
out for such period below:
Cumulative Loss
Period Percentage
------ ----------
January 2, 1999 - January 1, 2000 0.75%
January 2, 2000 - January 1, 2001 1.25%
January 2, 2001 - January 1, 2002 1.90%
January 2, 2002 - January 1, 2003 2.40%
January 2, 2003 - and thereafter 3.00%
"Officer's Certificate": A certificate signed by any Authorized Officer
of any Person delivering such certificate and delivered to the Indenture
Trustee.
"Operative Documents": Collectively, this Agreement, the Indentures,
the Certificate of Trust, the Trust Agreement, the Note Insurance Policy, the
Notes, the Custodial Agreement, the Indemnification Agreement and the Insurance
Agreement.
"Original Aggregate Loan Balance": The aggregate Loan Balances of all
Home Equity Loans as of the Cut-Off Date, which is $600,008,926.75;
$529,001,154.99 with respect to Loan Pool I and $71,007,771.76 with respect to
Loan Pool II.
"Original Pool I Note Principal Balance": $529,000,000.
"Original Pool II Note Principal Balance": $71,000,000.
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"Overcollateralization Amount": As applicable, the Pool I
Overcollateralization Amount or the Pool II Overcollateralization Amount.
"Overcollateralization Deficiency Amount": The Pool I
Overcollateralization Deficiency Amount or the Pool II Overcollateralization
Deficiency Amount.
"Overcollateralization Deficit": With respect to both Loan Pools and
any Payment Date, the amount, if any, by which (x) the aggregate Note Principal
Balance of both Series of Notes after taking into account all distributions to
be made on such Payment Date (without regard to any Insured Payment or
distribution of Excess Spread to be made on such Payment Date), exceeds (y) the
aggregate Loan Balances of the Home Equity Loans in both Loan Pools as of the
close of business on the last day of the related Remittance Period.
"Overcollateralization Reduction Amount": The Pool I
Overcollateralization Reduction Amount or the Pool I Overcollateralization
Reduction Amount.
"Owner": The Person in whose name a Note is registered in the Register,
and the Note Insurer, to the extent described in Sections 7.01 and 7.05.
"Owner Trustee": Wilmington Trust Company, as owner trustee under the
Trust Agreement, and any successor owner trustee under the Trust Agreement.
"Owner Trustee Fee": The Pool I Owner Trustee Fee or the Pool II Owner
Trustee Fee.
"Paying Agent": Initially, the Indenture Trustee, and thereafter, the
Indenture Trustee or any other Person that meets the eligibility standards for
the Paying Agent specified in Section 6.11 of the Indenture and is authorized by
the Indenture Trustee and the Depositor to make payments on the Certificates on
behalf of the Indenture Trustee.
"Payment Date": Any date on which the Indenture Trustee is required to
make distributions to the Owners, which shall be the 20th day of each month or
if such day is not a Business Day, the next Business Day thereafter, commencing
in the month following the Closing Date. The first Payment Date will be January
20, 1999.
"Percentage Interest": With respect to any Series of Notes, a fraction,
expressed as a decimal, the numerator of which is the Note Principal Balance
represented by such Note and the denominator of which is the aggregate Original
Note Principal Balance represented by all the Notes of such Series on the
Closing Date. With respect to the Certificates, the portion evidenced thereby,
expressed as a percentage, as stated on the face of such Certificate, all of
which shall total 100% with respect to the Certificates.
"Person": Any individual, corporation, limited partnership,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Policy Payments Account": The policy payments account maintained by
the Indenture Trustee pursuant to Section 7.02(b) hereof.
"Pool I": The pool of Home Equity Loans identified in Schedule IA as
having been assigned to Pool I, including any Qualified Replacement Mortgages
delivered in replacement thereof.
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"Pool I Current Interest": With respect Pool I and any Payment Date, an
amount equal to the sum of (i) the amount of interest accrued during the related
Accrual Period at the Series 1998-7A Note Rate on the Pool I Note Principal
Balance immediately prior to such Payment Date, (ii) the related Carry Forward
Amount; and (iii) any portion of the Preference Amount relating to interest owed
to the Owners of the Series 1998-7A Notes (which Preference Amount will be paid
in accordance with the Note Insurance Policy); provided, however, such amount
will be reduced by the amount of any Civil Relief Interest Shortfalls relating
to the Pool I Home Equity Loans.
"Pool I Excess Overcollateralization Amount": With respect to Loan Pool
I and a Payment Date, the excess, if any, of (x) the Pool I
Overcollateralization Amount that would apply on such Payment Date after taking
into account all payments to be made on such Payment Date (except for any
distributions of the Pool I Overcollateralization Reduction Amount on such
Payment Date), over (y) the Pool I Specified Overcollateralization Amount for
such Payment Date.
"Pool I Excess Spread": As to each Payment Date and Loan Pool I, the
amount on deposit in the Pool I Note Account after making the payments required
by Section 3.03(b)(i) - (iii) for such Loan Pool.
"Pool I Indenture": The Indenture, dated as of December 1, 1998 between
the Issuer and the Indenture Trustee, relating to the issuance of the Series
1998-7A Notes.
"Pool I Indenture Trustee Fee": The fee payable monthly to the
Indenture Trustee on each Payment Date in an amount equal to 0.00375% per annum,
on the outstanding aggregate Loan Balance of the Home Equity Loans in Pool I as
of the related Determination Date.
"Pool I Interest Remittance Amount": As of any Monthly Remittance Date,
the excess of (A) the sum, without duplication, of (i) all interest due during
the related Remittance Period with respect to the Pool I Home Equity Loans, (ii)
all Compensating Interest paid by the Servicer on such Monthly Remittance Date
with respect to the Pool I Home Equity Loans, (iii) the portion of the
Substitution Amount relating to interest on the Pool I Home Equity Loans, (iv)
the portion of any Loan Purchase Price relating to interest on any Pool I Home
Equity Loan repurchased during the related Remittance Period and (v) the portion
of Net Liquidation Proceeds relating to interest with respect to the Pool I Home
Equity Loans over (B) the Servicing Fee and other amounts reimbursable to, or
withdrawable from the Principal and Interest Account by, the Servicer.
"Pool I Limited Excess Spread": For any Payment Date that is a Limited
Release Date, the amount of Pool I Excess Spread which would otherwise be
remaining after the distributions made pursuant to Section 3.03(b)(vii) for Loan
Pool I if the Pool I Specified Overcollateralization Amount did not increase
because of the operation of clause (ii)(a) of the definition of Pool I Specified
Overcollateralization Additional Amount.
"Pool I Maximum Collateral Amount": $529,000,000.
"Pool I Monthly Remittance Amount": As of any Monthly Remittance Date,
the sum of (i) the Pool I Interest Remittance Amount for such Monthly Remittance
Date and (ii) the Pool I Principal Remittance Amount for such Monthly Remittance
Date.
"Pool I Note Account": The segregated trust account known as the "Pool
I Note Account" established in accordance with Section 3.2 hereof and maintained
by the Indenture Trustee at the Corporate Trust Office, provided that the funds
in such account shall not be commingled with any other funds held by the
Indenture Trustee.
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"Pool I Note Principal Balance": As of any time of determination, the
Original Pool I Note Principal Balance less the aggregate of all amounts
actually distributed pursuant to Section 3.03(b) hereof with respect to
principal thereon on all prior Payment Dates; provided, however, that solely for
purposes of determining the Note Insurer's rights, as subrogee, the Pool I Note
Principal Balance shall not be reduced by any principal amount paid to the Owner
thereof from Insured Payments.
"Pool I Overcollateralization Amount": As of any Payment Date, the
excess, if any, of (x) the aggregate Loan Balances of the Pool I Home Equity
Loans as of the close of business on the last day of the related Remittance
Period over (y) the Pool I Note Principal Balance for such Payment Date (after
taking into account the payment of the Pool I Principal Remittance Amount
available for payment on such Payment Date).
"Pool I Overcollateralization Deficiency Amount": With respect to Loan
Pool I and any Payment Date, the excess, if any, of (i) the Pool I Specified
Overcollateralization Amount for such Payment Date over (ii) the Pool I
Overcollateralization Amount applicable to such Payment Date.
"Pool I Overcollateralization Deficit": With respect to Pool I and any
Payment Date, the amount, if any, by which (x) the Pool I Note Principal Balance
after taking into account the payment of Pool I Principal Remittance Amount
exceeds (y) the Pool I Loan Balance as of the close of business on the last day
of the related Remittance Period.
"Pool I Overcollateralization Reduction Amount": With respect to Loan
Pool I and any Payment Date, an amount equal to the lesser of (x) the Pool I
Excess Overcollateralization Amount for such Payment Date and (y) the Pool I
Principal Remittance Amount for such Payment Date.
"Pool I Owner Trustee Fee": The fee payable annually on the Payment
Date in January beginning in January 1999 to the Owner Trustee, as provided in
the letter from the Owner Trustee to the Seller dated December 10, 1998.
"Pool I Premium Amount": The amount payable monthly to the Note Insurer
on each Payment Date in an amount equal to 0.25% per annum on the Pool I Note
Principal Balance as of the related Determination Date.
"Pool I Principal Remittance Amount": As of any Monthly Remittance
Date, the sum, without duplication, of (i) the principal actually collected by
the Servicer with respect to Pool I Home Equity Loans during the related
Remittance Period, (ii) the Loan Balance of each such Pool I Home Equity Loan
that was purchased from the Trust on or prior to such Monthly Remittance Date,
to the extent such Loan Balance was actually received by the Servicer, (iii) any
Substitution Amounts relating to principal delivered by the Seller in connection
with a substitution of a Pool I Home Equity Loan, to the extent such
Substitution Amounts were actually received by the Servicer on or prior to such
Monthly Remittance Date, (iv) the principal portion of all Net Liquidation
Proceeds actually collected by the Servicer with respect to such Pool I Home
Equity Loans during the related Remittance Period (to the extent such Net
Liquidation Proceeds related to principal), and (v) the amount of related
investment losses required to be deposited pursuant to Sections 3.05(e) and
4.08(b).
"Pool I Specified Overcollateralization Additional Amount": If the
Mortgage Portfolio Performance Test is satisfied, zero. Otherwise an amount
equal to the sum of (i) the Pool I Specified Overcollateralization Additional
Amount for the previous Payment Date and (ii) (a) in the event that the 60+
Delinquency Percentage (Rolling Six Month) is greater than 12.00% but less than
18.00% and clause (A)(y) and clause (A)(z) in the definition of Mortgage
Portfolio Performance Test are satisfied, a portion of the Pool I Limited Excess
Spread equal to the product of (1) such Pool I Limited Excess Spread and (2) a
fraction, the
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numerator of which is equal to the 60+ Delinquency Percentage (Rolling Six
Month) less 12.00% and the denominator of which is equal to 6.00%, provided that
such fraction shall not exceed 1.0; or (b) an amount equal to the Pool I Limited
Excess Spread.
"Pool I Specified Overcollateralization Amount": With respect to a
Payment Date the sum of (1) (x) prior to the Stepdown Date, the amount which is
equal to 3.40% of the Pool I Maximum Collateral Amount and (y) after the
Stepdown Date (i) if the Stepdown Requirement is satisfied, the lesser of (A)
the greater of (i) an amount equal to 6.80% of the then outstanding aggregate
Loan Balance of the Home Equity Loans and (ii) 0.50% of the Pool I Maximum
Collateral Amount and (B) an amount equal to 3.40% of the Pool I Maximum
Collateral Amount or (ii) if the Stepdown Requirement is not satisfied, the
amount which is equal to 3.40% of the Pool I Maximum Collateral Amount;
provided, however, that if on any Payment Date the Mortgage Portfolio
Performance Test is not satisfied, then unless such Payment Date is also a
Limited Release Date the Pool I Specified Overcollateralization Amount will be
unlimited during the period that the Mortgage Portfolio Performance is not
satisfied and (2) the Pool I Specified Overcollateralization Additional Amount.
"Pool II": The pool of Home Equity Loans identified in the related
Schedule IB as having been assigned to the Pool II, including any Qualified
Replacement Mortgages delivered in replacement thereof.
"Pool II Current Interest": With respect Pool II and any Payment Date,
an amount equal to the sum of (i) the amount of interest accrued during the
related Accrual Period at the Series 1998-7B Note Rate on the Pool II Note
Principal Balance immediately prior to such Payment Date, (ii) the related Carry
Forward Amount and (iii) any portion of the Preference Amount relating to
interest owed to the Owners of the Series 1998-7B Notes (which Preference Amount
will be paid in accordance with the Note Insurance Policy); provided, however,
such amount will be reduced by the amount of any Civil Relief Interest
Shortfalls relating to the Pool II Home Equity Loans.
"Pool II Excess Overcollateralization Amount": With respect to Loan
Pool II and a Payment Date, the excess, if any, of (x) the Pool II
Overcollateralization Amount that would apply on such Payment Date after taking
into account all payments to be made on such Payment Date (except for any
distributions of the Pool II Overcollateralization Reduction Amount on such
Payment Date), over (y) the Pool II Specified Overcollateralization Amount for
such Payment Date.
"Pool II Excess Spread": As to each Payment Date and Loan Pool II, the
amount on deposit in the Pool II Note Account after making the payments required
by Section 3.03(b)(i) - (iii) for such Loan Pool.
"Pool II Indenture": The Indenture, dated as of December 1, 1998
between the Issuer and the Indenture Trustee, relating to the issuance of the
Series 1998-7B Notes.
"Pool II Indenture Trustee Fee": The fee payable monthly to the
Indenture Trustee on each Payment Date in an amount equal to 0.00375% per annum,
on the outstanding aggregate Loan Balance of the Home Equity Loans in Pool II as
of the related Determination Date.
"Pool II Interest Remittance Amount": As of any Monthly Remittance
Date, the excess of (A) the sum, without duplication, of (i) all interest due
during the related Remittance Period with respect to the Pool II Home Equity
Loans, (ii) all Compensating Interest paid by the Servicer on such Monthly
Remittance Date with respect to the Pool II Home Equity Loans, (iii) the portion
of the Substitution Amount relating to interest on the Pool II Home Equity
Loans, (iv) the portion of any Loan Purchase Price relating to interest on any
Pool II Home Equity Loan repurchased during the related Remittance Period and
(v) the portion of Net Liquidation Proceeds relating to interest with respect to
the Pool II Home Equity Loans over (B) the
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Servicing Fee and other amounts reimbursable to, or withdrawable from the
Principal and Interest Account by the Servicer.
"Pool II Limited Excess Spread": For any Payment Date that is a Limited
Release Date, the amount of Pool II Excess Spread which would otherwise be
remaining after the distributions made pursuant to Section 3.03(b)(vii) for Loan
Pool II if the Pool II Specified Overcollateralization Amount did not increase
because of the operation of clause (ii)(a) of the definition of Pool II
Specified Overcollateralization Additional Amount.
"Pool II Maximum Collateral Amount": $71,000,000.
"Pool II Monthly Remittance Amount": As of any Remittance Date, the sum
of (i) the Pool II Interest Remittance Amount for such Remittance Date and the
Pool II Principal Remittance Amount for such Remittance Date.
"Pool II Note Account": The segregated trust account known as the "Pool
II Note Account" established in accordance with Section 3.2 hereof and
maintained by the Indenture Trustee at the Corporate Trust Office, provided that
the funds in such account shall not be commingled with any other funds held by
the Indenture Trustee.
"Pool II Note Principal Balance": As of any time of determination, the
Original Pool II Note Principal Balance less the aggregate of all amounts
actually distributed pursuant to Section 3.03(b) hereof with respect to
principal thereon on all prior Payment Dates; provided, however, that solely for
purposes of determining the Note Insurer's rights, as subrogee, the Pool II Note
Principal Balance shall not be reduced by any principal amount paid to the Owner
thereof from Insured Payments.
"Pool II Overcollateralization Amount": As of any Payment Date, the
excess, if any, of (x) the aggregate Loan Balances of the Pool II Home Equity
Loans as of the close of business on the last day of the related Remittance
Period over (y) the Pool II Note Principal Balance for such Payment Date (after
taking into account the payment of the Pool II Principal Remittance Amount
available for payment on such Payment Date.
"Pool II Overcollateralization Deficiency Amount": With respect to Loan
Pool II and any Payment Date, the excess, if any, of (i) the Pool II Specified
Overcollateralization Amount for such Payment Date over (ii) the Pool II
Overcollateralization Amount applicable to such Payment Date.
"Pool II Overcollateralization Deficit": With respect to Pool II and
any Payment Date, the amount, if any, by which (x) the Pool II Note Principal
Balance after taking into account the payment of the Pool II Principal
Remittance Amount to be made on such Payment Date exceeds (y) the Pool II Loan
Balance as of the close of business on the last day of the related Remittance
Period.
"Pool II Overcollateralization Reduction Amount": With respect to Loan
Pool II and any Payment Date, an amount equal to the lesser of (x) the Pool II
Excess Overcollateralization Amount for such Payment Date and (y) the Pool II
Principal Remittance Amount for such Payment Date.
"Pool II Owner Trustee Fee": The portion of fee payable annually on the
Payment Date in January beginning in January 1999 to the Owner Trustee, as
provided in the letter from the Owner Trustee to the Seller dated December 10,
1998.
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"Pool II Premium Amount": The amount payable monthly to the Note
Insurer on each Payment Date in an amount equal to 0.25% per annum on the Pool
II Note Principal Balance as of the related Determination Date.
"Pool II Principal Remittance Amount": As of any Monthly Remittance
Date, the sum, without duplication, of (i) the principal actually collected by
the Servicer with respect to Pool II Home Equity Loans during the related
Remittance Period, (ii) the Loan Balance of each such Pool II Home Equity Loan
that was purchased from the Trust on or prior to such Monthly Remittance Date,
to the extent such Loan Balance was actually received by the Servicer, (iii) any
Substitution Amounts relating to principal delivered by the Seller in connection
with a substitution of a Pool II Home Equity Loan, to the extent such
Substitution Amounts were actually received by the Servicer on or prior to such
Monthly Remittance Date, (iv) the principal portion of all Net Liquidation
Proceeds actually collected by the Servicer with respect to such Pool II Home
Equity Loans during the related Remittance Period (to the extent such Net
Liquidation Proceeds related to principal), and (v) the amount of related
investment losses required to be deposited pursuant to Sections 3.05(e) and
4.08(b).
"Pool II Specified Overcollateralization Additional Amount": If the
Mortgage Portfolio Performance Test is satisfied, zero. Otherwise an amount
equal to the sum of (i) the Pool II Specified Overcollateralization Additional
Amount for the previous Payment Date and (ii) (a) in the event that the 60+
Delinquency Percentage (Rolling Six Month) is greater than 12.00% but less than
18.00% and clause (A)(y) and clause (A)(z) in the definition of Mortgage
Portfolio Performance Test are satisfied, a portion of the Pool II Limited
Excess Spread equal to the product of (1) such Pool II Limited Excess Spread and
(2) a fraction, the numerator of which is equal to the 60+ Delinquency
Percentage (Rolling Six Month) less 12.00% and the denominator of which is equal
to 6.00%, provided that such fraction shall not exceed 1.0; or (b) an amount
equal to the Pool II Limited Excess Spread.
"Pool II Specified Overcollateralization Amount": With respect to a
Payment Date the sum of (1) (x) prior to the Stepdown Date, the amount which is
equal to 3.40% of the Pool II Maximum Collateral Amount and (y) after the
Stepdown Date (i) if the Stepdown Requirement is satisfied, the lesser of (A)
the greater of (i) an amount equal to 6.80% of the then outstanding aggregate
Loan Balance of the Home Equity Loans and (ii) 0.50% of the Pool II Maximum
Collateral Amount and (B) an amount equal to 3.40% of the Pool II Maximum
Collateral Amount or (ii) if the Stepdown Requirement is not satisfied, the
amount which is equal to 3.40% of the Pool II Maximum Collateral Amount;
provided, however, that if on any Payment Date the Mortgage Portfolio
Performance Test is not satisfied, then unless such Payment Date is also a
Limited Release Date the Pool II Specified Overcollateralization Amount will be
unlimited during the period that the Mortgage Portfolio Performance is not
satisfied and (2) the Pool II Specified Overcollateralization Additional Amount.
"Preference Amount": With respect to a series of Notes means, any
amounts of interest and principal included in previous distributions to the
Owners of the Notes which are recoverable and sought to be recovered as a
voidable preference by a indenture trustee in bankruptcy pursuant to the United
States Bankruptcy Code (11 U.S.C.) as amended from time to time in accordance
with a final, nonappealable order of a court having competent jurisdiction. Such
amount will be paid in accordance with the terms of the Note Insurance Policy.
"Preference Claim": As defined in Section 7.02(d) hereafter.
"Premium Amount": The Pool I Premium Amount or the Pool II Premium
Amount, as applicable.
"Prepayment": Any payment of principal of a Home Equity Loan which is
received by the Servicer in advance of the scheduled Due Date for the payment of
such principal and which is not accompanied by
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an amount of interest representing the full amount of scheduled interest due on
any Due Date in any month or months subsequent to the month of prepayment,
Substitution Amounts, the portion of the purchase price of any Home Equity Loan
purchased from the Trust pursuant to Section 2.03, 2.04, 2.06(b) or 4.10(b)
hereof representing principal and the proceeds of any Insurance Policy which are
to be applied as a payment of principal on the related Home Equity Loan shall be
deemed to be Prepayments for all purposes of this Agreement.
"Preservation Expenses": Expenditures made by the Servicer in
connection with a foreclosed Home Equity Loan prior to the liquidation thereof,
including, without limitation, expenditures for real estate property taxes,
hazard insurance premiums, property restoration or preservation.
"Principal and Interest Account": The principal and interest account
established and maintained by the Servicer pursuant to Section 4.08(a) hereof.
"Principal Remittance Amount": The Pool I Principal Remittance Amount
or the Pool II Principal Remittance Amount, as applicable.
"Property": The underlying property securing a Home Equity Loan.
"Prospectus": The Depositor's Prospectus dated May 29, 1998
constituting part of the Registration Statement.
"Prospectus Supplement": The IMC Home Equity Loan Owner Trust 1998-7
Prospectus Supplement dated December 2, 1998 to the Prospectus.
"Qualified Replacement Mortgage": A Home Equity Loan substituted for
another pursuant to Section 2.03, 2.04 and 2.06(b) hereof, which (i) has a
Coupon Rate at least equal to the Coupon Rate of the Home Equity Loan being
replaced; (ii) is of the same property type or is a single family dwelling and
the same occupancy status or is a primary residence as the Home Equity Loan
being replaced, (iii) shall mature no later than January 1, 2029, (iv) has a
Loan-to-Value Ratio as of the Replacement Cut-Off Date no higher than the
Loan-to-Value Ratio of the replaced Home Equity Loan at such time, (v) shall be
of the same or higher credit quality classification (determined in accordance
with the Seller's credit underwriting guidelines set forth in the Seller's
underwriting manual) as the Home Equity Loan which such Qualified Replacement
Mortgage replaces, (vi) shall be a First Mortgage Loan, (vii) has a Loan Balance
as of the related Replacement Cut-Off Date equal to or less than the Loan
Balance of the replaced Home Equity Loan as of such Replacement Cut-Off Date and
(viii) shall not provide for a "balloon" payment. In the event that one or more
home equity loans are proposed to be substituted for one or more Home Equity
Loans, the Note Insurer may allow the foregoing tests to be met on a weighted
average basis or other aggregate basis acceptable to the Note Insurer, as
evidenced by a written approval delivered to the Indenture Trustee by the Note
Insurer, except that the requirements of clauses (i) and (iv) hereof must be
satisfied as to each Qualified Replacement Mortgage.
"Rating Agencies": Collectively, Moody's and Standard & Poor's or any
successors thereto.
"Realized Loss": As to any Liquidated Loan (or, in the case of a Cram
Down Loss a Home Equity Loan that is not a Liquidated Loan), the amount (not
less than zero), if any, by which (A) the sum of (x) the Loan Balance thereof as
of the date of liquidation, (y) the amount of accrued but unpaid interest
thereon (to the extent that there are no outstanding advances for such interest
by the Servicer) and (z) the amount of any Cram Down Loss with respect thereto
is in excess of (B) the Net Liquidation Proceeds realized thereon applied in
reduction of such Loan Balance.
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"Redemption Date": With respect to a Series of Notes, the date such
Series of Notes are redeemed pursuant to Article X of the related Indenture.
"Redemption Price": The Redemption Price for a Series of Notes is equal
to the sum of (i) the then outstanding Note Principal Balance of such Series of
Notes plus all accrued and unpaid interest thereon to the related Redemption
Date, (ii) any portion of the Trust Fees and Expenses with respect to the
related Loan Pool due and unpaid on such date (as certified to the Indenture
Trustee by the Note Insurer with respect to the Premium Amount and by the Owner
Trustee with respect to the Owner Trustee Fee), (iii) any expenses incurred by
the Indenture Trustee in conducting the Auction Sale (and all previous auctions
for such Series of Notes), (iv) all amounts owed to the Note Insurer with
respect to the Insurance Agreement (including any amount owed on the unrelated
Loan Pool) as certified to the Indenture Trustee by the Note Insurer, (v) the
Auction Sale Reserve Deposit (vi) any unreimbursed Delinquency Advances and
Servicing Advances with respect to the related Loan Pool (as certified to the
Indenture Trustee by the Servicer).
"Register": The note register maintained by the Registrar in accordance
with Section 2.3 of the Indenture, in which the names of the Owners are set
forth.
"Registrar": The Indenture Trustee, acting in its capacity as Registrar
appointed pursuant to the Indenture, or any duly appointed and eligible
successor thereto.
"Registration Statement": The Registration Statement filed by the
Depositor with the Securities and Exchange Commission (Registration Number
333-48429), including all amendments thereto and including the Prospectus
relating to the Notes.
"Reimbursement Amount": As of any Payment Date, the sum of (x)(i) all
Insured Payments previously paid to the Indenture Trustee by the Note Insurer
and not previously repaid to the Note Insurer pursuant to Section 3.03(b)(vi)
plus (ii) interest accrued on each such Insured Payment not previously repaid
calculated at the Late Payment Rate and (y)(i) any amounts then due and owing to
the Note Insurer under the Insurance Agreement (including, without limitation,
any unpaid Premium Amount relating to such Payment Date or an earlier Payment
Date) plus (ii) interest on such amounts at the Late Payment Rate. The Note
Insurer shall notify the Indenture Trustee, the Depositor, the Seller and the
Servicer of the amount of any Reimbursement Amount.
"Remittance Period": With respect to each Monthly Remittance Date, the
period commencing the second day of the calendar month immediately preceding
such Monthly Remittance Date and ending the first day of the calendar month in
which such Monthly Remittance Date occurs.
"REO Property": A Property acquired by the Servicer on behalf of the
Trust through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Home Equity Loan.
"Replacement Cut-Off Date": With respect to any Qualified Replacement
Mortgage, the first day of the calendar month in which such Qualified
Replacement Mortgage is conveyed to the Trust.
"Reserve Account": The segregated trust account established and
maintained in accordance with Section 3.04 and entitled "The Chase Manhattan
Bank as Indenture Trustee for IMC Home Equity Loan Owner Trust 1998-7, Home
Equity Loan Asset Backed Notes, Series 1998-7A and 1998-7B, Reserve Account" on
behalf of the Owners of the Notes and the Note Insurer.
"Reserve Account Requirement": On any Payment Date for a Series of
Notes, the amount specified in Section 3.03(b)(ix) for such Series of Notes.
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"Schedules of Home Equity Loans": The schedules of Home Equity Loans
listing each Home Equity Loan to be conveyed on the Closing Date. Each Schedule
of Home Equity Loans shall identify each Home Equity Loan by the Servicer's loan
number, borrower's name and address (including the state and zip code) of the
Property and shall set forth as to each Home Equity Loan (a) the lien status,
(b) the Loan-to-Value Ratio as of the Cut-Off Date, (c) the Loan Balance as of
the Cut-Off Date, (d) the Coupon Rate at origination thereof, (e) the original
Loan Balance, (f) the scheduled monthly payment of principal and interest as of
the Closing Date, (g) the maturity date of the related Mortgage Note, (h) the
property type, (i) occupancy status, (j) Appraised Value, (k) the original
term-to-maturity thereof and (l) for adjustable rate Home Equity Loans: (1) the
maximum Coupon Rate, (2) the minimum Coupon Rate, (3) the index, (4) the gross
margin, (5) the lifetime rate cap, (6) the periodic rate cap, (7) the first
adjustment date and (8) the frequency of adjustment.
"Second Mortgage Loan": A Home Equity Loan which constitutes a second
priority mortgage lien with respect to the related Property.
"Securities Act": The Securities Act of 1933, as amended.
"Seller": IMC Mortgage Company, a Florida corporation.
"Senior Lien": With respect to any Second Mortgage Loan, the home
equity loan relating to the corresponding Property having a first priority lien.
"Series": A Series of the Issuer's Notes.
"Series 1998-7A Note Rate": 6.38% per annum; provided that on any
Payment Date after the Redemption Date for Pool I, the Series 1998-7A Note Rate
shall be 6.88% per annum.
"Series 1998-7A Notes": Any one of the Series 1998-7A Notes
substantially in the form attached to the Pool I Indenture as Exhibit A.
"Series 1998-7B Note Rate": 6.52% per annum; provided that on any
Payment Date after the Redemption Date for Pool II, the Series 1998-7B Note Rate
shall be 7.02% per annum.
"Series 1998-7B Notes": Any one of the Series 1998-7B Notes
substantially in the form attached to the Pool II Indenture as Exhibit A.
"Servicer": Ocwen Federal Bank FSB, a federal savings bank, and its
permitted successors and assigns.
"Servicer Loss Test": The Servicer Loss Test for any period set out
below is satisfied, if the Cumulative Loss Percentage for such period does not
exceed the percentage set out for such period below:
Cumulative Loss
Period Percentage
------ ----------
December 2, 1998 - December 1, 1999 1.00%
December 2, 1999 - December 1, 2000 1.75%
December 2, 2000 - December 1, 2001 2.50%
December 2, 2001 - December 1, 2002 3.25%
December 2, 2002 - and thereafter 4.00%
"Servicer Termination Event": As defined in Section 4.20(a) hereof.
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"Servicer Termination Test": The Servicer Termination Test is satisfied
for any date of determination thereof, if (x) the 60+ Delinquency Percentage
(Rolling Six Month) is less than 15.75%, (y) the Servicer Loss Test is satisfied
and (z) the Annual Loss Percentage (Rolling Twelve Month) for the twelve month
period immediately preceding the date of determination thereof is not greater
than 2.25%.
"Servicing Advance": As defined in Section 4.09(b) and Section 4.13(a)
hereof.
"Servicing Fee": With respect to any Home Equity Loan, an amount
retained by the Servicer as compensation for servicing and administration duties
relating to such Home Equity Loan pursuant to Section 4.15 and equal to one
month's interest at 0.50% per annum of the then outstanding principal balance of
such Home Equity Loan as of the first day of each Remittance Period payable on a
monthly basis.
"60-Day Delinquent Loan": With respect to any date of determination
thereof, means (without duplication) all REO Properties, Home Equity Loans in
foreclosure and each Home Equity Loan whether or not liquidated, with respect to
which any portion of a Monthly Payment is, as of the last day of the prior
Remittance Period, two months (calculated from Due Date with respect to such
Home Equity Loan to Due Date) or more past due (without giving effect to any
grace period).
"60+ Delinquency Percentage (Rolling Six Month)": With respect to any
date of determination thereof, the average of the percentage equivalents of the
fractions determined for each of the six immediately preceding Remittance
Periods the numerator of each of which is equal to the aggregate Loan Balance of
60- Day Delinquent Loans as of the end of such Remittance Period and the
denominator of which is the Loan Balance of all of the Home Equity Loans as of
the end of such Remittance Period.
"Specified Overcollateralization Amount": The Pool I Specified
Overcollateralization Amount or the Pool II Specified Overcollateralization
Amount, as applicable.
"Standard & Poor's": Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc. or any successor thereto.
"Stepdown Date": The Determination Date in January 2001.
"Stepdown Requirement": The Stepdown Requirement is satisfied on any
date of determination thereof if, as of such date of determination, either (A)
(x) the 60+ Delinquency Percentage (Rolling Six Month) is less than 11.25%, (y)
the Cumulative Loss Test is satisfied and (z) the Annual Loss Percentage
(Rolling Twelve Month) for the twelve month period immediately preceding the
date of determination thereof is not greater than or equal to 1.00% or (B) the
Note Insurer by notice to each of the parties hereto in accordance with Section
6.12, expressly waives compliance with the foregoing tests for such date of
determination.
"Sub-Servicer": Any Person with whom the Servicer has entered into a
Sub-Servicing Agreement and who satisfies any requirements set forth in Section
4.03 hereof in respect of the qualification of a Sub-Servicer.
"Sub-Servicing Agreement": The written contract between the Servicer
and any Sub-Servicer relating to servicing and/or administration of certain Home
Equity Loans as permitted by Section 4.03.
"Substitution Amount": As defined in Section 2.03 hereof.
"Total Available Funds": As to each Payment Date and Loan Pool, the sum
of (x) the amount on deposit in both Note Accounts on such Payment Date
(disregarding the amount of any related Insured
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Payment to be made on such Payment Date) and (y) the amount on deposit in the
Reserve Account less the Trust Fees and Expenses.
"Trust" or "Issuer": IMC Home Equity Loan Owner Trust 1998-7, a
Delaware business trust.
"Trust Agreement": The Owner Trust Agreement dated as of December 1,
1998 between the Depositor and the Owner Trustee.
"Trust Estate": With respect to a Series of Notes, as defined in the
related Indenture.
"Trust Fees and Expenses": As of each Payment Date, an amount equal to
the Premium Amount, the Owner Trustee Fee, the Indenture Trustee Fee and any
Indenture Trustee Reimbursable Expenses.
"Underwriter": PaineWebber Incorporated.
Section 1.02 Use of Words and Phrases.
"Herein", "hereby", "hereunder", "hereof", "hereinbefore",
"hereinafter" and other equivalent words refer to this Agreement as a whole and
not solely to the particular section of this Agreement in which any such word is
used. The definitions set forth in Section 1.01 hereof include both the singular
and the plural. Whenever used in this Agreement, any pronoun shall be deemed to
include both singular and plural and to cover all genders.
Section 1.03 Captions; Table of Contents.
The captions or headings in this Agreement and the Table of Contents
are for convenience only and in no way define, limit or describe the scope and
intent of any provisions of this Agreement.
Section 1.04 Opinions.
Each opinion with respect to the validity, binding nature and
enforceability of documents or Notes may be qualified to the extent that the
same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether considered in a
proceeding or action in equity or at law) and may state that no opinion is
expressed on the availability of the remedy of specific enforcement, injunctive
relief or any other equitable remedy. Any opinion required to be furnished by
any Person hereunder must be delivered by counsel upon whose opinion the
addressee of such opinion may reasonably rely, and such opinion may state that
it is given in reasonable reliance upon an opinion of another, a copy of which
must be attached, concerning the laws of a foreign jurisdiction. Any opinion
delivered hereunder shall be addressed to the Rating Agencies, the Note Insurer
and the Indenture Trustee.
END OF ARTICLE I
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE DEPOSITOR, THE SERVICER AND THE SELLER;
COVENANT OF DEPOSITOR TO CONVEY HOME EQUITY LOANS
Section 2.01 Representations and Warranties of the Depositor.
The Depositor hereby represents, warrants and covenants to the
Indenture Trustee, the Owner Trustee, the Issuer, the Seller, the Servicer, the
Note Insurer and the Owners that as of the Closing Date:
(a) The Depositor is a corporation duly organized and validly existing
and in good standing under the laws governing its creation and existence and is
in good standing as a foreign corporation in each jurisdiction in which the
nature of its business, or the properties owned or leased by it make such
qualification necessary. The Depositor has all requisite corporate power and
authority to own and operate its properties, to carry out its business as
presently conducted and as proposed to be conducted and to enter into and
discharge its obligations under this Agreement and the other Operative Documents
to which it is a party.
(b) The execution and delivery of this Agreement and the other
Operative Documents to which it is a party by the Depositor and its performance
and compliance with the terms of this Agreement and the other Operative
Documents to which it is a party have been duly authorized by all necessary
corporate action on the part of the Depositor and will not violate the
Depositor's Certificate of Incorporation, or Bylaws or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in a breach of, any material contract, agreement or
other instrument to which the Depositor is a party or by which the Depositor is
bound or violate any statute or any order, rule or regulation of any court,
governmental agency or body or other tribunal having jurisdiction over the
Depositor or any of its properties.
(c) This Agreement and the other Operative Documents to which the
Depositor is a party, assuming due authorization, execution and delivery by the
other parties hereto and thereto, each constitutes a valid, legal and binding
obligation of the Depositor, enforceable against it in accordance with the terms
hereof and thereof, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(d) The Depositor is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which default would materially and adversely affect the
condition (financial or other) or operations of the Depositor or its properties
or the consequences of which would materially and adversely affect its
performance hereunder and under the other Operative Documents to which the
Depositor is a party.
(e) No litigation is pending with respect to which the Depositor has
received service of process or, to the best of the Depositor's knowledge,
threatened against the Depositor which litigation might have consequences that
would prohibit its entering into this Agreement or any other Operative Documents
to which it is a party or that would materially and adversely affect the
condition (financial or otherwise) or operations of the Depositor or its
properties or might have consequences that would materially and adversely affect
its performance hereunder and under the other Operative Documents to which the
Depositor is a party.
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(f) No certificate of an officer, statement furnished in writing or
report delivered pursuant to the terms hereof by the Depositor contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the certificate, statement or report not misleading.
(g) The statements contained in the Registration Statement which
describe the Depositor or matters or activities for which the Depositor is
responsible in accordance with the Operative Documents or which are attributable
to the Depositor therein are true and correct in all material respects, and the
Registration Statement does not contain any untrue statement of a material fact
with respect to the Depositor required to be stated therein or necessary to make
the statements contained therein with respect to the Depositor, in light of the
circumstances under which they were made, not misleading. The Registration
Statement does not contain any untrue statement of a material fact required to
be stated therein or omit to state any material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading. There is no fact known to the Depositor that
materially adversely affects or in the future may (so far as the Depositor can
now reasonably foresee) materially adversely affect the Depositor or the Home
Equity Loans that has not been set forth in the Registration Statement.
(h) Neither the Owner Trustee nor the Depositor has any obligation to
register the Trust as an investment company under the Investment Company Act of
1940, as amended.
(i) All actions, approvals, consents, waivers, exemptions, variances,
franchises, orders, permits, authorizations, rights and licenses required to be
taken, given or obtained, as the case may be, by or from any federal, state or
other governmental authority or agency (other than any such actions, approvals,
etc. under any state or federal securities laws, real estate syndication or
"Blue Sky" statutes, as to which the Depositor makes no such representation or
warranty), that are necessary or advisable in connection with the purchase and
sale of the Notes and the execution and delivery by the Depositor of the
Operative Documents to which it is a party, have been duly taken, given or
obtained, as the case may be, are in full force and effect on the date hereof,
are not subject to any pending proceedings or appeals (administrative, judicial
or otherwise) and either the time within which any appeal therefrom may be taken
or review thereof may be obtained has expired or no review thereof may be
obtained or appeal therefrom taken, and are adequate to authorize the
consummation of the transactions contemplated by this Agreement and the other
Operative Documents on the part of the Depositor and the performance by the
Depositor of its obligations under this Agreement and such of the other
Operative Documents to which it is a party.
(j) The transactions contemplated by this Agreement are in the ordinary
course of business of the Depositor.
(k) The Depositor has received fair consideration and reasonably
equivalent value in exchange for the sale of its interest in the Home Equity
Loans.
(l) The Depositor did not sell any interest in any Home Equity Loan
with an intent to hinder, delay or defraud any of its creditors.
(m) The Depositor is not insolvent, nor will it be made insolvent by
the sale of the Home Equity Loans, nor is the Depositor aware of any pending
insolvency.
(n) On the Closing Date, the Issuer will have good title to each Home
Equity Loan and such other items comprising the Trust Estate free and clear of
any lien.
(o) No material adverse change affecting any security for the Notes has
occurred prior to delivery of and payment for the Notes.
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(p) The Depositor is not in default under any agreement involving
financial obligations or on any outstanding obligation which would materially
adversely impact the financial condition or operations of the Depositor or legal
documents associated with the transaction contemplated by this Agreement.
(q) To the best knowledge of the Depositor, there has been no material
adverse change in any information submitted by the Depositor in writing to the
Note Insurer with respect to the transactions contemplated by this Agreement
(unless such information was subsequently supplemented in writing).
It is understood and agreed that the representations and warranties set
forth in this Section 2.01 shall survive delivery of the respective Home Equity
Loans to the Issuer.
Upon discovery by any of the Depositor, the Issuer, the Seller, the
Servicer, the Custodian, any Sub-Servicer, the Note Insurer, any Owner or the
Indenture Trustee (each, for purposes of this paragraph, a party) of a breach of
any of the representations and warranties set forth in this Section 2.01 which
materially and adversely affects the interests of the Owners or of the Note
Insurer, the party discovering such breach shall give prompt written notice to
the other parties. As promptly as practicable, but in any event, within 60 days
of its discovery or its receipt of notice of breach, the Depositor shall cure
such breach in all material respects; provided, however, that if the Depositor
can establish to the reasonable satisfaction of the Note Insurer that it is
diligently pursuing remedial action, then the cure period may be extended for an
additional 90 days with the written approval of the Note Insurer.
Section 2.02 Representations and Warranties of the Servicer.
The Servicer hereby represents, warrants and covenants to the
Depositor, the Issuer, the Seller, the Owner Trustee, the Indenture Trustee, the
Note Insurer and the Owners that as of the Closing Date:
(a) The Servicer is a federal savings bank duly organized and validly
existing and in good standing under the laws of the United States of America, is
in compliance with the laws of each state in which any Property is located to
the extent necessary to enable it to perform its obligations hereunder and is in
good standing in each jurisdiction in which the nature of its business, or the
properties owned or leased by it make such qualification necessary. The Servicer
has all requisite power and authority to own and operate its properties, to
carry out its business as presently conducted and as proposed to be conducted
and to enter into and discharge its obligations under this Agreement and the
other Operative Documents to which the Servicer is a party.
(b) The execution and delivery of this Agreement and any other
Operative Document to which it is a party by the Servicer and its performance
and compliance with the terms hereof and thereof have been duly authorized by
all necessary action on the part of the Servicer and will not (i) violate the
Servicer's charter or bylaws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any material contract, agreement or other instrument to which
the Servicer is a party or by which the Servicer is bound or (ii) violate any
statute or any order, rule or regulation of any court, governmental agency or
body or other tribunal having jurisdiction over the Servicer or any of its
properties, which in the case of either clause (i) or (ii) will have a material
adverse effect on the Servicer's ability to perform its obligations under this
Agreement or any other Operative Document to which it is a party.
(c) This Agreement and the Operative Documents to which the Servicer is
a party, assuming due authorization, execution and delivery by the other parties
hereto and thereto, each constitutes a valid, legal and binding obligation of
the Servicer, enforceable against it in accordance with the terms hereof and
thereof, except as the enforcement hereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
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(d) The Servicer is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which might have consequences that would materially and
adversely affect the condition (financial or otherwise) or operations of the
Servicer or its properties or will have consequences that would materially and
adversely affect its performance hereunder or under the other Operative
Documents to which the Servicer is a party.
(e) No litigation is pending with respect to which the Servicer has
received service of process or, to the best of the Servicer's knowledge,
threatened against the Servicer which litigation might have consequences that
would prohibit its entering into this Agreement or any other Operative Document
or that would materially and adversely affect the condition (financial or
otherwise) or operations of the Servicer or its properties or might have
consequences that would materially and adversely affect the validity or the
enforceability of the Home Equity Loans or its performance hereunder and the
other Operative Documents to which the Servicer is a party.
(f) No certificate of an officer, statement furnished in writing or
report delivered pursuant to the terms hereof by the Servicer contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the certificate, statement or report not misleading.
(g) The statements contained in the Prospectus Supplement in the third
and fourth paragraphs under the heading "The Servicer -- General" and under the
heading "The Servicer -- Delinquency, Loan Loss and Foreclosure Information" are
true and correct in all material respects, and such statements do not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
(h) All actions, approvals, consents, waivers, exemptions, variances,
franchises, orders, permits, authorizations, rights and licenses required to be
taken, given or obtained, as the case may be, by or from any federal, state or
other governmental authority or agency (other than any such actions, approvals,
etc. under any state securities laws, real estate syndication or "Blue Sky"
statutes, as to which the Servicer makes no such representation or warranty),
that are necessary or advisable in connection with the execution and delivery by
the Servicer of the Operative Documents to which it is a party, have been duly
taken, given or obtained, as the case may be, are in full force and effect on
the date hereof, are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and either the time within which any
appeal therefrom may be taken or review thereof may be obtained has expired or
no review thereof may be obtained or appeal therefrom taken, and are adequate to
authorize the consummation of the transactions contemplated by this Agreement
and the other Operative Documents on the part of the Servicer and the
performance by the Servicer of its obligations under this Agreement and such of
the other Operative Documents to which it is a party.
(i) The transactions contemplated by this Agreement are in the ordinary
course of business of the Servicer.
(j) To the best knowledge of the Servicer, there has been no material
adverse change in any information submitted by the Servicer in writing to the
Note Insurer with respect to the transactions contemplated by this Agreement
(unless such information was subsequently supplemented in writing).
It is understood and agreed that the representations and warranties set
forth in this Section 2.02 shall survive delivery of the Home Equity Loans to
the Issuer.
Upon discovery by any of the Servicer, the Depositor, the Seller, the
Issuer, the Custodian, any Sub-Servicer, the Note Insurer, any Owner or the
Indenture Trustee (each, for purposes of this paragraph, a party) of a breach of
any of the representations and warranties set forth in this Section 2.02 which
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materially and adversely affects the interests of the Owners or of the Note
Insurer, the party discovering such breach shall give prompt written notice to
the other parties. As promptly as practicable, but in any event, within 60 days
of its discovery or its receipt of notice of breach, the Servicer shall cure
such breach in all material respects and, upon the Servicer's continued failure
to cure such breach, may thereafter be removed by the Note Insurer or by the
Indenture Trustee with the written consent of the Note Insurer pursuant to
Section 4.20 hereof; provided, however, that if the Servicer can establish to
the reasonable satisfaction of the Note Insurer that it is diligently pursuing
remedial action, then the cure period may be extended for an additional 90 days
with the written approval of the Note Insurer.
Section 2.03 Representations and Warranties of the Seller.
The Seller hereby represents, warrants and covenants to the Servicer,
the Issuer, the Depositor, the Owner Trustee, the Indenture Trustee, the Note
Insurer and the Owners that as of the Closing Date:
(a) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida and is in good standing in
each jurisdiction in which the nature of its business, or the properties owned
or leased by it make such qualification necessary. The Seller has all requisite
authority to own and operate its properties, to carry out its business as
presently conducted and as proposed to be conducted and to enter into and
discharge its obligations under this Agreement and the other Operative Documents
to which it is a party.
(b) The execution and delivery of this Agreement and the other
Operative Documents to which it is a party by the Seller and its performance and
compliance with the terms of this Agreement and the other Operative Documents to
which it is a party have been duly authorized by all necessary corporate action
on the part of the Seller and will not violate the Seller's Articles of
Incorporation and Bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in a
breach of, any material contract, agreement or other instrument to which the
Seller is a party or by which the Seller is bound or violate any statute or any
order, rule or regulation of any court, governmental agency or body or other
tribunal having jurisdiction over the Seller or any of its properties.
(c) This Agreement and the other Operative Documents to which the
Seller is a party, assuming due authorization, execution and delivery by the
other parties hereto and thereto, each constitutes a valid, legal and binding
obligation of the Seller, enforceable against it in accordance with the terms
hereof and thereof, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(d) The Seller is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default would materially and adversely affect the
condition (financial or other) or operations of the Seller or its properties or
the consequences of which would materially and adversely affect its performance
hereunder and under the other Operative Documents to which the Seller is a
party.
(e) No litigation is pending with respect to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which litigation might have consequences that
would prohibit its entering into this Agreement or any other Operative Documents
to which it is a party or that would materially and adversely affect the
condition (financial or otherwise) or operations of the Seller or its properties
or might have consequences that would materially and adversely affect its
performance hereunder and under the other Operative Documents to which the
Seller is a party.
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(f) No certificate of an officer, statement furnished in writing or
report delivered pursuant to the terms hereof by the Seller contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the certificate, statement or report not misleading.
(g) The statements contained in the Prospectus Supplement which
describe the Seller or matters or activities for which the Seller is responsible
in accordance with the Operative Documents or which are attributable to the
Seller therein are true and correct in all material respects, and the Prospectus
Supplement does not contain any untrue statement of a material fact with respect
to the Seller required to be stated therein or necessary to make the statements
contained therein with respect to the Seller, in light of the circumstances
under which they were made, not misleading. The Prospectus Supplement does not
contain any untrue statement of a material fact required to be stated therein or
omit to state any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading. There is no fact known to the Seller that materially adversely
affects or in the future may (so far as the Seller can now reasonably foresee)
materially adversely affect the Seller or the Home Equity Loans that has not
been set forth in the Prospectus Supplement.
(h) Upon the receipt of each Home Equity Loan (including the related
Mortgage Note) and other items of the Trust Estate by the Indenture Trustee, the
Issuer will have good title to such Home Equity Loan (including the related
Mortgage Note) and such other items of the Trust Estate free and clear of any
lien, charge, mortgage, encumbrance or rights of others, except as set forth in
Section 2.04(b)(ix) (other than liens which will be simultaneously released (and
except for the lien of the Indenture)).
(i) Neither the Seller nor any affiliate thereof will report on any
financial statement any part of the Servicing Fee as an adjustment to the sales
price of the Home Equity Loans.
(j) All actions, approvals, consents, waivers, exemptions, variances,
franchises, orders, permits, authorizations, rights and licenses required to be
taken, given or obtained, as the case may be, by or from any federal, state or
other governmental authority or agency (other than any such actions, approvals,
etc. under any state securities laws, real estate syndication or "Blue Sky"
statutes, as to which the Seller makes no such representation or warranty), that
are necessary or advisable in connection with the purchase and sale of the Notes
and the execution and delivery by the Seller of the Operative Documents to which
it is a party, have been duly taken, given or obtained, as the case may be, are
in full force and effect on the date hereof, are not subject to any pending
proceedings or appeals (administrative, judicial or otherwise) and either the
time within which any appeal therefrom may be taken or review thereof may be
obtained has expired or no review thereof may be obtained or appeal therefrom
taken, and are adequate to authorize the consummation of the transactions
contemplated by this Agreement and the other Operative Documents on the part of
the Seller and the performance by the Seller of its obligations under this
Agreement and such of the other Operative Documents to which it is a party.
(k) The origination practices used by the Seller with respect to the
Home Equity Loans have been, in all material respects, legal, proper, prudent
and customary in the mortgage lending business.
(l) The transactions contemplated by this Agreement are in the ordinary
course of business of the Seller.
(m) Neither the Owner Trustee nor the Seller has any obligation to
register the Trust as an investment company under the Investment Company Act of
1940, as amended.
(n) The Seller is not insolvent, nor will it be made insolvent by the
transfer of the Home Equity Loans or the transfer of the servicing rights
relating to the Home Equity Loans to the Servicer, nor is the Seller aware of
any pending insolvency.
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(o) The Seller received fair consideration and reasonably equivalent
value in exchange for the sale of the interests in the Home Equity Loans and for
the transfer of the servicing rights relating to the Home Equity Loans to the
Servicer.
(p) The Seller did not sell any interest in any Home Equity Loan or the
servicing rights relating to the Home Equity Loans with any intent to hinder,
delay or defraud any of its creditors.
(q) No material adverse change affecting any security for the Notes has
occurred prior to delivery of and payment for the Notes.
(r) The Seller is not in default under any agreement involving
financial obligations or on any outstanding obligation which would materially
adversely impact the financial condition or operations of the Seller or legal
documents associated with the transaction contemplated by this Agreement.
(s) To the best knowledge of the Seller, there has been no material
adverse change in any information submitted by the Seller in writing to the Note
Insurer with respect to the transactions contemplated by this Agreement (unless
such information was subsequently supplemented in writing).
(t) The Seller agrees to indemnify the Owner Trustee in accordance with
Section 8.2 of the Trust Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03 shall survive delivery of the respective Home Equity
Loans to the Indenture Trustee.
Upon discovery by any of the Issuer, the Depositor, the Servicer, the
Custodian, any Sub-Servicer, any Owner, the Seller, the Note Insurer or the
Indenture Trustee (each, for purposes of this paragraph, a "party") of a breach
of any of the representations and warranties set forth in this Section 2.03
which materially and adversely affects the interests of the Owners or the
interests of the Note Insurer, the party discovering such breach shall give
prompt written notice to the other parties. The Seller hereby covenants and
agrees that within 60 days of its discovery or its receipt of notice of breach,
it shall cure such breach in all material respects or, with respect to a breach
of clause (h) above, the Seller may (or may cause an affiliate of the Seller to)
on or prior to the second Monthly Remittance Date next succeeding such discovery
or receipt of notice (i) substitute in lieu of any Home Equity Loan not in
compliance with clause (h) a Qualified Replacement Mortgage and, if the
outstanding principal amount of such Qualified Replacement Mortgage as of the
applicable Replacement Cut-Off Date is less than the Loan Balance of such Home
Equity Loan as of such Replacement Cut-Off Date, deliver an amount (a
"Substitution Amount") equal to such difference together with the aggregate
amount of (A) all Delinquency Advances and Servicing Advances theretofore made
with respect to such Home Equity Loan and (B) all Delinquency Advances which the
Servicer has theretofore failed to remit with respect to such Home Equity Loan
to the Servicer for deposit in the Principal and Interest Account or (ii)
purchase such Home Equity Loan from the Issuer at the Loan Purchase Price, which
purchase price shall be delivered to the Servicer for deposit in the Principal
and Interest Account. The Seller shall deliver an Officer's Certificate to the
Indenture Trustee and the Note Insurer concurrently with the delivery of a
Qualified Replacement Mortgage pursuant to Sections 2.03, 2.04 and 2.06 stating
that such Home Equity Loan meets the requirements of the definition of a
Qualified Replacement Mortgage, that such Home Equity Loan conforms to the
representations and warranties set out in Section 2.03 and that all other
conditions to the substitution thereof have been satisfied. Any Home Equity Loan
as to which repurchase or substitution was delayed pursuant to this Section
shall be repurchased or substituted for (subject to compliance with Section
2.03, 2.04 or 2.06, as the case may be) upon the occurrence of a default or
imminent default with respect to such Home Equity Loan.
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Section 2.04 Covenants of Seller to Take Certain Actions with Respect
to the Home Equity Loans in Certain Situations.
(a) Upon the discovery by the Issuer, the Depositor, the Seller, the
Servicer, the Note Insurer, any Sub-Servicer, any Owner, the Custodian or the
Indenture Trustee that the representations and warranties set forth in clause
(b) below were untrue in any material respect as of the Closing Date with the
result that the interests of the Owners or of the Note Insurer are materially
and adversely affected, the party discovering such breach shall give prompt
written notice to the other parties. Upon the earliest to occur of the Seller's
discovery, its receipt of notice of breach from any one of the other parties or
such time as a situation resulting from an existing statement which is untrue
materially and adversely affects the interests of the Owners or of the Note
Insurer, the Seller hereby covenants and warrants that it shall promptly cure
such breach in all material respects or subject to the last three sentences of
Section 2.03 it shall on or before the second Monthly Remittance Date next
succeeding such discovery, receipt of notice or such time (i) substitute in lieu
of each Home Equity Loan which has given rise to the requirement for action by
the Seller a Qualified Replacement Mortgage and deliver the Substitution Amount
to the Servicer for deposit in the Principal and Interest Account or (ii)
purchase such Home Equity Loan from the Trust at a purchase price equal to the
Loan Purchase Price thereof, which purchase price shall be delivered to the
Servicer for deposit in the Principal and Interest Account; provided, however,
that if the Seller can establish to the reasonable satisfaction of the Note
Insurer that it is diligently pursuing remedial action, the period of time in
which the Seller must substitute a Qualified Replacement Mortgage or purchase
such Home Equity Loan may be extended for an additional 30 days with the written
approval of the Note Insurer. It is understood and agreed that the obligation of
the Seller so to substitute or purchase any Home Equity Loan as to which such a
statement set forth below is untrue in any material respect and has not been
remedied shall constitute the sole remedy respecting a discovery of any such
statement which is untrue in any material respect in this Section 2.04 available
to the Owners and the Indenture Trustee.
(b) The Seller hereby represents, warrants and covenants to the
Indenture Trustee, the Issuer, the Servicer, the Note Insurer and the Owners
that as of the Closing Date:
(i) The information with respect to each Home Equity Loan set
forth in the related Schedule of Home Equity Loans is true and
correct as of the Cut-Off Date;
(ii) All the original or certified documentation set forth in
Section 2.05 (including all material documents related thereto) with
respect to each Home Equity Loan has been or will be delivered to
the Custodian on behalf of the Indenture Trustee on the Closing Date
or as otherwise provided in Section 2.05;
(iii) Each Home Equity Loan being transferred to the Trust is
secured by a Mortgage;
(iv) Each Property is improved by a single (one-to-four)
family residential dwelling (except for 4.30% and 3.03% of the Home
Equity Loans in the amounts of $22,736,450.08 and $2,150,586.72 in
Pool I and Pool II, respectively, that are condominiums, planned
unit developments, townhouses, manufactured housing, or multifamily
residential), provided that no more than 1.55% of the Properties in
Pool I are secured by manufactured homes, each of which is
considered to be real property under the applicable local law;
(v) As of the Cut-Off Date, no Home Equity Loan has a
Loan-to-Value Ratio in excess of 90%, except for 2.05% and 3.89%
Home Equity Loans in the amounts of $10,834,439.56 and $2,764,014.19
in Pool I and Pool II, respectively, that had a Loan-to-Value Ratio
not greater than 100%;
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(vi) Each Home Equity Loan is being serviced by the Servicer
in accordance with the terms of this Agreement;
(vii) The Mortgage Note related to each Pool I Home Equity
Loan bears a Coupon Rate of at least 6.00% per annum and the
Mortgage Note related to each Pool II Home Equity Loan bears a
Coupon Rate of at least 6.625% per annum;
(viii) Each Mortgage Note with respect to the Home Equity
Loans will provide for a schedule of substantially level and equal
Monthly Payments which are sufficient to amortize fully the
principal balance of such Mortgage Note on or before its maturity
date except for 1,825 and 109 Home Equity Loans in Pool I and Pool
II, respectively, in the amounts of $131,164,853.34 and
$23,237,691.33 representing 24.79% and 32.73% of the aggregate Loan
Balance of the Home Equity Loans in Pool I and Pool II,
respectively, as of the Cut-Off Date, which may provide for a
"balloon" payment due at the end up to the 20th year;
(ix) As of the Closing Date, each Mortgage is a valid and
subsisting first or second lien of record (or is in the process of
being recorded) on the Property subject in the case of any Second
Mortgage Loan only to a Senior Lien on such Property as noted on
Schedule I attached hereto subject, in all cases, to the exceptions
to title set forth in the title insurance policy or attorney's
opinion of title, with respect to the related Home Equity Loan,
which exceptions are generally acceptable to banking institutions in
connection with their regular mortgage lending activities, and such
other exceptions to which similar properties are commonly subject
and which do not individually, or in the aggregate, materially and
adversely affect the benefits of the security intended to be
provided by such Mortgage;
(x) Immediately prior to the transfer and assignment of the
Home Equity Loans by the Seller to the Depositor and by the
Depositor to the Issuer herein contemplated, the Seller and the
Depositor, as the case may be, held good and indefeasible title to,
and was the sole owner of, each Home Equity Loan (including the
related Mortgage Note) subject to no liens, charges, mortgages,
encumbrances or rights of others except as set forth in clause (ix)
or other liens which will be released simultaneously with such
transfer and assignment; and immediately upon the transfer and
assignment herein contemplated, the Issuer will hold good and
indefeasible title to, and be the sole owner of, each Home Equity
Loan subject to no liens, charges, mortgages, encumbrances or rights
of others except as set forth in paragraph (ix) or other liens which
will be released simultaneously with such transfer and assignment
and except for the lien of the Indenture;
(xi) As of the opening of business on the Cut-Off Date, no
Home Equity Loan is 30 days or more Delinquent except that there are
4.58%and 3.20% Home Equity Loans with an outstanding aggregate Loan
Balance of $24,233,202.76 and $2,274,900.94 in Pool I and Pool II,
respectively, that are 30 or more days Delinquent but not more than
59 days Delinquent and there are 0.80% and 0.14% Home Equity Loans
with an aggregate loan balance of $4,217,080.24 and $97,958.45 in
Pool I and Pool II, respectively, that are 60 or more days
Delinquent but not more than 89 days Delinquent;
(xii) There is no delinquent tax or assessment lien on any
Property, and each Property is free of substantial damage and is in
good repair;
(xiii) There is no valid and enforceable offset, defense or
counterclaim to any Mortgage Note or Mortgage, including the
obligation of the related Mortgagor to pay the unpaid principal of
or interest on such Mortgage Note;
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(xiv) There is no mechanics' lien or claim for work, labor or
material affecting any Property which is or may be a lien prior to,
or equal with, the lien of the related Mortgage except those which
are insured against by any title insurance policy referred to in
paragraph (xvi) below;
(xv) Each Home Equity Loan at the time it was made complied in
all material respects with applicable state and federal laws and
regulations, including, without limitation, the federal
Truth-in-Lending Act (as amended by the Riegle Community Development
and Regulatory Improvement Act of 1994) and other consumer
protection laws, usury, equal credit opportunity, disclosure and
recording laws;
(xvi) With respect to each Home Equity Loan either (a) an
attorney's opinion of title has been obtained but no lender's title
insurance policy has been obtained, or (b) a lender's title
insurance policy, issued in standard American Land Title Association
form by a title insurance company authorized to transact business in
the state in which the related Property is situated, in an amount at
least equal to the original balance of such Home Equity Loan
together, in the case of a Second Mortgage Loan, with the
then-original principal amount of the mortgage note relating to the
Senior Lien, insuring the mortgagee's interest under the related
Home Equity Loan as the holder of a valid first or second mortgage
lien of record on the real property described in the related
Mortgage, as the case may be, subject only to exceptions of the
character referred to in paragraph (ix) above, was effective on the
date of the origination of such Home Equity Loan, and, as of the
Closing Date, such policy is valid and thereafter such policy shall
continue in full force and effect (provided that an attorney's
opinion of title without a lender's title insurance policy has been
obtained with respect to no more than 2% of the Original Aggregate
Loan Balance);
(xvii) The improvements upon each Property are covered by a
valid and existing hazard insurance policy with a carrier generally
acceptable to the Servicer that provides for fire and extended
coverage representing coverage not less than the least of (A) the
outstanding principal balance of the related Home Equity Loan
(together, in the case of a Second Mortgage Loan, with the
outstanding principal balance of the Senior Lien), (B) the minimum
amount required to compensate for damage or loss on a replacement
cost basis or (C) the full insurable value of the Property;
(xviii) If any Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as
having special flood hazards, a flood insurance policy in a form
meeting the requirements of the current guidelines of the Flood
Insurance Administration is in effect with respect to such Property
with a carrier generally acceptable to the Servicer in an amount
representing coverage not less than the least of (A) the outstanding
principal balance of the related Home Equity Loan (together, in the
case of a Second Mortgage Loan, with the outstanding principal
balance of the Senior Lien), (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis or (C) the
maximum amount of insurance that is available under the Flood
Disaster Protection Act of 1973;
(xix) Each Mortgage and Mortgage Note are the legal, valid and
binding obligation of the maker thereof and are enforceable in
accordance with their terms, except only as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether considered in
a proceeding or action in equity or at law), and all parties to each
Home Equity Loan had full legal capacity to execute all documents
relating to such Home Equity Loan and convey the estate therein
purported to be conveyed;
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(xx) The Seller has caused and will cause to be performed any
and all acts required to be performed to preserve the rights and
remedies of the Indenture Trustee in any Insurance Policies
applicable to any Home Equity Loans delivered by the Seller
including, without limitation, any necessary notifications of
insurers, assignments of policies or interests therein, and
establishments of co-insured, joint loss payee and mortgagee rights
in favor of the Indenture Trustee;
(xxi) As of the Closing Date, no more than 0.28% and 1.31% of
the aggregate Loan Balance of the Home Equity Loans in Pool I and
Pool II, respectively, will be secured by Properties located within
any single zip code area;
(xxii) Each original Mortgage was recorded or is in the
process of being recorded, and all subsequent assignments of the
original Mortgage have been delivered for recordation or have been
recorded in the appropriate jurisdictions wherein such recordation
is necessary to perfect the lien thereof as against creditors of or
purchasers from the Seller (or, subject to Section 2.05 hereof, are
in the process of being recorded); each Mortgage and assignment of
Mortgage is in recordable form and is acceptable for recording under
the laws of the jurisdiction in which the property securing such
Mortgage is located;
(xxiii) The terms of each Mortgage Note and each Mortgage have
not been impaired, altered or modified in any respect, except by a
written instrument which has been recorded, if necessary, to protect
the interest of the Owners and the Note Insurer and which has been
delivered to the Indenture Trustee. The substance of any such
alteration or modification is reflected on the related Schedule of
Home Equity Loans;
(xxiv) The proceeds of each Home Equity Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee
to make future advances thereunder. Any and all requirements as to
completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing or
recording such Home Equity Loans were paid;
(xxv) The related Mortgage Note is not and has not been
secured by any collateral, pledged account or other security except
the lien of the corresponding Mortgage;
(xxvi) No Home Equity Loan has a shared appreciation feature,
or other contingent interest feature;
(xxvii) Each Property is located in the state identified in
the respective Schedule of Home Equity Loans and consists of one or
more parcels of real property with a residential dwelling erected
thereon;
(xxviii) Each Mortgage contains a provision for the
acceleration of the payment of the unpaid principal balance of the
related Home Equity Loan in the event the related Property is sold
without the prior consent of the mortgagee thereunder;
(xxix) Any advances made after the date of origination of a
Home Equity Loan but prior to the Cut-Off Date have been
consolidated with the outstanding principal amount secured by the
related Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on
the Schedule of Home Equity Loans. The consolidated principal amount
does not exceed the original principal amount of the related Home
Equity Loan.
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No Mortgage Note permits or obligates the Servicer to make future
advances to the related Mortgagor at the option of the Mortgagor;
(xxx) There is no proceeding pending or threatened for the
total or partial condemnation of any Property, nor is such a
proceeding currently occurring, and each Property is undamaged by
waste, fire, water, flood, earthquake or earth movement;
(xxxi) All of the improvements which were included for the
purposes of determining the Appraised Value of any Property lie
wholly within the boundaries and building restriction lines of such
Property, and no improvements on adjoining properties encroach upon
such Property, and are stated in the title insurance policy and
affirmatively insured;
(xxxii) No improvement located on or being part of any
Property is in violation of any applicable zoning law or regulation.
All inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of each Property and,
with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities and such Property is lawfully occupied under the
applicable law;
(xxxiii) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Owners or the Indenture Trust to the trustee under
the deed of trust, except in connection with a trustee's sale after
default by the related Mortgagor;
(xxxiv) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder
thereof adequate for the realization against the related Property of
the benefits of the security, including (A) in the case of a
Mortgage designated as a deed of trust, by trustee's sale and (B)
otherwise by judicial foreclosure. There is no homestead or other
exemption other than any applicable Mortgagor redemption rights
available to the related Mortgagor which would materially interfere
with the right to sell the related Property at a trustee's sale or
the right to foreclose the related Mortgage;
(xxxv) Other than with respect to the Delinquencies noted in
item (xi) hereof, there is no default, breach, violation or event of
acceleration existing under any Mortgage or the related Mortgage
Note and no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration; and neither the
Servicer nor the Seller has waived any default, breach, violation or
event of acceleration;
(xxxvi) No instrument of release or waiver has been executed
in connection with any Home Equity Loan, and no Mortgagor has been
released, in whole or in part, except in connection with an
assumption agreement which has been approved by the primary mortgage
guaranty insurer, if any, and which has been delivered to the
Custodian;
(xxxvii) The maturity date of each Second Mortgage Loan is at
least 12 months prior to the maturity date of the related first home
equity loan if such first home equity loan provides for a balloon
payment.
(xxxviii) Each Home Equity Loan was underwritten in accordance
with the credit underwriting guidelines of the Seller as set forth
in the Seller's Policies and Procedures Manual,
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as in effect on the date hereof and such Manual conforms in all
material respects to the description thereof set forth in the
Prospectus Supplement;
(xxxix) Each Home Equity Loan was originated based upon a full
appraisal, which included an interior inspection of the subject
property;
(xl) The Home Equity Loans were not selected for sale to the
Issuer by the Seller on any basis intended to adversely affect the
Issuer;
(xli) No more than 5.66% and 1.31% of the aggregate Loan
Balance of the Home Equity Loans in Pool I and Pool II,
respectively, are secured by Properties that are non-owner occupied
Properties (i.e., investor-owned and vacation);
(xlii) The Seller has no actual knowledge that there exist any
hazardous substances, hazard wastes or solid wastes, as such terms
are defined in the Comprehensive Environmental Response Compensation
and Liability Act, the Resource Conservation and Recovery Act of
1976, or other federal, state or local environmental legislation on
any Property;
(xliii) The Seller was properly licensed or otherwise
authorized, to the extent required by applicable law, to originate
or purchase each Home Equity Loan and the consummation of the
transactions herein contemplated, including, without limitation, the
receipt of interest by the Owners and the ownership of the Home
Equity Loans by the Issuer will not involve the violation of such
laws;
(xliv) With respect to each Property subject to a ground lease
(i) the current ground lessor has been identified and all ground
rents which have previously become due and owing have been paid;
(ii) the ground lease term extends, or is automatically renewable,
for at least five years beyond the maturity date of the related Home
Equity Loan; (iii) the ground lease has been duly executed and
recorded; (iv) the amount of the ground rent and any increases
therein are clearly identified in the lease and are for
predetermined amounts at predetermined times; (v) the ground rent
payment is included in the borrower's monthly payment as an expense
item in determining the qualification of the borrower for such Home
Equity Loan; (vi) the Issuer has the right to cure defaults on the
ground lease; and (vii) the terms and conditions of the leasehold do
not prevent the free and absolute marketability of the Property. As
of the Cut-Off Date, the Loan Balance of the Home Equity Loans with
related Properties subject to ground leases does not exceed 1% of
the Original Aggregate Loan Balance;
(xlv) As of the Closing Date, the Seller has not received a
notice of default of any First Mortgage Loan secured by any Property
which has not been cured by a party other than the Seller.
(xlvi) No Home Equity Loan is subject to a temporary rate
reduction pursuant to a buydown program;
(xlvii) No more than 14.91% and 32.42% of the aggregate Loan
Balance of the Home Equity Loans in Pool I and Pool II,
respectively, was originated under the Seller's non-income
verification program;
(xlviii) The Coupon Rate on each Home Equity Loan is
calculated on the basis of a year of 360 days with twelve 30-day
months;
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(xlix) Neither the operation of any of the terms of each
Mortgage Note and each Mortgage nor the exercise of any right
thereunder will render either the Mortgage Note or the Mortgage
unenforceable, in whole or in part, nor subject it to any right of
rescission, set-off, counterclaim or defense, including, without
limitation, the defense of usury;
(l) Any adjustment to the Coupon Rate on an adjustable rate
Home Equity Loan has been legal, proper and in accordance with the
terms of the related Mortgage Note;
(li) No Home Equity Loan is subject to negative amortization;
(lii) As of the Cut-Off Date, the FTC holder regulation
provided in 16 C.F.R. Part 433 does not apply to any of the Home
Equity Loan; and
(liii) No Home Equity Loan in Loan Pool I has a Loan Balance
in excess of the maximum dollar loan amount limitations for
residential mortgage loans applicable to Fannie Mae as of the
Cut-Off Date.
(c) In the event that any Qualified Replacement Mortgage is delivered
by the Seller to the Trust pursuant to Section 2.03, Section 2.04 or Section
2.06 hereof, the Seller shall be obligated to take the actions described in
Section 2.04(a) with respect to such Qualified Replacement Mortgage upon the
discovery by any of the Owners, the Seller, the Servicer, the Note Insurer, any
Sub-Servicer, the Custodian or the Indenture Trustee that the statements set
forth in subsection (b) above are untrue in any material respect on the date
such Qualified Replacement Mortgage is conveyed to the Trust such that the
interests of the Owners or the Note Insurer in the related Qualified Replacement
Mortgage are materially and adversely affected; provided, however, that for the
purposes of this subsection (c) the statements in subsection (b) above referring
to items "as of the Cut-Off Date" or "as of the Closing Date" shall be deemed to
refer to such items as of the date such Qualified Replacement Mortgage is
conveyed to the Trust. Notwithstanding the fact that a representation contained
in subsection (b) above may be limited to the Seller's or the Depositor's
knowledge, such limitation shall not relieve the Seller of its repurchase
obligation under this Section and Section 2.05 hereof.
(d) It is understood and agreed that the covenants set forth in this
Section 2.04 shall survive delivery of the respective Home Equity Loans
(including Qualified Replacement Mortgages) to the Indenture Trustee or the
Custodian.
(e) Neither the Indenture Trustee nor the Servicer shall have any
duty to conduct any affirmative investigation other than as specifically set
forth in this Agreement as to the occurrence of any condition requiring the
repurchase or substitution of any Home Equity Loan pursuant to this Article II
or the eligibility of any Home Equity Loan for the purpose of this Agreement.
Section 2.05 Conveyance of the Home Equity Loans and Qualified
Replacement Mortgages.
(a) On the Closing Date, the Seller, concurrently with the execution
and delivery hereof, transfers, assigns, sets over and otherwise conveys without
recourse, to the Depositor and the Depositor, concurrently with the execution
and delivery hereof, transfers, assigns, sets over and otherwise conveys without
recourse, to the Issuer, all of its respective right, title and interest in and
to the Home Equity Loans (other than payments of principal and interest due on
the Home Equity Loans on or before the Cut-Off Date). The transfer by the Seller
to the Depositor and by the Depositor to the Issuer of the Home Equity Loans set
forth on the Schedule of Home Equity Loans to the Issuer is absolute and is
intended by all parties hereto to be treated as a sale by the Seller to the
Depositor and by the Depositor to the Issuer. Pursuant to the
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Indenture, the Issuer will pledge the Trust Estate to the Indenture Trustee to
be held on behalf of the Owners of the Notes.
In the event that such conveyance is deemed to be a loan, the parties
intend that the Seller shall be deemed to have granted to the Depositor and the
Depositor shall be deemed to have granted to the Issuer a security interest in
the Trust Estate, and that this Agreement shall constitute a security agreement
under applicable law.
In connection with the sale, transfer, assignment, and conveyance from
the Seller to the Depositor, the Seller has filed, in the appropriate office or
offices in the States of Delaware and Florida, a UCC-1 financing statement
executed by the Seller as debtor, naming the Depositor as secured party and
listing the Home Equity Loans, and the other property described above as
collateral. The characterization of the Seller as the debtor and the Depositor
as the secured party in such financing statements is solely for protective
purposes and shall in no way be construed as being contrary to the intent of the
parties that this transaction be treated as a sale of the Seller's entire right,
title and interest in the Trust Estate. In connection with such filing, the
Seller agrees that it shall cause to be filed all necessary continuation
statements thereof and to take or cause to be taken such actions and execute
such documents as are necessary to perfect and protect the Depositor's interest
in the Trust Estate.
In connection with the sale, transfer, assignment, and conveyance from
the Depositor to the Issuer, the Depositor has filed, in the appropriate office
or offices in the States of Delaware and Florida a UCC-1 financing statement
executed by the Depositor as debtor, naming the Issuer as secured party and
listing the Home Equity Loans, and the other property described above as
collateral. The characterization of the Depositor as a debtor and the Issuer as
the secured party in such financing statements is solely for protective purposes
and shall in no way be construed as being contrary to the intent of the parties
that this transaction be treated as a sale of the Depositor's entire right,
title and interest in the Trust Estate. In connection with such filing, the
Depositor agrees that it shall cause to be filed all necessary continuation
statements thereof and to take or cause to be taken such actions and execute
such documents as are necessary to perfect and protect the Issuer's, the Owners'
and the Note Insurer's interest in the Trust Estate.
In connection with the pledge of the Trust Estate from the Issuer to
the Indenture Trustee, on behalf of the Owners of the Notes, the Issuer has
filed, in the appropriate office or offices in the State of Delaware, a UCC-1
Financing Statement executed by the Issuer as debtor, naming the Indenture
Trustee, on behalf of the Owners of the Notes, as the secured party and listing
the Home Equity Loans and the other property described above as collateral. In
connection with such filing, the Issuer agrees that it shall cause to be filed
all necessary continuation statements thereof and to take or cause to be taken
such actions and execute such documents as are necessary to perfect and protect
the Indenture Trustee's interest in the Trust Estate on behalf of the Owners of
the Notes.
(b) In connection with the transfer and assignment of the Home Equity
Loans, the Seller agrees to:
(i) deliver without recourse to the Custodian, on behalf of
the Indenture Trustee, on the Closing Date with respect to each Home
Equity Loan, (A) the original Mortgage Note endorsed in blank or to
the order of "The Chase Manhattan Bank, as Indenture Trustee for the
IMC Home Equity Loan Asset Backed Notes, Series 1998-7A and Series
1998-7B without recourse," (B) (I) the original title insurance
commitment or a copy thereof certified as a true copy by the closing
agent or the Seller, and when available, the original title insurance
policy or a copy certified by the issuer of the title insurance
policy or (II) the attorney's opinion of title, (C) originals or
copies of all intervening assignments certified as true copies by the
closing agent or the Seller, showing a complete chain of title from
origination to the Issuer, if any, including warehousing assignments,
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if recorded, (D) originals of all assumption and modification
agreements, if any and (E) either: (1) the original Mortgage, with
evidence of recording thereon (if such original Mortgage has been
returned to the Seller from the applicable recording office) or a
copy of the Mortgage certified as a true copy by the closing agent or
the Seller, or (2) a copy of the Mortgage certified by the public
recording office in those instances where the original recorded
Mortgage has been lost or retained by the recording office;
(ii) cause, within 30 days following the Closing Date,
assignments of the Mortgages to The Chase Manhattan Bank, as
Indenture Trustee for the "The Chase Manhattan Bank, as the Indenture
Trustee for the IMC Home Equity Loan Asset Backed Notes, Series
1998-7A and Series 1998-7B without recourse," to be submitted for
recording in the appropriate jurisdictions; provided, however, that
the Seller shall not be required to prepare an assignment for any
Mortgage described in subsection (b)(i)(E)(2) above with respect to
which the original recording information has not yet been received
from the recording office until such information is received;
provided, further, that the Seller shall not be required to record an
assignment of a Mortgage if the Seller furnishes to the Indenture
Trustee and the Note Insurer, on or before the Closing Date, at the
Seller's expense, an opinion of counsel with respect to the relevant
jurisdiction that such recording is not necessary to perfect the
Indenture Trustee's interest in the related Home Equity Loans (in
form and substance satisfactory to the Indenture Trustee, and the
Note Insurer and the Rating Agencies); provided further, however,
notwithstanding the delivery of any legal opinions, (A) each
assignment of Mortgage shall be recorded upon the earliest to occur
of: (i) reasonable direction by the Note Insurer or (ii) the
occurrence of a Servicer Termination Event and (B) the assignment of
Mortgage relating to a specified Home Equity Loan shall be recorded
upon instruction by the Servicer that such recordation is required by
the Servicer as part of its loan resolution process with respect to
such Home Equity Loan; and
(iii) deliver the title insurance policy or title searches,
the original Mortgages and such recorded assignments, together with
originals or duly certified copies of any and all prior assignments
(other than unrecorded warehouse assignments), to the Custodian, on
behalf of the Indenture Trustee, within 15 days of receipt thereof by
the Seller (but in any event, with respect to any Mortgage as to
which original recording information has been made available to the
Seller, within one year after the Closing Date.
Notwithstanding anything to the contrary contained in this Section
2.05, in those instances where the public recording office retains the original
Mortgage, the assignment of a Mortgage or the intervening assignments of the
Mortgage after it has been recorded, the Seller and the Depositor shall be
deemed to have satisfied their obligations hereunder upon delivery to the
Custodian, on behalf of the Indenture Trustee of a copy of such Mortgage, such
assignment or assignments of Mortgage certified by the public recording office
to be a true copy of the recorded original thereof.
Not later than ten days following the end of the 30-day period referred
in clause (ii) of this subsection (b), the Seller shall deliver to the
Custodian, on behalf of the Indenture Trustee a list of all Mortgages for which
no Mortgage assignment has yet been submitted for recording by the Seller, which
list shall state the reason why the Seller has not yet submitted such Mortgage
assignments for recording. With respect to any Mortgage assignment disclosed on
such list as not yet submitted for recording for a reason other than a lack of
original recording information, the Custodian, on behalf of the Indenture
Trustee shall make an immediate demand on the Seller to prepare such Mortgage
assignments, and shall inform the Note Insurer, in writing, of the Seller's
failure to prepare such Mortgage assignments. Thereafter, the Custodian, on
behalf of the Indenture Trustee shall cooperate in executing any documents
prepared by the Note Insurer and submitted to the Custodian, on behalf of the
Indenture Trustee in connection with this provision. Following the expiration of
each 30-day period referred to in clause (ii) of this subsection (b), the Seller
shall
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promptly prepare a Mortgage assignment for any Mortgage for which original
recording information is subsequently received by the Seller, and shall promptly
deliver a copy of such Mortgage assignment to the Custodian, on behalf of the
Indenture Trustee. The Seller agrees that it will follow its normal servicing
procedures and attempt to obtain the original recording information necessary to
complete a Mortgage assignment. In the event that the Seller is unable to obtain
such recording information with respect to any Mortgage prior to the end of the
18th calendar month following the Closing Date and has not provided to the
Custodian, on behalf of the Indenture Trustee a Mortgage assignment with
evidence of recording thereon relating to the assignment of such Mortgage to the
Indenture Trustee, the Custodian, on behalf of the Indenture Trustee shall
notify the Seller of the Seller's obligation to provide a completed assignment
(with evidence of recording thereon) on or before the end of the 20th calendar
month following the Closing Date. A copy of such notice shall be sent by the
Custodian, on behalf of the Indenture Trustee to the Note Insurer. If no such
completed assignment (with evidence of recording thereon) is provided before the
end of such 20th calendar month, the related Home Equity Loan shall be deemed to
have breached the representation contained in clause (xxii) of Section 2.04(b)
hereof; provided, however, that if as of the end of such 20th calendar month the
Seller demonstrates to the satisfaction of the Note Insurer that it is
exercising its best efforts to obtain such completed assignment and, during each
month thereafter until such completed assignment is delivered to the Custodian,
on behalf of the Indenture Trustee, the Seller continues to demonstrate to the
satisfaction of the Note Insurer that it is exercising its best efforts to
obtain such completed assignment, the related Home Equity Loan will not be
deemed to have breached such representation. The requirement to deliver a
completed assignment with evidence of recording thereon will be deemed satisfied
upon delivery of a copy of the completed assignment certified by the applicable
public recording office.
Copies of all Mortgage assignments received by the Custodian, on behalf
of the Indenture Trustee shall be retained in the related File.
All recording required pursuant to this Section 2.05 shall be
accomplished at the expense of the Seller.
(c) In the case of Home Equity Loans which have been prepaid in full
after the Cut-Off Date and prior to the Closing Date, the Seller, in lieu of the
foregoing, will deliver within six (6) days after the Closing Date to the
Indenture Trustee a certification of an Authorized Officer in the form set forth
in Exhibit A.
(d) The Seller shall transfer, assign, set over and otherwise convey
without recourse, to the Depositor and the Depositor shall transfer, assign, set
over and otherwise convey without recourse, to the Issuer all right, title and
interest of the Seller in and to any Qualified Replacement Mortgage delivered to
the Custodian, on behalf of the Indenture Trustee on behalf of the Issuer by the
Seller pursuant to Section 2.03, 2.04 or 2.06 hereof and all its right, title
and interest to principal and interest due on such Qualified Replacement
Mortgage after the applicable Replacement Cut-Off Date; provided, however, that
the Seller shall reserve and retain all right, title and interest in and to
payments of principal and interest due on such Qualified Replacement Mortgage on
or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the lien of the Indenture
in connection with the conveyance of a Qualified Replacement Mortgage therefor,
the Indenture Trustee will transfer, assign, set over and otherwise convey
without recourse or representation, on the Seller's order, all of its and the
Issuer's right, title and interest in and to such released Home Equity Loan and
all the Issuer's right, title and interest to principal and interest due on such
released Home Equity Loan after the applicable Replacement Cut-Off Date;
provided, however, that the Issuer shall reserve and retain all right, title and
interest in and to payments of principal and interest due on such released Home
Equity Loan on or prior to the applicable Replacement Cut-Off Date.
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(f) In connection with any transfer and assignment of a Qualified
Replacement Mortgage to the Issuer, the Seller agrees to (i) deliver without
recourse to the Custodian, on behalf of the Indenture Trustee on the date of
delivery of such Qualified Replacement Mortgage the original Mortgage Note
relating thereto, endorsed in blank or to the order of "The Chase Manhattan
Bank, as Indenture Trustee for IMC Home Equity Loan Asset Backed Notes, Series
1998-7A and Series 1998-7B without recourse," (ii) cause promptly to be recorded
an assignment in the appropriate jurisdictions, (iii) deliver the original
Qualified Replacement Mortgage and such recorded assignment, together with
original or duly certified copies of any and all prior assignments, to the
Custodian, on behalf of the Indenture Trustee within 15 days of receipt thereof
by the Seller (but in any event within 60 days after the date of conveyance of
such Qualified Replacement Mortgage) and (iv) deliver the title insurance
policy, or where no such policy is required to be provided under Section
2.05(b)(i)(B), the other evidence of title in same required in Section
2.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection
with the conveyance of a Qualified Replacement Mortgage the Custodian, on behalf
of the Indenture Trustee shall deliver on the date of conveyance of such
Qualified Replacement Mortgage and on the order of the Seller (i) the original
Mortgage Note relating thereto, endorsed without recourse or representation, to
the Seller, (ii) the original Mortgage so released and all assignments relating
thereto and (iii) such other documents as constituted the File with respect
thereto.
(h) If a Mortgage assignment is lost during the process of recording,
or is returned from the recorder's office unrecorded due to a defect therein,
the Seller shall prepare a substitute assignment or cure such defect, as the
case may be, and thereafter cause each such assignment to be duly recorded.
Section 2.06 Acceptance by Indenture Trustee; Certain Substitutions of
Home Equity Loans; Certification by Indenture Trustee.
(a) The Indenture Trustee agrees to execute and deliver and to cause
the Custodian to execute and deliver on the Closing Date an acknowledgment of
receipt of the items delivered by the Seller or the Depositor in the forms
attached as Exhibit B-1 and Exhibit B-2 hereto, and declares through the
Custodian that it will hold such documents and any amendments, replacement or
supplements thereto, as well as any other assets included in the definition of
Trust Estate and delivered to the Custodian, on behalf of the Indenture Trustee,
as Indenture Trustee in trust upon and subject to the conditions set forth
herein and in the Indenture for the benefit of the Owners. The Indenture Trustee
agrees, for the benefit of the Owners, to cause the Custodian to review such
items within 45 days after the Closing Date (or, with respect to any Qualified
Replacement Mortgage, within 45 days after the assignment thereof) and to
deliver to the Depositor, the Seller, the Servicer, the Issuer and the Note
Insurer a certification in the form attached hereto as Exhibit C (a "Pool
Certification") to the effect that, as to each Home Equity Loan listed in the
Schedule of Home Equity Loans (other than any Home Equity Loan paid in full or
any Home Equity Loan specifically identified in such Pool Certification as not
covered by such Pool Certification), (i) all documents required to be delivered
to it pursuant to Section 2.05(b)(i) of this Agreement are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged or torn and relate to such Home Equity Loan and (iii) based on its
examination and only as to the foregoing documents, the information set forth on
the Schedule of Home Equity Loans accurately reflects the information set forth
in the File. Neither the Custodian on behalf of the Indenture Trustee, nor the
Indenture Trustee shall have any responsibility for reviewing any File except as
expressly provided in this subsection 2.06(a). Without limiting the effect of
the preceding sentence, in reviewing any File, neither the Custodian nor the
Indenture Trustee shall have any responsibility for determining whether any
document is valid and binding, whether the text of any assignment is in proper
form (except to determine if the Indenture Trustee is the assignee), whether any
document has been recorded in accordance with the requirements of any applicable
jurisdiction or whether a blanket assignment is permitted in any applicable
jurisdiction, but shall only be required to determine whether a document has
been executed, that it appears to be what it purports to be, and, where
applicable,
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that it purports to be recorded. Neither the Custodian on behalf of the
Indenture Trustee, nor the Indenture Trustee shall be under any duty or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that they are genuine, enforceable, or
appropriate for the represented purpose or that they are other than what they
purport to be on their face, nor shall the Custodian or the Indenture Trustee be
under any duty to determine independently whether there are any intervening
assignments or assumption or modification agreements with respect to any Home
Equity Loan.
(b) If the Custodian, on behalf of the Indenture Trustee during such
45-day period finds any document constituting a part of a File which is not
executed, has not been received, or is unrelated to the Home Equity Loans
identified in the Schedule of Home Equity Loans, or that any Home Equity Loan
does not conform to the description thereof as set forth in the Schedule of Home
Equity Loans, the Custodian, on behalf of the Indenture Trustee shall promptly
so notify the Depositor, the Seller, the Issuer, the Owners and the Note
Insurer. In performing any such review, the Custodian, on behalf of the
Indenture Trustee may conclusively rely on the Seller as to the purported
genuineness of any such document and any signature thereon. It is understood
that the scope of the review of the items delivered by the Seller pursuant to
Section 2.05(b)(i) is limited solely to confirming that the documents listed in
Section 2.05(b)(i) have been executed and received, relate to the Files
identified in the Schedule of Home Equity Loans and conform to the description
thereof in the Schedule of Home Equity Loans. The Seller agrees to use
reasonable efforts to remedy a material defect in a document constituting part
of a File of which it is so notified by the Custodian, on behalf of the
Indenture Trustee. If, however, within 90 days after such notice to it
respecting such defect the Seller has not remedied the defect and the defect
materially and adversely affects the interest in the related Home Equity Loan of
the Owners or the Note Insurer, the Seller will (or will cause an affiliate of
the Seller to) on the next succeeding Monthly Remittance Date (i) substitute in
lieu of such Home Equity Loan a Qualified Replacement Mortgage and deliver the
Substitution Amount to the Servicer for deposit in the Principal and Interest
Account or (ii) purchase such Home Equity Loan at a purchase price equal to the
Loan Purchase Price thereof, which purchase price shall be delivered to the
Servicer for deposit in the Principal and Interest Account.
(c) In addition to the foregoing, the Indenture Trustee also agrees to
cause the Custodian to make a review during the 12th month after the Closing
Date indicating the current status of the exceptions previously indicated on the
Pool Certification (the "Final Certification"). After delivery of the Final
Certification, the Custodian, on behalf of the Indenture Trustee, shall provide
to the Note Insurer no less frequently than monthly updated certifications
indicating the then current status of exceptions, until all such exceptions have
been eliminated.
Section 2.07 [Reserved].
Section 2.08 Custodian.
Notwithstanding anything to the contrary in this Agreement, the parties
hereto acknowledge that the functions of the Indenture Trustee with respect to
the custody, acceptance, inspection and release of the Files pursuant to
Sections 2.05, 2.06 and 4.14 and the related Pool Certification and Final
Certification shall be performed by the Custodian pursuant to the Custodial
Agreement. The fees and expenses of the Custodian will be paid by the Seller.
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Section 2.09 Books and Records.
The sale of each Home Equity Loan shall be reflected in the Seller's
and the Depositor's balance sheets and other financial statements as a sale of
assets by the Seller and the Depositor, as the case may be, under generally
accepted accounting principles.
END OF ARTICLE II
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ARTICLE III
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 3.01 [Reserved].
Section 3.02 Establishment of Accounts.
The Depositor shall cause to be established on the Closing Date, and
the Indenture Trustee shall maintain, at the Corporate Trust Office, the Pool I
Note Account, to be held by the Indenture Trustee in the name of the Indenture
Trustee, in trust for the Owners of the Series 1998-7A Notes and the Note
Insurer as their interests may appear and the Pool II Note Account, to be held
by the Indenture Trustee in the name of the Indenture Trustee, in trust for the
Owners of the Series 1998-7B Notes and the Note Insurer, as their interest may
appear.
Section 3.03 Flow of Funds.
(a)(i) The Indenture Trustee shall promptly deposit in the Pool I Note
Account, without duplication, upon receipt, (i) any Insured Payments relating to
Pool I received from the Policy Payment Account pursuant to Section 7.02(b)
hereof and (ii) all remittances related to Pool I made to the Indenture Trustee
pursuant to Section 4.08(d)(ii) in an amount equal to the Pool I Monthly
Remittance Amount.
(ii) The Indenture Trustee shall promptly deposit in the Pool II Note
Account, without duplication, upon receipt, (i) any Insured Payments relating to
Pool II received from the Policy Payment Account pursuant to Section 7.02(b)
hereof and (ii) all remittances related to Pool II made to the Indenture Trustee
pursuant to Section 4.08(d)(ii) in an amount equal to the Pool II Monthly
Remittance Amount.
(b) On each Payment Date and for each Series of Notes, the Indenture
Trustee is required to make the following payments and transfers from monies
then on deposit in the related Note Account (or the Reserve Account with respect
to clauses (i), (ii), (iv), (v), (vi) and (viii)) as specified below in the
following order of priority of each such transfer and payment (provided that if
amounts on deposit in the Reserve Account are available to be used with respect
to clauses (i), (ii), (iv), (v), (vi) and (viii) such amounts shall be used
prior to the use of any amounts in the related Note Account):
(i)(A) to the Indenture Trustee, the related Indenture Trustee Fee and
the Indenture Trustee Reimbursable Expenses; (B) to the Owner Trustee, the
related Owner Trustee Fee; and (C) provided that no Note Insurer Default has
occurred and is continuing, to the Note Insurer, the related Premium Amount;
(ii) to the Owners of the related Series of Notes, the related Current
Interest;
(iii) to the Owners of the related Series of Notes, the
related Principal Remittance Amount (less the Overcollateralization Reduction
Amount for the related Series of Notes) plus the portion of the Preference
Amount that relates to principal in reduction of the related Note Principal
Balance until such Note Principal Balance is reduced to zero;
(iv) to the Owners of the related Series of Notes, the related
Excess Spread in an amount not to exceed the Pool I Overcollateralization
Deficit or the Pool II Overcollateralization Deficit, as the case may be, in
reduction of the Note Principal Balance of such Series of Notes, until such Note
Principal Balance is reduced to zero;
(v) to the Owners of the other Series of Notes, the related
Excess Spread remaining after making payments of the amount required in clauses
(i) - (iv), in an amount not to exceed the sum of (x) the
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Pool I Overcollateralization Deficit or the Pool II Overcollateralization
Deficit (as the case may be) for such other Series of Notes remaining after
taking into account the payment of the amount required by clause (iv) above and
(y) any shortfall in the amount available to pay Current Interest for such other
Series of Notes (after taking into account payment of the amount required by
clauses (i) - (iv) for such other Series of Notes on such Payment Date and from
amounts on deposit in the Reserve Account) until such Pool I
Overcollateralization Deficit or Pool II Overcollateralization Deficit (as the
case may be) and such Current Interest shortfall for the other Series of Notes
are reduced to zero; provided, that such Excess Spread shall be applied first,
with respect to such Current Interest shortfall, and, second to such Pool I
Overcollateralization Deficit or Pool II Overcollateralization Deficit (as the
case may be);
(vi) to the Note Insurer, the related Excess Spread remaining
after making the payments required in clauses (i) - (v) to reimburse the Note
Insurer for any unreimbursed payments of Insured Payments and any other amounts
owing to the Note Insurer under the Insurance Agreement, including any unpaid
Premium Amount (together with interest thereon at the late payment rate
specified in the Insurance Agreement) (amounts in the Reserve Account used to
reimburse the Note Insurer shall be withdrawn therefrom on a pro rata basis
based on the related Excess Spread deposited therein from each Series of Notes);
(vii) to the Owners of the related Series of Notes, the
related Excess Spread remaining after making the payments required in clauses
(i) - (vi) in an amount not to exceed any Overcollateralization Deficiency
Amount (calculated after taking into account the payment of the amounts required
by clauses (i) -(vi)) as a reduction of the Note Principal Balance of such
Series of Notes until such Note Principal Balance is reduced to zero;
(viii) to the Owners of the other Series of Notes, the related
Excess Spread remaining after making the payments required in clauses (i) -
(vii) and to the extent money is not available in the Reserve Account in an
amount not to exceed any Overcollateralization Deficiency Amount (calculated
after taking into account the payment of the amounts required by clauses (i) -
(vii)) as a reduction of the Note Principal Balance of the other Series of Notes
until such Note Principal Balance is reduced to zero; provided that the amount
of Excess Spread distributed to the other Series of Notes in clause (v) and this
clause (viii) cannot exceed the amount of the aggregate Realized Losses and
shortfalls in Current Interest on the Loan Pool related to such other Series of
Notes;
(ix) to the Reserve Account, the related Excess Spread
remaining after making the payments required in clauses (i) - (viii), in an
amount equal to the difference between (x) the Specified Overcollateralization
Amount for the other Series of Notes and (y) the Overcollateralization Amount
for the other Series of Notes (after taking into account the payment of the
amount required by clauses (i) - (viii) above for such other Series of Notes)
less the amount already on deposit in the Reserve Account after the
distributions in clauses (i), (ii), (iv), (v), (vi) and (viii) above;
(x) to the Indenture Trustee, the related Excess Spread
remaining after making the payments required in clauses (i) - (ix), as
reimbursement of the expenses of the Indenture Trustee not reimbursed pursuant
to clause (i) above and incurred in connection with its duties and obligations
under the Indentures; and,
(xi) to the Certificate Distribution Account, the related
Excess Spread remaining after making the payment required by clauses (i) - (x),
for payment to the holders of the Residual Interest as provided in the Trust
Agreement.
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(c) Notwithstanding any of the foregoing provisions, the aggregate
amounts distributed on all Payment Dates to the Owners of a Series or of the
Notes on account of principal shall not exceed the original Note Principal
Balance of such Series.
(d) Notwithstanding the foregoing, for a Series of Notes, in the event
that a Payment Date is also a Limited Release Date, a portion of the related
Limited Excess Spread equal to the product of (i) such related Limited Excess
Spread and (ii) a fraction, the numerator of which is equal to the 60+
Delinquent Percentage (Rolling Six Month) for such Payment Date less 12.00% and
the denominator of which is equal to 6.00% (provided that such fraction shall
not exceed 1.0) will be included in the related Overcollateralization Deficiency
Amount and shall not be distributed directly to the Certificate Distribution
Account.
(e) Notwithstanding the priority of payments specified in Section
3.03(b), on the Payment Dates during the period from January 1999 through and
including February 2000, in the event that the Mortgage Portfolio Performance
Test is satisfied, the percentage of the Excess Spread for a Series of Notes and
corresponding Payment Date will be paid directly to the Certificate Distribution
Account for payment to the Owners of the Certificates immediately after the
payment in Section 3.03(b)(vi) (and, therefore, such amount of Excess Spread
will be unavailable for the distributions set out in Section 3.03(b)(vii) -
(x)):
Payment Date % of Excess Spread
------------ ------------------
January 1999 0%
February 1999 100%
March 1999 - February 2000 20%
(f) Upon receipt of Insured Payments from the Note Insurer on behalf of
Owners of the Notes, the Indenture Trustee shall deposit such Insured Payments
in the Policy Payments Account. On each Payment Date, pursuant to Section
7.02(b) hereof, such amounts will be transferred from the Policy Payment Account
to the related Note Account and the Indenture Trustee shall distribute such
Insured Payments, or the proceeds thereof in accordance with Section 3.03(b) to
the Owners of such Notes.
(g) The Indenture Trustee or Paying Agent shall (i) receive for each
Owner of the Notes any Insured Payment from the Note Insurer and (ii) disburse
the same to the Owners of the Notes as set forth in Section 3.03(b). Insured
Payments disbursed by the Indenture Trustee or Paying Agent from proceeds of the
Note Insurance Policy shall not be considered payment by the Trust, nor shall
such payments discharge the obligation of the Trust with respect to such Notes
and the Note Insurer shall be entitled to receive the Reimbursement Amount
pursuant to Section 3.03(b)(vi) hereof. Nothing contained in this paragraph
shall be construed so as to impose duties or obligations on the Indenture
Trustee that are different from or in addition to those expressly set forth in
this Agreement.
Section 3.04 Reserve Account.
(a) The Issuer hereby directs the Indenture Trustee to establish at the
Corporate Trust Office, the Reserve Account on or before the Closing Date. On
each Payment Date, the Indenture Trustee shall deposit in the Reserve Account
such amounts described in Section 3.03(b)(ix).
(b) The Indenture Trustee shall withdraw from the Reserve Account and
pay to the Owners of the Notes (or the Note Insurer) an amount in satisfaction
of the requirements of Section 3.03(b)(i), (ii), (iv), (v), (vi) and (viii). To
the extent that amounts on deposit on a Payment Date after giving effect to the
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requirements of Section 3.03(b)(i), (ii), (iv), (v), (vi) and (viii) exceed the
Reserve Account Requirement, the Indenture Trustee shall deposit such amounts in
the Certificate Distribution Account.
(c) Funds on deposit in the Reserve Account that are withdrawn pursuant
to Section 3.03(b) will be allocated pro-rata based on the required withdrawal
for the two Series of Notes for each subsection of Section 3.03(b).
(d) Funds on deposit in the Reserve Account shall be invested by the
Indenture Trustee in Eligible Investments, selected by the Seller by a written
direction, provided, however, the Indenture Trustee shall not be liable for any
loss arising from such investment in Eligible Investments (other than as obligor
under any Eligible Investment). All such Eligible Investments shall be held by
the Indenture Trustee for the benefit of the beneficiaries of the Reserve
Account. Investment earnings on the Reserve Account shall be credited to the
Reserve Account. Funds on deposit in the Reserve Account shall be invested in
Eligible Investments that will mature so that such funds will be available at
the close of business on the day preceding each Payment Date. Funds deposited in
the Reserve Account on the day which immediately precedes a Payment Date upon
the maturity of any Eligible Investments are not required to be invested
overnight in accordance with the investment provisions contained herein. In the
absence of a written direction regarding the investment of amounts held in the
Reserve Account such amounts shall remain uninvested. Earnings on such
investments shall remain in the Reserve Fund for the benefit of the
beneficiaries of the Reserve Account.
Section 3.05 Investment of Accounts.
(a) Consistent with any requirements of the Code, all or a portion of
any Account (other than the Reserve Account) held by the Indenture Trustee for
the benefit of the Owners shall be invested and reinvested by the Indenture
Trustee in trust for the benefit of the Owners and the Note Insurer, as directed
in writing by the Seller, in one or more Eligible Investments bearing interest
or sold at a discount. The bank serving as Indenture Trustee or any affiliate
thereof may be the obligor on any investment which otherwise qualifies as an
Eligible Investment. No investment in any Account shall mature later than the
Business Day immediately preceding the next Payment Date.
(b) If any amounts are needed for disbursement from any Account (other
than the Reserve Account) held by the Indenture Trustee and sufficient
uninvested funds are not available to make such disbursement, the Indenture
Trustee shall cause to be sold or otherwise converted to cash a sufficient
amount of the investments in such Account. No investments will be liquidated
prior to maturity unless the proceeds thereof are needed for disbursement.
(c) Subject to the terms of the Indenture, the Indenture Trustee shall
not in any way be held liable by reason of any insufficiency in any Account
(other than the Reserve Account) held by the Indenture Trustee resulting from
any loss on any Eligible Investment included therein (except to the extent that
the bank serving as Indenture Trustee is the obligor thereon).
(d) The Indenture Trustee shall invest and reinvest funds in the
Accounts (other than the Reserve Account) held by the Indenture Trustee, in
accordance with the written instructions delivered to the Indenture Trustee on
the Closing Date, but only in one or more Eligible Investments bearing interest
or sold at a discount.
If the Seller shall have failed to give investment directions to the
Indenture Trustee then the Indenture Trustee shall invest in money market funds
described in Section 3.07(j) to be redeemable without penalty no later than the
Business Day immediately preceding the next Payment Date.
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(e) All income or other gain from investments in any Account (other
than the Reserve Account) held by the Indenture Trustee shall be deposited in
such Account (other than the Reserve Account) immediately on receipt, and any
loss resulting from such investments shall be charged to such Account (other
than the Reserve Account), as appropriate, subject to the requirement of Section
4.08(b) that the Servicer contribute funds in an amount equal to such loss in
the case of the Principal and Interest Account.
Section 3.06 Payment of Trust Expenses.
(a) The Seller shall pay the amount of the expenses of the Trust (other
than payments of premiums to the Note Insurer) (including the Indenture
Trustee's expenses that are not paid pursuant to Sections 3.03(b)(i)(A) and
3.03(b)(x)) and the Seller shall promptly pay such expenses directly to the
Persons to whom such amounts are due.
(b) The Seller shall pay directly on the Closing Date the reasonable
fees and expenses of counsel to the Indenture Trustee and the Owner Trustee.
(c) In the event the Depositor fails to do so, the Seller shall pay the
fees and expenses (including any "Expenses" (as defined in the Trust Agreement))
of the Owner Trustee.
Section 3.07 Eligible Investments.
The following are Eligible Investments:
(a) direct general obligations of, or obligations fully and
unconditionally guaranteed as to the timely payment of principal and interest
by, the United States or any agency or instrumentality thereof, provided such
obligations are backed by the full faith and credit of the United States,
Freddie Mac senior debt obligations, and Fannie Mae senior debt obligations, but
excluding any of such securities whose terms do not provide for payment of a
fixed dollar amount upon maturity or call for redemption;
(b) Federal Housing Administration debentures;
(c) Freddie Mac participation certificates which guaranty timely
payment of principal and interest and senior debt obligations;
(d) Consolidated senior debt obligations of any Federal Home Loan
Banks;
(e) Fannie Mae mortgage-backed s ecurities (other than stripped
mortgage securities which are valued greater than par on the portion of unpaid
principal) and senior debt obligations;
(f) Federal funds, certificates of deposit, time deposits, and bankers'
acceptances (having original maturities of not more than 365 days) of any
domestic bank, the short-term debt obligations of which have been rated A-1 by
Standard & Poor's and P-1 by Moody's;
(g) Deposits of any bank or savings and loan association (the long-term
deposit rating of which is Baa3 or better by Moody's and BBB by Standard &
Poor's) which has combined capital, surplus and undivided profits of at least
$50,000,000 which deposits are insured by the FDIC and held up to the limits
insured by the FDIC;
(h) Repurchase agreements collateralized by securities described in
(a), (c), or (e) above with any registered broker/dealer subject to the
Securities Investors Protection Corporation's jurisdiction and subject to
applicable limits therein promulgated by Securities Investors Protection
Corporation or any
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commercial bank, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed short-term or long-term obligation rated P-1 or Aa2, respectively,
or better by Moody's and A-1+ or AA, respectively, or better by Standard &
Poor's, provided:
a. A master repurchase agreement or specific written
repurchase agreement governs the transaction, and
b. The securities are held free and clear of any lien by
the Indenture Trustee or an independent third party
acting solely as agent for the Indenture Trustee, and
such third party is (a) a Federal Reserve Bank, (b) a
bank which is a member of the FDIC and which has
combined capital, surplus and undivided profits of
not less than $125 million, or (c) a bank approved in
writing for such purpose by the Note Insurer, and the
Indenture Trustee shall have received written
confirmation from such third party that it holds such
securities, free and clear of any lien, as agent for
the Indenture Trustee, and
c. A perfected first security interest under the Uniform
Commercial Code, or book entry procedures prescribed
at 31 C.F.R. 306.1 et seq. or 31 C.F.R. 350.0 et
seq., in such securities is created for the benefit
of the Indenture Trustee, and
d. The repurchase agreement has a term of thirty days or
less and the Indenture Trustee will value the
collateral securities no less frequently than weekly
and will liquidate the collateral securities if any
deficiency in the required collateral percentage is
not restored within two business days of such
valuation, and
e. The fair market value of the collateral securities in
relation to the amount of the repurchase obligation,
including principal and interest, is equal to at
least 106%.
(i) Commercial paper (having original maturities of not more than 270
days) rated in the highest short-term rating categories of Standard & Poor's and
Moody's;
(j) Investments in no load money market funds registered under the
Investment Company Act of 1940 whose shares are registered under the Securities
Act and rated AAAm or AAAm-G by Standard & Poor's and Aaa by Moody's; and
(k) Any other investment permitted by each of the Rating Agencies and
the Note Insurer;
provided, that all instruments described hereunder shall mature at par on or
prior to the next succeeding Payment Date unless otherwise provided in this
Agreement and that no instrument described hereunder may be purchased at a price
greater than par if such instrument may be prepaid or called at a price less
than its purchase price prior to stated maturity.
Section 3.08 Accounting and Directions by Indenture Trustee.
By 12:00 noon, New York time, on each Payment Date (or such earlier
period as shall be agreed by the Seller and the Indenture Trustee), the
Indenture Trustee shall notify (based in part on information provided to the
Indenture Trustee by the Servicer and upon which the Indenture Trustee may rely)
the Seller, the Servicer, the Depositor, each Owner and the Note Insurer, of the
following information with respect to such Payment Date (which notification may
be given by facsimile, or by telephone promptly confirmed in writing):
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(1) The aggregate amount on deposit in each Note Account
as of the related Determination Date;
(2) The amount of Current Interest and the Principal
Remittance Amount to be distributed on each Series of
Notes;
(3) The amount of any Insured Payment to be made by the
Note Insurer on such Payment Date;
(4) The application of the amounts described in clauses
(1), (3) and (4) above in respect of the payments on
such Payment Date in accordance with Section 3.03
hereof;
(5) The Pool I Note Principal Balance and the Pool II
Note Principal Balance;
(6) The amount, if any, of any Realized Losses for each
Loan Pool for the related Remittance Period; and
(7) The amount of any Overcollateralization Reduction
Amount for each Loan Pool.
Section 3.09 Reports by Indenture Trustee to Owners and Note Insurer.
(a) On each Payment Date, the Indenture Trustee shall transmit a report
in writing to each Owner of a Series of Notes, the Owner Trustee, the Note
Insurer, the Servicer, Standard & Poor's and Moody's, which report shall contain
the following with respect to each Series:
(i) the aggregate distribution with respect to each Series of
Notes (based on a Note in the original principal amount of $1,000)
for such Payment Date;
(ii) the amount of such distributions allocable to principal
on the Home Equity Loans in the related Loan Pool, separately
identifying the aggregate amount of any Prepayments or other
recoveries of principal included therein (based on a Note in the
original principal amount of $1,000);
(iii) the amount of such distribution allocable to interest on
the Home Equity Loans in the related Loan Pool (based on a Note in
the original principal amount of $1,000);
(iv) if the interest paid to the Owners is less than the
Current Interest, the Interest Carry Forward Amount on such Payment
Date;
(v) the principal amount of the Notes (based on a Note in the
original principal amount of $1,000) which will be outstanding after
giving effect to any payment of principal on such Payment Date;
(vi) the aggregate Loan Balance of all Home Equity Loans in
the related Loan Pool after giving effect to any payment of principal
on such Payment Date;
(vii) the amount of any Insured Payment included in the
amounts distributed to the Owners on such Payment Date;
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(viii) based upon information furnished by the Seller such
information as may be required by Section 6049(d)(7)(C) of the Code
and the regulations promulgated thereunder to assist the Owners in
computing their market discount;
(ix) the weighted average Coupon Rate of the Home Equity Loans
in the related Loan Pool and in both Loan Pools combined;
(x) such other information as the Note Insurer may reasonably
request with respect to delinquent Home Equity Loans in the related
Loan Pool and in both Loan Pools combined;
(xi) the total of any Substitution Amounts or Loan Purchase
Price amounts included in such distribution; and
(xii) the amount on deposit in the Reserve Account immediately
prior to the related Payment Date; the amount deposited therein on
such Payment Date; the amount withdrawn therefrom on such Payment
Date; and the amount therein at the end of such Payment Date.
The Servicer shall provide to the Indenture Trustee the information
described in Section 4.08(d)(iii) and in clause (b) below to enable the
Indenture Trustee to perform its reporting obligations under this Section, and
such obligations of the Indenture Trustee under this Section are conditioned
upon such information being received and the information provided in clauses
(ii), (viii) and (xi) shall be based solely upon information contained in the
monthly servicing report provided by the Servicer to the Indenture Trustee
pursuant to Section 4.08 hereof.
(b) In addition, on each Payment Date the Indenture Trustee will
distribute to each Owner, the Owner Trustee, the Note Insurer, Standard & Poor's
and Moody's, together with the information described in Subsection (a)
preceding, the following information which is hereby required to be prepared by
the Servicer and furnished to the Indenture Trustee for such purpose and the
Note Insurer (via e-mail at [email protected]) on or prior to the related Monthly
Reporting Date with respect to each Loan Pool and for all Home Equity Loans (or
both Loan Pools) in the aggregate:
(i) the number and aggregate principal balances of Home
Equity Loans (a) 30-59 days Delinquent, (b) 60-89
days Delinquent and (c) 90 or more days Delinquent,
as of the close of business on the last Business Day
of the calendar month immediately preceding the
Payment Date, (d) the numbers and aggregate Loan
Balances of all Home Equity Loans as of such Payment
Date and (e) the percentage that each of the amounts
represented by clauses (a), (b) and (c) represent as
a percentage of the respective amounts in clause (d);
(ii) the number and dollar amounts of all Home Equity
Loans in foreclosure proceedings as of the close of
business on the last Business Day of the calendar
month immediately preceding such Payment Date,
separately stating, for this purpose, all Home Equity
Loans with respect to which foreclosure proceedings
were commenced in the immediately preceding calendar
month;
(iii) the number of Mortgagors and the Loan Balances of (a)
the related Mortgages involved in bankruptcy
proceedings as of the close of business on the last
Business Day of the calendar month immediately
preceding such Payment Date and (b) Home Equity Loans
that are "balloon" loans;
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(iv) the existence and status of any REO Properties, as of
the close of business of the last Business Day of the
month immediately preceding the Payment Date;
(v) the book value of any REO Property as of the close of
business on the last Business Day of the calendar
month immediately preceding the Payment Date based on
the most recently available valuation;
(vi) the Cumulative Loss Percentage, the amount of
cumulative Realized Losses, the current period
Realized Losses, and the Annual Loss Percentage
(Rolling Twelve Month); and
(vii) the 60+ Delinquency Percentage (Rolling Six Month)
and the amount of 60+ Day Delinquent Loans.
Section 3.10 Reports by Indenture Trustee.
(a) The Indenture Trustee shall report to the Depositor, the Seller,
the Note Insurer and each Owner, with respect to the amount on deposit in each
Note Account and the identity of the investments included therein, as the
Depositor, the Seller, any Owner or the Note Insurer may from time to time
reasonably request. Without limiting the generality of the foregoing, the
Indenture Trustee shall, at the reasonable request of the Issuer, the Seller,
any Owner or the Note Insurer transmit promptly to the Issuer, the Seller, any
Owner and the Note Insurer copies of all accountings of receipts in respect of
the Home Equity Loans furnished to it by the Servicer and shall notify the
Seller and the Note Insurer if any Monthly Remittance Amount has not been
received by the Indenture Trustee when due.
(b) The Indenture Trustee shall report to the Note Insurer and each
Owner with respect to any written notices it may from time to time receive which
provide an Authorized Officer with actual knowledge that any of the statements
set forth in Section 2.04(b) hereof are inaccurate.
END OF ARTICLE III
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ARTICLE IV
SERVICING AND ADMINISTRATION
OF HOME EQUITY LOANS
Section 4.01 Servicer and Sub-Servicers.
Acting directly or through one or more Sub-Servicers as provided in
Section 4.03, the Servicer shall service and administer the Home Equity Loans
with reasonable care using that degree of skill and attention that it exercises
in servicing comparable home equity loans for itself and others in accordance
with this Agreement and the terms of the respective Home Equity Loans. The
Servicer shall have full power and authority, acting alone, to do or cause to be
done any and all things in connection with such servicing and administration
which it may deem necessary or desirable but without regard to: (i) any
relationship that the Servicer, any Special Servicer or any Affiliate of any of
the Servicer and the Sub-Servicer may have with the related Mortgagor; (ii) the
ownership of any Note by the Servicer or any Affiliate of the Servicer; (iii)
the Servicer's obligation to make Delinquency Advances or Servicing Advances; or
(iv) the right of any of the Servicer or the Sub-Servicer to receive
compensation for its services hereunder or with respect to any particular
transaction.
Subject to Section 4.03 hereof, the Servicer may, and is hereby
authorized to, perform any of its servicing responsibilities with respect to all
or certain of the Home Equity Loans through a Sub-Servicer as it may from time
to time designate, but no such designation of a Sub-Servicer shall serve to
release the Servicer from any of its obligations under this Agreement. Such
Sub-Servicer shall have the rights and powers of the Servicer which have been
delegated to such Sub-Servicer, with respect to such Home Equity Loans under
this Agreement.
Without limiting the generality of the foregoing, but subject to
Sections 4.13 and 4.14, the Servicer in its own name or in the name of a
Sub-Servicer may be authorized and empowered pursuant to a power of attorney
executed and delivered by the Indenture Trustee to execute and deliver, and may
be authorized and empowered by the Indenture Trustee, to execute and deliver, on
behalf of itself, the Owners, the Issuer and the Indenture Trustee or any of
them, (i) any and all instruments of satisfaction or cancellation or of partial
or full release or discharge and all other comparable instruments with respect
to the Home Equity Loans and with respect to the Properties, (ii) to institute
foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect
ownership of any Property in the name of the Servicer on behalf of the Issuer
and Indenture Trustee, and (iii) to hold title to any Property upon such
foreclosure or deed in lieu of foreclosure on behalf of the Issuer and Indenture
Trustee; provided, however, that to the extent any instrument described in
clause (i) preceding would be delivered by the Servicer outside of its usual
procedures for home equity loans held in its own portfolio the Servicer shall,
prior to executing and delivering such instrument, obtain the prior written
consent of the Note Insurer, and provided further, however, that Section 4.13(a)
and Section 4.14(a) shall each constitute a revocable power of attorney from the
Issuer and Indenture Trustee to the Servicer to execute an instrument of
satisfaction (or assignment of mortgage without recourse) with respect to any
Home Equity Loan held by the Indenture Trustee hereunder paid in full or
foreclosed (or with respect to which payment in full has been escrowed).
Revocation of the power of attorney created by the final proviso of the
preceding sentence shall take effect upon (i) the receipt by the Servicer of
written notice thereof from the Indenture Trustee, (ii) a Servicer Termination
Event or (iii) the termination of the Notes. The Indenture Trustee shall execute
any documentation furnished to it by the Servicer for recordation by the
Servicer in the appropriate jurisdictions, as shall be necessary to effectuate
the foregoing. Subject to Sections 4.13 and 4.14, the Indenture Trustee shall
execute a power of attorney to the Servicer or any Sub-Servicer and furnish them
with any other documents as the Servicer or such Sub-Servicer shall reasonably
request to enable the Servicer and such Sub-Servicer to carry out their
respective servicing and administrative duties hereunder.
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Upon the request of the Indenture Trustee or the Issuer, the Servicer
shall send to the Indenture Trustee or the Issuer a computer generated tape,
diskette or other machine readable format containing servicing information with
respect to the Home Equity Loans collected by the Servicer.
The Servicer shall give prompt notice to the Indenture Trustee and the
Issuer of any action, of which the Servicer has actual knowledge, to (i) assert
a claim against the Trust or (ii) assert jurisdiction over the Trust.
Servicing Advances incurred by the Servicer or any Sub-Servicer in
connection with the servicing of the Home Equity Loans (including any penalties
in connection with the payment of any taxes and assessments or other charges) on
any Property shall be recoverable by the Servicer or such Sub-Servicer to the
extent described in Section 4.09(b) hereof.
Section 4.02 Collection of Certain Home Equity Loan Payments.
The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Home Equity Loans. Consistent
with the servicing standard set forth in the first paragraph of Section 4.01,
the Servicer may in its discretion waive or permit to be waived any late payment
charge, prepayment charge, assumption fee or any penalty interest in connection
with the prepayment of a Home Equity Loan or any other fee or charge which the
Servicer would be entitled to retain hereunder as servicing compensation. In the
event the Servicer shall consent to the deferment of the due dates for payments
due on a Mortgage Note, the Servicer shall nonetheless make payment of any
required Delinquency Advance with respect to the payments so extended to the
same extent as if such installment were due, owing and Delinquent and had not
been deferred, and shall be entitled to reimbursement therefor in accordance
with Section 4.09(a) hereof.
Section 4.03 Sub-Servicing Agreements.
The Servicer may, with the prior written consent of the Note Insurer,
enter into Sub-Servicing Agreements for any servicing and administration of Home
Equity Loans with any institution which is acceptable to the Note Insurer and
which, (x) is in compliance with the laws of each state necessary to enable it
to perform its obligations under such Sub-Servicing Agreement, (y) has
experience servicing home equity loans that are similar to the Home Equity Loans
and (z) has equity of not less than $15,000,000 (as determined in accordance
with generally accepted accounting principles). The Servicer shall give notice
to the Indenture Trustee, the Note Insurer and the Rating Agencies of the
appointment of any Sub-Servicer. For purposes of this Agreement, the Servicer
shall be deemed to have received payments on Home Equity Loans when any
Sub-Servicer, has received such payments. Each Sub-Servicer, shall be required
to service the Home Equity Loans in accordance with this Agreement and any such
Sub-Servicing Agreement shall be consistent with and not violate the provisions
of this Agreement. Each Sub-Servicing Agreement shall provide that the Indenture
Trustee (if acting as successor Servicer) or any other successor Servicer shall
have the option to terminate such agreement without payment of any fees if the
original Servicer is terminated or resigns. The Servicer shall deliver to the
Indenture Trustee and the Note Insurer copies of all Sub-Servicing Agreements
and any amendments or modifications thereof promptly upon the Servicer's
execution and delivery of such instrument. This Agreement shall be deemed notice
to all required parties that the Seller shall be appointed as the interim
Sub-Servicer until such time as servicing has been physically transferred to the
Servicer, which in no event shall occur later than December 31, 1998. The Seller
in its capacity as interim Sub-Servicer will comply with all of the obligations
of a "Servicer" hereunder during the period in which it is acting in such
capacity. IMC will use its best efforts to ensure that the transfer of servicing
will occur by December 31, 1998.
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Section 4.04 Successor Sub-Servicers.
The Servicer shall be entitled to terminate any Sub-Servicing Agreement
in accordance with the terms and conditions of such Sub-Servicing Agreement and
to either itself directly service the related Home Equity Loans or enter into a
Sub-Servicing Agreement with a successor Sub-Servicer which qualifies under
Section 4.03.
Section 4.05 Liability of Servicer; Indemnification.
(a) The Servicer shall not be relieved of its obligations under this
Agreement notwithstanding any Sub-Servicing Agreement or any of the provisions
of this Agreement relating to agreements or arrangements between the Servicer
and a Sub-Servicer, and the Servicer shall be obligated to the same extent and
under the same terms and conditions as if it alone were servicing and
administering the Home Equity Loans. The Servicer shall be entitled to enter
into any agreement with a Sub-Servicer for indemnification of the Servicer by
such Sub-Servicer; provided, however, that nothing contained in such
Sub-Servicing Agreement shall be deemed to limit or modify this Agreement.
(b) The Servicer (except The Chase Manhattan Bank if it is required to
succeed the Servicer hereunder) agrees to indemnify and hold the Issuer, the
Indenture Trustee, the Seller, the Note Insurer and the Depositor harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, fees and expenses that the
Issuer, the Seller, the Indenture Trustee, the Note Insurer and the Depositor
may sustain in any way related to the failure of the Servicer to perform its
duties and service the Home Equity Loans in compliance with the terms of this
Agreement. The Servicer shall immediately notify the Issuer, the Indenture
Trustee, the Seller, the Depositor and the Note Insurer if a claim is made by a
third party with respect to this Agreement, and the Servicer shall assume the
defense of any such claim and pay all expenses in connection therewith,
including reasonable counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against the Servicer, the Indenture
Trustee, the Depositor, the Seller and the Note Insurer in respect of such
claim. The provisions of this Section 4.05(b) shall survive the termination of
this Agreement and the payment of the outstanding Notes.
(c) Neither the Servicer nor any of its directors, officers, employees
or agents shall be under any liability to the Issuer, the Seller, the Depositor,
the Note Insurer or the Owners of the Notes 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; provided, however, that this provision
shall not protect the Servicer or any such person against any material breach of
warranties, representations or covenants made herein, or against any specific
liability imposed on the Servicer pursuant hereto, or against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Servicer and any director, officer,
employee or agent of the Servicer 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 Servicer and any director,
officer, employee or agent of the Servicer shall be indemnified and held
harmless by the Issuer (to the extent of the Trust Estates) against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Notes, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
its duties hereunder or by reason of reckless disregard of obligations and
duties hereunder. The Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and, in its opinion, does not involve it
in any expense or liability; provided, however, that the Servicer 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 Owners of the Notes hereunder. In such event, unless
the Servicer acts without the consent of the Owners of Notes
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having a Note Principal Balance of at least 50% of the Notes of both Series in
the aggregate, the legal expenses and costs of such action and any liability
resulting therefrom (except any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder) shall be expenses, costs and liabilities of the Issuer (to the extent
of the Trust Estates) and the Servicer shall be entitled to be reimbursed
therefor from the Principal and Interest Account as and to the extent provided
in Section 4.08(d), any such right of reimbursement being prior to the rights of
the Owners of the Notes to receive any amount in the Principal and Interest
Account.
Section 4.06 No Contractual Relationship Between Sub-Servicer,
Indenture Trustee or the Owners.
Any Sub-Servicing Agreement and any other transactions or services
relating to the Home Equity Loans involving a Sub-Servicer shall be deemed to be
solely between the Servicer and the Sub-Servicer, and the Indenture Trustee and
the Owners shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to any Sub-Servicer except as
set forth in Section 4.07.
Section 4.07 Assumption or Termination of Sub-Servicing Agreement by
Indenture Trustee.
In connection with the assumption of the responsibilities, duties and
liabilities and of the authority, power and rights of the Servicer hereunder by
the Indenture Trustee pursuant to Section 4.20, it is understood and agreed that
the Servicer's rights and obligations under any Sub-Servicing Agreement then in
force between the Servicer and any Sub-Servicer shall be assumed simultaneously
by the Indenture Trustee without act or deed on part of the Indenture Trustee;
provided, however, that the Indenture Trustee (if acting as successor Servicer)
or any other successor Servicer may terminate the Sub-Servicer as provided in
Section 4.03.
The Servicer shall, upon the reasonable request of the Indenture
Trustee, but at the expense of the Servicer, deliver to the assuming party
documents and records relating to each Sub-Servicing Agreement and an accounting
of amounts collected and held by it and otherwise use its best reasonable
efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreements to the assuming party.
Section 4.08 Principal and Interest Account.
(a) The Servicer shall establish and maintain the Principal and
Interest Account in one or more Eligible Accounts. The Principal and Interest
Account shall be identified on the records of the depository institution as
follows: The Chase Manhattan Bank, as Indenture Trustee in trust for the benefit
of the Owners of the IMC Home Equity Loan Asset Backed Notes, Series 1998-7A and
Series 1998-7B and the Note Insurer. If the Principal and Interest Account
ceases to be an Eligible Account hereunder, then the Servicer shall immediately
be required to transfer funds therein to an account meeting the requirements for
an Eligible Account hereunder. The Servicer shall notify the Indenture Trustee,
the Note Insurer and the Owners if there is a change in the name, account number
or institution holding the Principal and Interest Account.
Subject to subsection (c) below, the Servicer shall deposit all
receipts required pursuant to subsection (c) below and related to the Home
Equity Loans to the Principal and Interest Account on a daily basis (but no
later than the first Business Day after receipt).
(b) All funds in the Principal and Interest Account shall be held (i)
uninvested up to the amount insured by the FDIC or (ii) invested in Eligible
Investments. Any investments of funds in the Principal and Interest Account
shall mature or be withdrawable at par on or prior to the immediately succeeding
Monthly
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Remittance Date. Any investment earnings on funds held in the Principal and
Interest Account shall be for the account of the Servicer. Any investment losses
on funds held in the Principal and Interest Account shall be for the account of
the Servicer and promptly upon the realization of such loss shall be contributed
by the Servicer to the Principal and Interest Account. Any references herein to
amounts on deposit in the Principal and Interest Account shall refer to amounts
net of such investment earnings.
(c) The Servicer shall deposit to the Principal and Interest Account
on the Business Day after receipt, all principal and interest collections on the
Home Equity Loans due after the Cut-Off Date, including any Prepayments and Net
Liquidation Proceeds, other recoveries or amounts related to the Home Equity
Loans received by the Servicer and any income from REO Properties, but net of
(i) Net Liquidation Proceeds to the extent such Net Liquidation Proceeds exceed
the sum of (I) the Loan Balance of the related Home Equity Loan immediately
prior to liquidation, plus (II) accrued and unpaid interest on such Home Equity
Loan (net of the Servicing Fee) to the date of such liquidation and (III) any
Realized Losses incurred during the related Remittance Period, (ii) principal
(including Prepayments) collected and interest due on the Home Equity Loans on
or prior to the Cut-Off Date, (iii) reimbursements for past Delinquency Advances
and Servicing Advances, which the Servicer has determined are Nonrecoverable
Advances and (iv) reimbursements for amounts deposited in the Principal and
Interest Account representing payments of principal and/or interest on a
Mortgage Note by a Mortgagor which are subsequently returned by a depository
institution as unpaid (all such net amount herein referred to as "Daily
Collections").
(d) (i) The Servicer may make withdrawals for its own account from
the Principal and Interest Account, only for the following purposes:
(A) to pay itself the Servicing Fee, other items
of servicing compensation and investment
earnings on Eligible Investments;
(B) to withdraw amounts that have been deposited
to the Principal and Interest Account in
error;
(C) to reimburse itself pursuant to Section
4.09(a) for unrecovered Delinquency Advances
and Servicing Advances and for any excess
interest collected from a Mortgagor;
(D) to reimburse itself for amounts due it
pursuant to Section 4.05(c); and
(E) to clear and terminate the Principal and
Interest Account following the termination
of the Trust pursuant to Article V.
(ii) The Servicer shall (a) remit to the Indenture Trustee for
deposit in the related Note Account by wire transfer, or otherwise make funds
available in immediately available funds, without duplication, the Daily
Collections, Loan Purchase Prices and Substitution Amounts allocable to a
Remittance Period not later than the related Monthly Remittance Date, and (b) on
each Monthly Reporting Date, deliver to the Indenture Trustee and the Note
Insurer, a monthly servicing report containing (without limitation) the
following information: principal and interest collected in respect of the Home
Equity Loans, scheduled principal and interest that was due on the Home Equity
Loans, relevant information with respect to Liquidated Loans, if any, summary
and detailed delinquency reports, Liquidation Proceeds and other similar
information concerning the servicing of the Home Equity Loans. In addition, the
Servicer shall inform the Indenture Trustee and the Note Insurer in writing on
each Monthly Reporting Date, of the amounts of any Loan Purchase Prices or
Substitution Amounts so remitted during the related Remittance Period.
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(iii) The Servicer shall provide to the Indenture Trustee in writing
the information described in Section 4.08(d)(ii)(b) and in Section 4.09(b) to
enable the Indenture Trustee to perform its reporting requirements under Section
3.09.
Section 4.09 Delinquency Advances and Servicing Advances.
(a) On each Monthly Remittance Date, the Servicer shall be required to
remit to the Indenture Trustee for deposit to the Note Account out of the
Servicer's own funds any Delinquent payment of interest with respect to each
Delinquent Home Equity Loan, which payment was not received on or prior to the
related Remittance Date and was not theretofore advanced by the Servicer. Such
amounts of the Servicer's own funds so deposited are "Delinquency Advances".
The Servicer shall be permitted to reimburse itself on any Business Day
for any Delinquency Advances paid from the Servicer's own funds from late
collections or Liquidation Proceeds on the related Home Equity Loan or from
collections on any Home Equity Loan that are not required to be distributed on
the Payment Date occurring during the month in which such reimbursement is made
(all or any portion of such amount to be replaced on future Monthly Remittance
Dates to the extent required for distribution).
(b) The Servicer will pay all "out-of-pocket" costs and expenses
incurred in the performance of its servicing obligations, including, but not
limited to, (i) Preservation Expenses, (ii) the cost of any enforcement or
judicial proceedings, including foreclosures, (iii) the cost of the management
and liquidation of REO Property and (iv) advances required by Section 4.13(a),
except to the extent that such amounts are determined by the Servicer in its
reasonable business judgment to be a Nonrecoverable Advance. Such costs will
constitute "Servicing Advances". The Servicer may recover a Servicing Advance
from the Mortgagors to the extent permitted by the Home Equity Loans or, if not
theretofore recovered from the Mortgagor on whose behalf such Servicing Advance
was made, from Liquidation Proceeds realized upon the liquidation of the related
Home Equity Loan. The Servicer shall be entitled to recover the Servicing
Advances from the aforesaid Liquidation Proceeds prior to the payment of the
Liquidation Proceeds to any other party to this Agreement.
(c) Notwithstanding the foregoing, in the event that the Servicer
determines in its reasonable business judgment in accordance with the servicing
standards set out herein that any proposed Delinquency Advance or Servicing
Advance would be a Nonrecoverable Advance, the Servicer shall not be required to
make Delinquency Advances or Servicing Advances with respect to such Home Equity
Loan. To the extent that the Servicer previously has made Delinquency Advances
or Servicing Advances with respect to a Home Equity Loan that the Servicer
subsequently determines will be a Nonrecoverable Advance, the Servicer shall be
entitled to reimbursement for such aggregate unreimbursed Delinquency Advances
or Servicing Advances from the Principal and Interest Account. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any proposed
advance, if made, would constitute a Nonrecoverable Advance, shall be evidenced
by an Officer's Certificate delivered to the Indenture Trustee and the Note
Insurer.
Section 4.10 Compensating Interest; Repurchase of Home Equity Loans.
(a) If a Prepayment in full of a Home Equity Loan or a Prepayment of at
least six times a Mortgagor's Monthly Payment occurs during any calendar month,
any difference between (x) the interest collected from the Mortgagor in
connection with such payoff, and (y) the full month's interest at the Coupon
Rate that would be due on the related Due Date for such Home Equity Loan
("Compensating Interest") (but not in excess of the aggregate Servicing Fee for
the related Remittance Period) shall be deposited by the Servicer to the
Principal and Interest Account (or if such difference is an excess, the Servicer
shall retain
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such excess) on the next succeeding Monthly Remittance Date and shall be
included in the Monthly Remittance Amount to be made available to the Indenture
Trustee on such Monthly Remittance Date.
(b) Subject to the clause (c) below, the Servicer has the right and the
option, but not the obligation, to purchase for its own account any Home Equity
Loan which becomes Delinquent, in whole or in part, as to at least three
consecutive monthly installments or any Home Equity Loan as to which enforcement
proceedings have been brought by the Servicer pursuant to Section 4.13 if such
Home Equity Loan is the greatest number of days Delinquent of all then
Delinquent Home Equity Loans in such Loan Pool. Any such Home Equity Loan so
purchased shall be purchased by the Servicer on or prior to a Monthly Remittance
Date at a purchase price equal to the Loan Purchase Price thereof, which
purchase price shall be deposited in the Principal and Interest Account.
(c) Until such time as all purchases pursuant to clause (b) above
exceed 3% of the original aggregate Loan Balance of the Home Equity Loans in a
Loan Pool, the Servicer may repurchase such Home Equity Loans without having
first notified the Note Insurer of such repurchase. Thereafter, the Servicer
must notify the Note Insurer, in writing, of its intent to repurchase a Home
Equity Loan and the Servicer may not repurchase such Home Equity Loan without
the written consent of the Note Insurer; provided, that the Note Insurer shall
be deemed to have consented to such repurchase unless it notifies the Servicer,
in writing, of its objection to such repurchase within 5 days after its receipt
of the notice of proposed repurchase.
(d) The Net Liquidation Proceeds from the disposition of any REO
Property shall be deposited in the Principal and Interest Account and remitted
to the Indenture Trustee as part of the Daily Collections remitted by the
Servicer to the Indenture Trustee.
Section 4.11 Maintenance of Insurance.
(a) The Servicer shall cause to be maintained with respect to each Home
Equity Loan (and to advance sums on account of the premiums therefor if not paid
by the Mortgagor unless such advance would be a Nonrecoverable Advance) a hazard
insurance policy with a carrier generally acceptable to the Servicer that
provides for fire and extended coverage, and which provides for a recovery by
the Trust of insurance proceeds relating to such Home Equity Loan in an amount
not less than the least of (i) the outstanding principal balance of the Home
Equity Loan (plus the related senior lien loan, if any) (ii) the minimum amount
required to compensate for damage or loss on a replacement cost basis and (iii)
the full insurable value of the premises. The Servicer shall maintain the
insurance policies required hereunder in the name of the mortgagee, its
successors and assigns, as loss payee. The policies shall require the insurer to
provide the mortgagee with 30 days' notice prior to any cancellation or as
otherwise required by law. The Servicer may also maintain a blanket hazard
insurance policy or policies if the insurer or insurers of such policies are
rated investment grade by Moody's and Standard & Poor's.
(b) If the Home Equity Loan at the time of origination (or if required
by federal law, at any time thereafter) relates to a Property in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, the Servicer will cause to be maintained with
respect thereto a flood insurance policy in a form meeting the requirements of
the then current guidelines of the Federal Insurance Administration with a
carrier generally acceptable to the Servicer in an amount representing coverage,
and which provides for a recovery by the Trust of insurance proceeds relating to
such Home Equity Loan of not less than the least of (i) the outstanding
principal balance of the Home Equity Loan (plus the related senior lien loan, if
any), (ii) the minimum amount required to compensate for damage or loss on a
replacement cost basis and (iii) the maximum amount of insurance that is
available under the Flood Disaster Protection Act of 1973.
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Section 4.12 Due-on-Sale Clauses; Assumption and Substitution
Agreements.
When a Property has been or is about to be conveyed by the Mortgagor,
the Servicer shall, to the extent it has knowledge of such conveyance or
prospective conveyance, exercise its rights to accelerate the maturity of the
related Home Equity Loan under any "due-on-sale" clause contained in the related
Mortgage or Mortgage Note; provided, however, that the Servicer shall not
exercise any such right if the "due-on-sale" clause, in the reasonable belief of
the Servicer, is not enforceable under applicable law. An opinion of counsel,
provided at the expense of the Servicer (which expense shall be a Servicing
Advance), to the foregoing effect shall conclusively establish the
reasonableness of such belief. In such event, the Servicer shall enter into an
assumption and modification agreement with the person to whom such property has
been or is about to be conveyed, pursuant to which such person becomes liable
under the Mortgage Note and, unless prohibited by applicable law or the Mortgage
documents, the Mortgagor remains liable thereon. If the foregoing is not
permitted under applicable law, the Servicer is authorized to enter into a
substitution of liability agreement with such person, pursuant to which the
original Mortgagor is released from liability and such person is substituted as
Mortgagor and becomes liable under the Mortgage Note; provided, however, that to
the extent any such substitution of liability agreement would be delivered by
the Servicer outside of its usual procedures for home equity loans held in its
own portfolio the Servicer shall, prior to executing and delivering such
agreement, obtain the prior written consent of the Note Insurer. The Home Equity
Loan, as assumed, shall conform in all material respects to the requirements,
representations and warranties of this Agreement. The Servicer shall notify the
Indenture Trustee that any such assumption or substitution agreement has been
completed by forwarding to the Indenture Trustee or to the Custodian on the
Indenture Trustee's behalf the original copy of such assumption or substitution
agreement (indicating the File to which it relates) which copy shall be added by
the Indenture Trustee or by the Custodian on the Indenture Trustee's behalf to
the related File and which shall, for all purposes, be considered a part of such
File to the same extent as all other documents and instruments constituting a
part thereof. The Servicer shall be responsible for recording any such
assumption or substitution agreements. In connection with any such assumption or
substitution agreement, no material term of the Home Equity Loan (including,
without limitation, the required monthly payment on the related Home Equity
Loan, the stated maturity, the outstanding principal amount or the Coupon Rate)
shall be changed nor shall any required monthly payments of principal or
interest be deferred or forgiven. Any fee collected by the Servicer or the
Sub-Servicer for consenting to any such conveyance or entering into an
assumption or substitution agreement shall be retained by or paid to the
Servicer as additional servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Home Equity Loan by operation of law or any assumption which the Servicer may be
restricted by law from preventing, for any reason whatsoever.
Section 4.13 Realization Upon Defaulted Home Equity Loans; Workout of
Home Equity Loans.
(a) The Servicer shall foreclose upon or otherwise comparably effect
the ownership in the name of the Indenture Trustee on behalf of the Trust of
Properties relating to defaulted Home Equity Loans as to which no satisfactory
arrangements can be made for collection of Delinquent payments and which the
Servicer has not purchased pursuant to Section 4.10(b). In connection with such
foreclosure or other conversion, the Servicer shall exercise such of the rights
and powers vested in it hereunder, and use the same degree of care and skill in
their exercise or use, as prudent mortgage lenders would exercise or use under
the circumstances in the conduct of their own affairs and consistent with the
servicing standards set forth herein, including, but not limited to, advancing
funds for the payment of taxes, amounts due with respect to Senior Liens and
insurance premiums. Any amounts so advanced shall constitute "Servicing
Advances" within the meaning of Section 4.09(b) hereof. Pursuant to its efforts
to sell such REO Property, the Servicer shall either itself or through an agent
selected by the Servicer protect and conserve such REO Property in the same
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manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of the
interests of the Owners, rent the same, or any part thereof, as the Servicer
deems to be in the best interest of the Owners for the period prior to the sale
of such REO Property. The Servicer shall take into account the existence of any
hazardous substances, hazardous wastes or solid wastes, as such terms are
defined in the Comprehensive Environmental Response Compensation and Liability
Act, the Resource Conservation and Recovery Act of 1976, or other federal, state
or local environmental legislation, on a Property in determining whether to
foreclose upon or otherwise comparably convert the ownership of such Property.
The Servicer shall not take any such action with respect to any Property known
by the Servicer to contain such wastes or substances or to be within one mile of
the site of such wastes or substances, without the prior written consent of the
Note Insurer.
(b) The Servicer shall determine, with respect to each defaulted Home
Equity Loan when it has recovered, whether through trustee's sale, foreclosure
sale or otherwise, all amounts it expects to recover from or on account of such
defaulted Home Equity Loan, whereupon such Home Equity Loan shall become a
"Liquidated Loan" and the Servicer shall promptly submit a liquidation report in
a form reasonably acceptable to the Note Insurer.
(c) The Servicer shall not agree to any modification, waiver or
amendment of any provision of any Home Equity Loan unless, in the Servicer's
good faith judgment, such modification, waiver or amendment would minimize the
loss that might otherwise be experienced with respect to such Home Equity Loan
and only in the event of a default with respect to such Home Equity Loan or in
the event that a default with respect to such Home Equity Loan is imminent;
provided, however, that no such modification, waiver or amendment shall extend
the maturity date of such Home Equity Loan beyond the Remittance Period related
to the Final Payment Date. Notwithstanding anything set out in this Section
4.13(c) or elsewhere in this Agreement to the contrary, the Servicer shall be
permitted to modify, waive or amend any provision of a Home Equity Loan if
required by statute or a court of competent jurisdiction to do so.
(d) The Servicer shall provide written notice to the Indenture Trustee
and the Note Insurer prior to the execution of any modification, waiver or
amendment of any provision of any Home Equity Loan; provided that if the Note
Insurer does not object in writing to the modification, waiver or amendment
specified in such notice within 5 Business Days after its receipt thereof, the
Servicer may effectuate such modification, waiver or amendment and shall deliver
to the Custodian, on behalf of the Indenture Trustee for deposit in the related
File, an original counterpart of the agreement relating to such modification,
waiver or amendment, promptly following the execution thereof.
Section 4.14 Indenture Trustee to Cooperate; Release of Files.
(a) Upon the payment in full of any Home Equity Loan (including any
liquidation of such Home Equity Loan through foreclosure or otherwise), or the
receipt by the Servicer of a notification that payment in full will be escrowed
in a manner customary for such purposes, the Servicer shall deliver to the
Custodian, on behalf of the Indenture Trustee the Fannie Mae "Request for
Release of Documents" (Fannie Mae Form 2009). Upon receipt of such Request for
Release of Documents, the Custodian, on behalf of the Indenture Trustee shall
promptly release the related File, in trust, in its reasonable discretion to (i)
the Servicer, (ii) an escrow agent or (iii) any employee, agent or attorney of
the Indenture Trustee. Upon any such payment in full, or the receipt of such
notification that such funds have been placed in escrow, the Servicer is
authorized to give, as attorney-in-fact for the Indenture Trustee and the
mortgagee under the Mortgage which secured the Mortgage Note, an instrument of
satisfaction (or assignment of Mortgage without recourse) regarding the Property
relating to such Mortgage, which instrument of satisfaction or assignment, as
the case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of payment in full, it being understood and agreed that
no expense incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Principal and
Interest Account or to the Indenture
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Trustee. In lieu of executing any such satisfaction or assignment, as the case
may be, the Servicer may prepare and submit to the Custodian, on behalf of the
Indenture Trustee, a satisfaction (or assignment without recourse, if requested
by the Person or Persons entitled thereto) in form for execution by the
Indenture Trustee with all requisite information completed by the Servicer; in
such event, the Custodian, on behalf of the Indenture Trustee shall execute and
acknowledge such satisfaction or assignment, as the case may be, and deliver the
same with the related File, as aforesaid.
(b) The Servicer shall have the right to accept applications of
Mortgagors for consent to (i) partial releases of Mortgages, (ii) alterations
and (iii) removal, demolition or division of properties subject to Mortgages. No
application for approval shall be considered by the Servicer without the prior
written consent of the Note Insurer unless: (x) the provisions of the related
Mortgage Note and Mortgage have been complied with; (y) the Loan-to-Value Ratio
and debt-to-income ratio after any release does not exceed the Loan-to-Value
Ratio and debt-to-income ratio of such Mortgage Note on the Cut-Off Date, and
any increase in the Loan-to-Value Ratio shall not exceed 5% unless approved in
writing by the Note Insurer; and (z) the lien priority of the related Mortgage
is not affected. Upon receipt by the Indenture Trustee of an Officer's
Certificate executed on behalf of the Servicer setting forth the action proposed
to be taken in respect of a particular Home Equity Loan and certifying that the
criteria set forth in the immediately preceding sentence have been satisfied,
the Indenture Trustee shall execute and deliver to the Servicer the consent or
partial release so requested by the Servicer. A proposed form of consent or
partial release, as the case may be, shall accompany any Officer's Certificate
delivered by the Servicer pursuant to this paragraph.
Section 4.15 Servicing Compensation.
As compensation for its activities hereunder, the Servicer shall be
entitled to retain the amount of the related Servicing Fee with respect to each
Home Equity Loan. Additional servicing compensation in the form of prepayment
charges, release fees, bad check charges, assumption fees, late payment charges,
prepayment penalties, or any other servicing-related fees, Net Liquidation
Proceeds not required to be deposited in the Principal and Interest Account
pursuant to Section 4.08(c)(i) and similar items may, to the extent collected
from Mortgagors, be retained by the Servicer, unless a successor Servicer is
appointed pursuant to Section 4.20 hereof, in which case the successor Servicer
shall be entitled to such fees as are agreed upon by the Indenture Trustee, the
Note Insurer, the successor Servicer and the majority of the Percentage
Interests of the Certificates.
The right to receive the Servicing Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Servicer's
responsibilities and obligations under this Agreement.
Section 4.16 Annual Statement as to Compliance.
The Servicer, at its own expense, will deliver to the Indenture
Trustee, the Note Insurer, the Depositor, the Issuer, and the Rating Agencies,
on or before April 30 of each year, commencing in 1999, an Officer's Certificate
stating, as to each signer thereof, that (i) a review of the activities of the
Servicer during such preceding calendar year and of performance under this
Agreement has been made under such officers' supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement for such year, or, if there has been a
default in the fulfillment of all such obligations, specifying each such default
known to such officers and the nature and status thereof including the steps
being taken by the Servicer to remedy such default.
The Servicer shall deliver to the Indenture Trustee, the Note Insurer
and the Rating Agencies, promptly after having obtained knowledge thereof but in
no event later than five Business Days thereafter, written notice by means of an
Officer's Certificate of any event which with the giving of notice or the lapse
of time would become a Servicer Termination Event.
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Section 4.17 Annual Independent Certified Public Accountants' Reports.
On or before April 30 of each year, commencing in 1999, the Servicer,
at its own expense (or if the Indenture Trustee is then acting as Servicer, at
the expense of the Seller, which in no event shall exceed $1,000 per annum),
shall cause to be delivered to the Indenture Trustee, the Note Insurer, the
Depositor, and the Rating Agencies a letter or letters of a firm of independent,
nationally recognized certified public accountants stating that such firm has
examined the Servicer's overall servicing operations in accordance with the
requirements of the Uniform Single Attestation Procedure for Mortgage Bankers,
and stating such firm's conclusions relating thereto.
Section 4.18 Access to Certain Documentation and Information Regarding
the Home Equity Loans.
The Servicer shall provide to the Seller, the Indenture Trustee, the
Note Insurer, the Office of Thrift Supervision (the "OTS"), the FDIC and the
supervisory agents and examiners of each of the FDIC and the OTS (which, in the
case of supervisory agents and examiners, may be required by applicable state
and federal regulations) access to the documentation regarding the Home Equity
Loans, such access being afforded without charge but only upon reasonable
request and during normal business hours at the offices of the Servicer
designated by it.
Section 4.19 Assignment of Agreement.
Other than with respect to entering into Sub-Servicing Agreements
pursuant to Section 4.03 hereof, the Servicer may not assign its obligations
under this Agreement, in whole or in part, unless it shall have first obtained
the written consent of the Indenture Trustee and the Note Insurer, which such
consent shall not be unreasonably withheld; provided, however, that any assignee
must meet the eligibility requirements set forth in Section 4.20(h) hereof for a
successor servicer.
Section 4.20 Removal of Servicer; Retention of Servicer; Resignation of
Servicer.
(a) The Note Insurer or the Indenture Trustee (with the prior written
consent of the Note Insurer) (or, except in the case of item (vi) below, the
Owners, with the consent of the Note Insurer) may remove the Servicer upon the
occurrence of any of the following events (each a "Servicer Termination Event"):
(i) The Servicer shall (A) apply for or consent to the
appointment of a receiver, trustee, liquidator or custodian or
similar entity with respect to itself or its property, (B) admit in
writing its inability to pay its debts generally as they become due,
(C) make a general assignment for the benefit of creditors, (D) be
adjudicated a bankrupt or insolvent, (E) commence a voluntary case
under the federal bankruptcy laws of the United States of America or
file a voluntary petition or answer seeking reorganization, an
arrangement with creditors or an order for relief or seeking to take
advantage of any insolvency law or file an answer admitting the
material allegations of a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding or (F) take
corporate action for the purpose of effecting any of the foregoing;
or
(ii) If without the application, approval or consent of the
Servicer, a proceeding shall be instituted in any court of competent
jurisdiction, under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking in respect of the
Servicer an order for relief or an adjudication in bankruptcy,
reorganization, dissolution, winding up, liquidation, a composition
or arrangement with creditors, a readjustment of debts, the
appointment of a trustee, receiver, liquidator or custodian or
similar entity with respect to the Servicer or of all or any
substantial part of its assets, or other like relief in respect
thereof under any bankruptcy or
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insolvency law, and, if such proceeding is being contested by the
Servicer in good faith, the same shall (A) result in the entry of an
order for relief or any such adjudication or appointment or (B)
continue undismissed or pending and unstayed for any period of
seventy-five (75) consecutive days; or
(iii) The Servicer shall fail to perform any one or more of
its material obligations hereunder and shall continue in default
thereof for a period of thirty (30) days (one (1) Business Day in the
case of a delay in making a payment required of the Servicer under
this Agreement) after the earlier of (A) actual knowledge of an
officer of the Servicer or (B) receipt of notice from the Indenture
Trustee or the Note Insurer of said failure; provided, however, that
if the Servicer can demonstrate to the reasonable satisfaction of the
Note Insurer that it is diligently pursuing remedial action, then the
cure period may be extended with the written approval of the Note
Insurer; or
(iv) The Servicer shall fail to cure any breach of any of its
representations and warranties set forth in Section 2.02 which
materially and adversely affects the interests of the Owners or the
Note Insurer for a period of sixty (60) days after the earlier of the
Servicer's discovery or receipt of notice thereof; provided, however,
that if the Servicer can demonstrate to the reasonable satisfaction
of the Note Insurer that it is diligently pursuing remedial action,
then the cure period may be extended with the written approval of the
Note Insurer; or
(v) The merger, consolidation or other combination of the
Servicer with or into any other entity, unless (A) the Servicer or an
Affiliate of the Servicer is the surviving entity of such combination
or (B) the surviving entity (I) is servicing at least $300,000,000 of
home equity loans that are similar to the Home Equity Loans, (II) has
equity of not less than $10,000,000 (as determined in accordance with
generally acceptable account principles), (III) is consented to by
the Note Insurer (such consent not to be unreasonably withheld) and
(IV) agrees to assume the Servicer's obligations thereunder; or
(vi) The failure of the Servicer (except the Indenture Trustee
in its capacity as successor Servicer) to satisfy the Servicer
Termination Test.
(b) The Servicer shall act as servicer under this Agreement, subject to
the right of removal set forth in subsection (a) hereof, for an initial period
commencing on Closing Date and ending on March 31, 1999, which period may be
extended by the Note Insurer in its sole discretion for a succeeding quarterly
period on December 31, March 31, June 30 and September 30 of each year as
provided below (each such quarterly period for which the Servicer shall be
designated to act as servicer hereunder, a "Term of Service"); provided that
nothing in this Section 4.20(b) shall prohibit the Note Insurer or the Indenture
Trustee from removing the Servicer pursuant to Section 4.20(a). Notwithstanding
the foregoing, the Note Insurer may, in its sole discretion, extend the period
for which the Servicer is to act as such for a period in excess of one quarter
(provided such extension shall be an additional one or more quarters), but any
such extension shall be revocable at any time by the Note Insurer upon written
notice delivered to the Indenture Trustee and the Servicer at least fifteen days
prior to the expiration of the related quarterly period.
(c) The Note Insurer agrees to use its best efforts to inform the
Indenture Trustee of any materially adverse information regarding the Servicer's
servicing activities that comes to the attention of the Note Insurer from time
to time.
(d) The Servicer shall not resign from the obligations and duties
hereby imposed on it, except upon determination that its duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it, the other activities
of the
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Servicer so causing such a conflict being of a type and nature carried on by the
Servicer at the date of this Agreement. Any such determination permitting the
resignation of the Servicer shall be evidenced by an opinion of counsel
acceptable to the Indenture Trustee and the Note Insurer at the expense of the
Servicer to such effect which shall be delivered to the Indenture Trustee and
the Note Insurer.
(e) No removal or resignation of the Servicer shall become effective
until the Indenture Trustee or a successor Servicer shall have assumed the
Servicer's responsibilities and obligations in accordance with this Section.
(f) Upon removal or resignation of the Servicer, the Servicer at its
own expense also shall promptly deliver or cause to be delivered to a successor
servicer or the Indenture Trustee all the books and records (including, without
limitation, records kept in electronic form) that the Servicer has maintained
for the Home Equity Loans, including all tax bills, assessment notices,
insurance premium notices and all other documents as well as all original
documents then in the Servicer's possession.
(g) Any collections then being held by the Servicer prior to its
removal and any collections received by the Servicer after removal or
resignation shall be endorsed by it to the Indenture Trustee and remitted
directly and immediately to the Indenture Trustee or the successor Servicer.
(h) Upon removal or resignation of the Servicer, the Indenture Trustee
may (i) solicit bids for a successor servicer as described below or (ii) shall
appoint the Backup Servicer as Servicer. If the Indenture Trustee elects to
solicit bids for a successor Servicer, the Indenture Trustee agrees to act as
Backup Servicer during the solicitation process and shall assume all duties of
the Servicer (except as otherwise provided in this Agreement). The Indenture
Trustee shall, if it is unable to obtain a qualifying bid and is prevented by
law from acting as Servicer, appoint, or petition a court of competent
jurisdiction to appoint, any housing and home finance institution, bank or
mortgage servicing institution and having equity of not less than $15,000,000
(or such lower level as may be acceptable to the Note Insurer), as determined in
accordance with generally accepted accounting principles and acceptable to the
Note Insurer as the successor to the Servicer hereunder in the assumption of all
or any part of the responsibilities, duties or liabilities of the Servicer
hereunder. The compensation of any successor Servicer (other than the Indenture
Trustee in its capacity as successor Servicer) so appointed shall be the amount
agreed to between the successor Servicer, the Note Insurer and the majority of
the Percentage Interests of the Certificates (up to a maximum of 0.50% per annum
on each Home Equity Loan) together with the other servicing compensation in the
form of assumption fees, late payment charges or otherwise as provided in
Sections 4.08 and 4.15; provided, however, that in the event that no reasonable
entity (other than the Indenture Trustee in its capacity as successor Servicer)
is willing to assume the capacity of successor Servicer hereunder for a
compensation of no more than 0.50% per annum on each Home Equity Loan, then the
Note Insurer shall solicit bids for the right to service the Home Equity Loans
from three potential successor servicers listed at such time as approved
servicers by Standard & Poor's for residential subprime servicing. In the event
that the bids received are between 0.50% and 0.75% per annum per Home Equity
Loan, the Owners of a majority of the Certificates shall choose the successor
Servicer from among such bidders. In the event that the bids received are for
greater than 0.75% per annum per Home Equity Loan, the Owners of a majority of
the Certificates may reject all such bids. Notwithstanding the foregoing, in the
event that the Indenture Trustee becomes the successor Servicer it shall receive
as its compensation the same compensation paid to the Servicer immediately prior
to the Servicer's removal or resignation.
(i) In the event the Indenture Trustee elects to solicit bids as
provided above, the Indenture Trustee shall solicit, by public announcement,
bids from housing and home finance institutions, banks and mortgage servicing
institutions meeting the qualifications set forth above. Such public
announcement shall specify that the successor Servicer shall be entitled to
servicing compensation in accordance with clause (h) above, together with the
other servicing compensation in the form of assumption fees, late payment
charges
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or otherwise as provided in Sections 4.08 and 4.15. Within thirty days after any
such public announcement, the Indenture Trustee shall negotiate and effect the
sale, transfer and assignment of the servicing rights and responsibilities
hereunder to the qualified party submitting the highest satisfactory bid as to
the price it will pay to obtain servicing. The Indenture Trustee shall deduct
from any sum received by the Indenture Trustee from the successor to the
Servicer in respect of such sale, transfer and assignment all costs and expenses
of any public announcement and of any sale, transfer and assignment of the
servicing rights and responsibilities hereunder. After such deductions, the
remainder of such sum less any amounts due the Indenture Trustee or the Trust
from the Servicer shall be paid by the Indenture Trustee to the Servicer at the
time of such sale, transfer and assignment to the Servicer's successor.
(j) The Indenture Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession, including the notification to all Mortgagors of the transfer of
servicing. The Servicer agrees to cooperate with the Indenture Trustee and any
successor Servicer in effecting the termination of the Servicer's servicing
responsibilities and rights hereunder and shall promptly provide the Indenture
Trustee or such successor Servicer, as applicable, all documents and records
reasonably requested by it to enable it to assume the Servicer's functions
hereunder and shall promptly also transfer to the Indenture Trustee or such
successor Servicer, as applicable, all amounts which then have been or should
have been deposited in the Principal and Interest Account by the Servicer or
which are thereafter received with respect to the Home Equity Loans. Neither the
Indenture Trustee nor any other successor Servicer shall be held liable by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Servicer to
deliver, or any delay in delivering, cash, documents or records to it, or (ii)
restrictions imposed by any regulatory authority having jurisdiction over the
Servicer.
(k) The Indenture Trustee or any other successor Servicer, upon
assuming the duties of Servicer hereunder, shall immediately (i) record all
assignments of Home Equity Loans not previously recorded in the name of the
Indenture Trustee pursuant to Section 2.05(b)(ii) as a result of an opinion of
counsel and (ii) make all Delinquency Advances and Compensating Interest
payments and deposit them to the Principal and Interest Account which the
Servicer has theretofore failed to remit with respect to the Home Equity Loans;
provided, however, that if the Indenture Trustee is acting as successor
Servicer, the Indenture Trustee shall only be required to make Delinquency
Advances (including the Delinquency Advances described in this clause (k)) if,
in the Indenture Trustee's reasonable good faith judgment, such Delinquency
Advances will ultimately be recoverable from the Home Equity Loans.
(l) The Servicer which is being removed or is resigning shall give
notice to the Mortgagors, to Moody's and to Standard & Poor's of the transfer of
the servicing to the successor.
(m) The Indenture Trustee shall give notice to the Note Insurer, the
Owners, the Owner Trustee, the Seller, Moody's and Standard & Poor's of the
occurrence of any event described in paragraph (a) above of which the Indenture
Trustee is aware.
Section 4.21 Inspections by Note Insurer; Errors and Omissions
Insurance.
(a) At any reasonable time during business hours and from time to time
upon reasonable notice, the Indenture Trustee, the Note Insurer, any Owner or
the Issuer, or any agents thereof may inspect the Servicer's servicing
operations and discuss the servicing operations of the Servicer during the
Servicer's normal business hours with any of its officers or directors;
provided, however, that the costs and expenses incurred by the Servicer or its
agents or representatives in connection with any such examinations or
discussions shall be paid by the Servicer.
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(b) The Servicer (including the Indenture Trustee if it shall become
the Servicer hereunder) agrees to maintain errors and omissions coverage and a
fidelity bond in the form and amount that would meet the requirements of Fannie
Mae, unless the Servicer has obtained a waiver of such requirements from Fannie
Mae. The Servicer shall be deemed to have complied with this provision if an
affiliate of the Servicer has such errors and omissions policy and fidelity bond
coverage and, by the terms of such insurance policy and fidelity bond, the
coverage afforded thereunder extends to the Servicer.
Section 4.22 Additional Servicing Responsibilities for Second Mortgage
Loans.
If the Servicer is notified that any superior lienholder has
accelerated or intends to accelerate the obligations under a First Mortgage
Loan, or has declared or intends to declare a default under the mortgage or the
promissory note secured thereby, or has filed or intends to file an election to
have the Property sold or foreclosed, the Servicer shall take, on behalf of the
Trust, whatever actions are necessary to protect the interests of the Owners and
the Note Insurer, and/or to preserve the security of the related Home Equity
Loan. The Servicer shall advance the necessary funds to cure the default or
reinstate the lien securing a First Mortgage Loan, if such advance is in the
best interests of the Note Insurer and the Owners; provided, however, that no
such additional advance need be made if such advance would be nonrecoverable.
The Servicer shall thereafter take such action as is necessary to recover the
amount so advanced. Any expenses incurred by the Servicer pursuant to this
Section 4.22 shall be Servicing Advances.
Section 4.23 Adjustable Rate Home Equity Loans.
The Servicer shall enforce each Home Equity Loan in accordance with its
terms and shall timely calculate, record, report and apply all interest rate
adjustments in accordance with the related Mortgage Note. The Servicer's records
shall, at all times, reflect the then current Coupon Rate and monthly payment
and the Servicer shall timely notify the Mortgagor of any changes to the Coupon
Rate or the Mortgagor's monthly payment. If the Servicer fails to make either a
timely or accurate adjustment to the Coupon Rate or monthly payment or to notify
the Mortgagor of such adjustments, upon the Servicer's discovery of such error
and such continued failure, the Servicer shall pay from its own funds any
shortage. If the Servicer's continued failure after notice thereof to make a
scheduled change affects the Trust's rights to make future adjustments under the
terms of such Home Equity Loan, the Servicer shall repurchase such Home Equity
Loan in accordance with the provisions of Article II hereof. Any amounts paid by
the Servicer pursuant to this Section shall not be an advance and shall not be
reimbursable from the proceeds of any Home Equity Loan.
Section 4.24 Administration of the Issuer. The Depositor agrees to
assist the Issuer in performing its duties hereunder and
under the Indenture.
END OF ARTICLE IV
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ARTICLE V
TERMINATION
Section 5.01 Termination.
This Agreement will terminate upon notice to the Indenture Trustee of
either: (a) the later of (i) the satisfaction and discharge of the Indenture
pursuant to Section 4.1 of the Indenture or (ii) the disposition of all funds
with respect to the last Home Equity Loan and the remittance of all funds due
hereunder and the payment of all amounts due and payable to the Indenture
Trustee, the Servicer, the Owner Trustee, the Issuer, the Custodian and the Note
Insurer; or (b) the mutual consent of the Servicer, the Seller, the Depositor,
the Note Insurer and all Owners in writing.
Section 5.02 Termination Upon Auction Sale.
(a) On the Bid Solicitation Commencement Date for each Loan Pool, the
Indenture Trustee shall solicit bids for the purchase of all Home Equity Loans
remaining in such Loan Pool at a price equal to no less than the related
Redemption Price. Such solicitation shall be conducted substantially in the
manner described in Exhibit E hereto. In the event that satisfactory bids are
received as described in Exhibit E and an Auction Sale occurs, the proceeds of
the sale of such Home Equity Loans shall be deposited in the related Note
Account.
(b) If satisfactory bids are not received within 30 days of the Bid
Solicitation Commencement Date or Bid Solicitation Date, as the case may be, the
Indenture Trustee shall terminate the solicitation of bids and shall hold a new
auction on each Bid Solicitation Date until such Home Equity Loans are sold.
(c) Upon consummation of the sale of the Home Equity Loans in the
related Loan Pool, the Indenture Trustee shall use the proceeds of the sale to
reimburse the Indenture Trustee, the Owner Trustee, the Note Insurer and the
Servicer the amounts set forth in items (ii), (iii), (iv) and (vi) of the
definition of "Redemption Price," deposit the Auction Sale Reserve Deposit in
the Reserve Account, provide the amount set forth in item (i) of the definition
of "Redemption Price" to the Issuer to be used by the Issuer to redeem the
related Series of Notes pursuant to Article X of the related Indenture and
deposit any remainder in the Certificate Distribution Account.
(d) If an Auction Sale on both Loan Pools has not occurred, the
Servicer and the Note Insurer (in that order) have the right to purchase all of
the Home Equity Loans in both Loan Pools at the Redemption Price on any Monthly
Remittance Date on or after the Clean Up Call Date.
(e) Promptly following any purchase described in this Section 5.02, the
Indenture Trustee will or cause the Custodian to release the Files to the
successful bidder at the Auction Sale or the Servicer or the Note Insurer in the
event of a clean up call or otherwise upon their order, in a manner similar to
that described in Section 4.14 hereof.
Section 5.03 Redemption of Notes. Upon any Auction Sale or clean up
described in Section 5.02, the Issuer shall use the proceeds it receives to
redeem the related Series of Notes, in whole and not in part, and terminate the
Indenture. A Series of Notes will be redeemed upon payment of the related
Redemption Price, and the payment of the amount set forth in clause (i) of the
definition of Redemption Price set forth
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in Section 5.02 to the Owners of such Notes shall be in lieu of the payment
otherwise required to be made to the Owners on such Payment Date in respect of
such Notes.
Section 5.04 Disposition of Proceeds.
The Indenture Trustee shall, upon receipt thereof, deposit the proceeds
of any liquidation of the Trust Estate pursuant to this Article V to the related
Note Account; provided, however, that any amounts representing unreimbursed
Delinquency Advances and Servicing Advances theretofore funded by the Servicer
from the Servicer's own funds shall be paid by the Indenture Trustee to the
Servicer from the proceeds of the Trust Estate.
END OF ARTICLE V
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ARTICLE VI
MISCELLANEOUS
Section 6.01 Acts of Owners.
Except as otherwise specifically provided herein, whenever Owner
action, consent or approval is required under this Agreement, such action,
consent or approval shall be deemed to have been taken or given on behalf of,
and shall be binding upon, all Owners if the Owners of the majority of the
Percentage Interest of the Notes agree to take such action or give such consent
or approval.
Section 6.02 Recordation of Agreement.
To the extent permitted by applicable law, this Agreement, or a
memorandum thereof if permitted under applicable law, is subject to recordation
in all appropriate public offices for real property records in all of the
counties or other comparable jurisdictions in which any or all of the Properties
are situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at the Owners' expense on
direction of the Owners of the majority of the Percentage Interest of the Notes
or the Note Insurer, but only when accompanied by an opinion of counsel to the
effect that such recordation materially and beneficially affects the interests
of the Owners or is necessary for the administration or servicing of the Home
Equity Loans.
Section 6.03 Duration of Agreement.
This Agreement shall continue in existence and effect until terminated
as herein provided.
Section 6.04 Successors and Assigns.
All covenants and agreements in this Agreement by any party hereto
shall bind its successors and assigns, whether so expressed or not.
Section 6.05 Severability.
In case any provision in this Agreement or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 6.06 Governing Law; Submission to Jurisdiction.
(a) In view of the fact that Owners are expected to reside in many
states and outside the United States and the desire to establish with certainty
that this Agreement will be governed by and construed and interpreted in
accordance with the law of a state having a well-developed body of commercial
and financial law relevant to transactions of the type contemplated herein, this
Agreement and each Note shall be construed in accordance with and governed by
the laws of the State of New York applicable to agreements made and to be
performed therein, without giving effect to the conflicts of law principles
thereof.
(b) The parties hereto hereby irrevocably submit to the jurisdiction of
the United States District Court for the Southern District of New York and any
court in the State of New York located in the City and County of New York, and
any appellate court from any thereof, in any action, suit or proceeding brought
against it or in connection with this Agreement or any of the related documents
or the transactions
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contemplated hereunder or for recognition or enforcement of any judgment, and
the parties hereto hereby irrevocably and unconditionally agree that all claims
in respect of any such action or proceeding may be heard or determined in such
New York State court or, to the extent permitted by law, in such federal court.
The parties hereto agree that a final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. To the extent
permitted by applicable law, the parties hereto hereby waive and agree not to
assert by way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
such courts, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that the
related documents or the subject matter thereof may not be litigated in or by
such courts.
(c) Each of the Depositor, the Issuer and the Seller hereby irrevocably
appoints and designates the Indenture Trustee as its true and lawful attorney
and duly authorized agent for acceptance of service of legal process with
respect to any action, suit or proceeding set forth in paragraph (b) above. Each
of the Issuer, the Seller and the Depositor agrees that service of such process
upon the Indenture Trustee shall constitute personal service of such process
upon it.
(d) Nothing contained in this Agreement shall limit or affect the right
of the Depositor, the Issuer, the Seller, the Servicer or the Note Insurer or
third-party beneficiary hereunder, as the case may be, to serve process in any
other manner permitted by law or to start legal proceedings relating to any of
the Home Equity Loans against any Mortgagor in the courts of any jurisdiction.
Section 6.07 Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 6.08 Amendment.
(a) The Indenture Trustee, the Depositor, the Issuer, the Seller and
the Servicer, may at any time and from time to time, with the prior written
approval of the Note Insurer but without the giving of notice to or the receipt
of the consent of the Owners, amend this Agreement, and the Indenture Trustee
shall consent to the amendment for the purposes of (i) curing any ambiguity,
(ii) correcting or supplementing any provisions of this Agreement which are
inconsistent with any other provisions of this Agreement or adding provisions to
this Agreement which are not inconsistent with the provisions of this Agreement,
(iii) adding any other provisions with respect to matters or questions arising
under this Agreement, or (iv) for any other purpose, provided that such
amendment shall not adversely affect in any material respect any Owner. Any such
amendment shall be deemed not to adversely affect in any material respect any
Owner if there is delivered to the Indenture Trustee written notification from
each Rating Agency that such amendment will not cause such Rating Agency to
reduce its then current rating assigned to the Notes. Notwithstanding anything
to the contrary, no such amendment shall (A) change in any manner the amount of,
or delay the timing of, payments which are required to be distributed to any
Owner without the consent of the Owner of such Note, (B) change the percentages
of Percentage Interest which are required to consent to any such amendments,
without the consent of the Owners of all Notes affected then outstanding or (C)
which affects in any manner the terms or provisions of the Note Insurance
Policy.
(b) This Agreement may also be amended from time to time by the Seller,
the Servicer, the Depositor and the Issuer by written agreement, with the prior
written consent of the Owners of the majority of the Percentage Interests in the
Notes and the Note Insurer, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
or of modifying in any
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manner the rights of the Owners; provided, however, that no such amendment shall
(i) reduce in any manner the amount of, or delay the timing of, collections of
payments on Home Equity Loans or distributions which are required to be made on
any Note, without the consent of the holders of 100% of the Notes, (ii)
adversely affect in any material respect the interests of the holders of the
Notes in any manner other than as described in (i), without the consent of the
holders of 100% of the Notes, or (iii) reduce the percentage of Notes, the
holders of which are required to consent to any such amendment, without the
consent of the holders of 100% of the Notes.
(c) The Note Insurer and the Rating Agencies shall be provided by the
Seller with copies of any amendments to this Agreement, together with copies of
any opinions or other documents or instruments executed in connection therewith.
Section 6.09 Specification of Certain Tax Matters.
Each Owner shall provide the Indenture Trustee with a completed and
executed From W-9 prior to purchasing a Note. The Indenture Trustee shall comply
with all requirements of the Code, and applicable state and local law, with
respect to the withholding from any distributions made to any Owner of any
applicable withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
Section 6.10 The Note Insurer.
Any right conferred to the Note Insurer hereunder shall be suspended
and shall run to the benefit of the Owners during any period in which there
exists a Note Insurer Default; provided, that the right of the Note Insurer to
receive the Premium Amount shall not be suspended if such Note Insurer Default
was a default other than a default under clause (a) of the definition thereof.
At such time as the Notes are no longer Outstanding hereunder and the Note
Insurer has received all Reimbursement Amounts, the Note Insurer's rights
hereunder shall terminate.
Section 6.11 Third Party Rights.
The Indenture Trustee, the Seller, the Issuer, the Depositor, the
Servicer, and the Owners agree that the Note Insurer shall be deemed a
third-party beneficiary of this Agreement as if it were a party hereto.
Section 6.12 Notices.
All notices hereunder shall be given as follows, until any superseding
instructions are given to all other Persons listed below:
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The Indenture Trustee: The Chase Manhattan Bank
450 W. 33rd Street, 14th Floor
New York, NY 10001
Attention: Structured Finance Services, IMC 1998-7
Tel: (212) 946-8600
Fax: (212) 946-3240
The Depositor: IMC Securities, Inc.
5901 East Fowler Avenue
Tampa, Florida 33617-2362
Tel: (813) 984-8801
Fax: (813) 984-2595
The Issuer: IMC Home Equity Loan Owner Trust 1998-7
c/o Wilmington Trust Company, as Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Tel: (302) 651-8775
Fax: (302) 651-1576
The Seller: IMC Mortgage Company
5901 East Fowler Avenue
Tampa, FL 33617-2362
Tel: (813) 984-8801
Fax: (813) 984-2595
The Servicer: Ocwen Federal Bank FSB
1675 Palm Beach Lakes Boulevard
Suite 1002
West Palm Beach, Florida 33401
Attention: Secretary
Tel: (561) 682-8000
Fax: (561) 682-8177
The Note
Insurer: Financial Security Assurance Inc.
350 Park Avenue
New York, New York 10022
Attention: Surveillance Department
Re: IMC Home Equity Loan Owner Trust 1998-7
Tel: (212) 339-3436
Fax: (914) 888-5278
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The Underwriter: PaineWebber Incorporated
1285 Avenue of the Americas
11th Floor
New York, New York 10019
Attention: Barbara Dawson (cc: John Fearey)
Tel: (212) 713-8376
Fax: (212) 713-7999
Moody's: Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: The Residential Mortgage
Monitoring Department
Tel: (212) 553-0300
Fax: (212) 553-0355
Standard & Poor's: Standard & Poor's Ratings Services,
a division of the McGraw-Hill Companies, Inc.
26 Broadway
15th Floor
New York, New York 10004
Attention: Residential Mortgage Group
Tel: (212) 208-8000
Fax: (212) 208-8365
Section 6.13 Benefits of Agreement.
Nothing in this Agreement or in the Notes, expressed or implied, shall
give to any Person, other than the Owners, the Note Insurer and the parties
hereto and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
Section 6.14 Legal Holidays.
In any case where the date of any Payment Date, any other date on which
any distribution to any Owner is proposed to be paid, or any date on which a
notice is required to be sent to any Person pursuant to the terms of this
Agreement (with the exception of any Monthly Remittance Date or any Monthly
Reporting Date) shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Agreement) payment or mailing need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made or mailed on the nominal date of any such Payment
Date, or such other date for the payment of any distribution to any Owner or the
mailing of such notice, as the case may be, and no interest shall accrue for the
period from and after any such nominal date, provided such payment is made in
full on such next succeeding Business Day. In any case where the date of any
Monthly Remittance Date or any Monthly Reporting Date shall not be a Business
Day, then payment or mailing need not be made on such date, but must be made on
the preceding Business Day.
Section 6.15 Usury.
The amount of interest payable or paid on any Note under the terms of
this Agreement shall be limited to an amount which shall not exceed the maximum
nonusurious rate of interest allowed by the applicable laws of the State of New
York or any applicable law of the United States permitting a higher maximum
nonusurious rate that preempts such applicable New York laws, which could
lawfully be
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contracted for, charged or received (the "Highest Lawful Rate"). In the event
any payment of interest on any Note exceeds the Highest Lawful Rate, the Trust
stipulates that such excess amount will be deemed to have been paid to the Owner
of such Note as a result of an error on the part of the Indenture Trustee acting
on behalf of the Trust and the Owner receiving such excess payment shall
promptly, upon discovery of such error or upon notice thereof from the Indenture
Trustee on behalf of the Trust, refund the amount of such excess or, at the
option of such Owner, apply the excess to the payment of principal of such Note,
if any, remaining unpaid. In addition, all sums paid or agreed to be paid to the
Indenture Trustee for the benefit of Owners of Notes for the use, forbearance or
detention of money shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of such
Notes.
Section 6.16 No Petition. The Indenture Trustee, the Depositor, the
Seller and the Servicer, by entering into this Agreement, and each Owner, by
accepting a Note, hereby covenant and agree that they will not at any time
institute against the Seller, the Servicer, the Depositor or the Issuer, or join
in any institution against the Seller, the Servicer, the Depositor or the Issuer
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Agreement or any of the Operative Documents.
END OF ARTICLE VI
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ARTICLE VII
CERTAIN MATTERS REGARDING THE NOTE INSURER
Section 7.01 Trust Estate and Accounts Held for Benefit of the Note
Insurer.
The Indenture Trustee shall hold the Trust Estate for the benefit of
the related Owners and the Note Insurer and all references in this Agreement and
in the Notes to the benefit of Owners of the Notes shall be deemed to include
the Note Insurer. The Indenture Trustee shall cooperate in all reasonable
respects with any reasonable request by the Note Insurer for action to preserve
or enforce the Note Insurer's rights or interests under this Agreement and the
Notes.
The Servicer hereby acknowledges and agrees that it shall service and
administer the Home Equity Loans and any REO Properties, and shall maintain the
Principal and Interest Account, for the benefit of the Owners and for the
benefit of the Note Insurer, and all references in this Agreement to the benefit
of or actions on behalf of the Owners shall be deemed to include the Note
Insurer.
Section 7.02 Claims Upon the Policy; Policy Payments Account.
(a) In the event that an Insured Payment becomes due pursuant to the
terms of the Note Insurance Policy, the Indenture Trustee shall submit a Notice
(in the form attached to such Note Insurance Policy) in accordance with the
terms of such Note Insurance Policy.
(b) The Indenture Trustee shall establish a separate special purpose
trust account for the benefit of the Owners of the Notes and the Note Insurer
referred to herein as the "Policy Payments Account" over which the Indenture
Trustee shall have exclusive control and sole right of withdrawal. The Indenture
Trustee shall deposit any amount paid under a Note Insurance Policy in the
Policy Payments Account and distribute such amount only for purposes of payment
to the Owners of the Notes of the Insured Payments for which a claim was made
and such amount may not be applied to satisfy any costs, expenses or liabilities
of the Servicer, the Seller, the Depositor, the Custodian, the Indenture Trustee
or the Trust. Amounts paid under the Note Insurance Policy shall be transferred
to the Note Account in accordance with the next succeeding paragraph and
disbursed by the Indenture Trustee to Owners of the Notes in accordance with
Section 3.03. It shall not be necessary for such payments to be made by checks
or wire transfers separate from the checks or wire transfers used to pay the
Insured Payments with other funds available to make such payment. However, the
amount of any payment of principal of or interest on the Notes to be paid from
funds transferred from the Policy Payments Account shall be noted as provided in
paragraph (c) below in the Register and in the statement to be furnished to
Owners of the Notes pursuant to Section 3.08. Funds held in the Policy Payments
Account shall not be invested by the Indenture Trustee.
On any Payment Date with respect to which a claim has been made under
the Note Insurance Policy, the amount of funds received by the Indenture Trustee
as a result of any claim under the Note Insurance Policy, to the extent required
to make the Insured Payment on such Payment Date shall be withdrawn from the
Policy Payments Account and deposited in the Note Account and applied by the
Indenture Trustee, together with the other funds to be withdrawn from the Note
Account, directly to the payment in full of the Insured Payment due on the
Notes. Funds received by the Indenture Trustee as a result of any claim under
the Note Insurance Policy shall be deposited by the Indenture Trustee in the
Policy Payments Account and used solely for payment to the Owners of the Notes
may not be applied to satisfy any costs, expenses or liabilities of the
Servicer, the Seller, the Depositor, the Custodian, the Indenture Trustee or the
Trust. Any funds remaining in the Policy Payments Account on the first Business
Day following a Payment Date shall be remitted to the Note Insurer, pursuant to
the instructions of the Note Insurer, by the end of such Business Day.
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(c) The Indenture Trustee shall keep a complete and accurate record of
the amount of interest and principal paid in respect of any Note from moneys
received under the Note Insurance Policy. The Note Insurer shall have the right
to inspect such records at reasonable times during normal business hours upon
one Business Day's prior notice to the Indenture Trustee.
(d) The Indenture Trustee shall promptly notify the Note Insurer and
the Fiscal Agent (as defined in the Note Insurance Policy) of any proceeding or
the institution of any action, of which an Authorized Officer of the Indenture
Trustee has actual knowledge, seeking the avoidance as a preferential transfer
under applicable bankruptcy, insolvency, receivership or similar law (a
"Preference Claim") of any distribution made with respect to the Notes. Each
Owner of a Note by its purchase of such Note, the Servicer and the Indenture
Trustee hereby agree that, the Note Insurer (so long as no Note Insurer Default
exists) may at any time during the continuation of any proceeding relating to a
Preference Claim direct all matters relating to such Preference Claim, including
without limitation, (i) the direction of any appeal of any order relating to
such Preference Claim and (ii) the posting of any surety, supersedeas or
performance bond pending any such appeal. In addition and without limitation of
the foregoing, the Note Insurer shall be subrogated to the rights of the
Servicer, the Indenture Trustee and each Owner of a Note in the conduct of any
such Preference Claim, including, without limitation, all rights of any party to
an adversary proceeding action with respect to any court order issued in
connection with any such Preference Claim.
(e) The Indenture Trustee shall, upon retirement of the Notes, furnish
to the Note Insurer a notice of such retirement, and, upon the retirement of the
Notes and the expiration of the term of the Note Insurance Policy, surrender the
Note Insurance Policy to the Note Insurer for cancellation.
Section 7.03 Effect of Payments by the Note Insurer; Subrogation.
Anything herein to the contrary notwithstanding, any payment with
respect to principal of or interest on any of the Notes which is made with
moneys received pursuant to the terms of the Note Insurance Policy shall not be
considered payment of such Notes from the Trust and shall not result in the
payment of or the provision for the payment of the principal of or interest on
such Notes within the meaning of Section 3.03. The Depositor, the Servicer and
the Indenture Trustee acknowledge, and each Owner by its acceptance of a Note
agrees, that without the need for any further action on the part of the Note
Insurer, the Depositor, the Servicer, the Indenture Trustee or the Registrar (a)
to the extent the Note Insurer makes payments, directly or indirectly, on
account of principal of or interest on any Notes to the Owners of such Notes,
the Note Insurer will be fully subrogated to the rights of such Owners to
receive such principal and interest from the Trust and (b) the Note Insurer
shall be paid such principal and interest but only from the sources and in the
manner provided herein for the payment of such principal and interest.
The Indenture Trustee, the Seller, the Depositor and the Servicer shall
cooperate in all respects with any reasonable request by the Note Insurer for
action to preserve or enforce the Note Insurer's rights or interests under this
Agreement without limiting the rights or affecting the interests of the Owners
as otherwise set forth therein.
Section 7.04 Notices to the Note Insurer.
All notices, statements, reports, certificates or opinions required by
this Agreement to be sent to any other party hereto or to any of the Owners
shall also be sent to the Note Insurer.
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Section 7.05 Rights to the Note Insurer To Exercise Rights of Owners.
By accepting its Note, each Owner agrees that unless a Note Insurer
Default exists, the Note Insurer shall have the right to exercise all rights of
the Owners as specified under this Agreement without any further consent of the
Owners.
END OF ARTICLE VII
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IN WITNESS WHEREOF, the Issuer, the Depositor, the Seller, the
Servicer and the Indenture Trustee have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized, all as of the
day and year first above written.
IMC HOME EQUITY LOAN OWNER TRUST 1998-7
By: WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Emmett R. Harmon
------------------------
Name: Emmett R. Harmon
Title: Vice President
IMC SECURITIES, INC.
as Depositor
By: /s/ George Nicholas
------------------------
Name: George Nicholas
Title: Chief Executive Officer
IMC MORTGAGE COMPANY,
as Seller
By: /s/ George Nicholas
-----------------------
Name: George Nicholas
Title: Chief Executive Officer
OCWEN FEDERAL BANK FSB,
as Servicer
By: /s/ Jon E. Voigtman
-----------------------
Name: Jon E. Voigtman
Title: Vice President
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s/ Jennifer Cupo
-----------------------
Name: Jennifer Cupo
Title: Assistant Vice President
<PAGE>
STATE OF FLORIDA )
: ss.:
COUNTY OF HILLSBOROUGH )
On the 10th day of December, 1998, before me, a notary public in and
for the State of Florida, personally appeared George Nicholas to me known to me,
who, being by me duly sworn, did depose and say that he resides at 5003 Paloma
Drive, Tampa, FL 33624; that he is the Chief Executive Officer of IMC
Securities, Inc., a Delaware corporation; one of the parties that executed the
foregoing instrument; and that he signed his name thereto by order of the Board
of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
/s/ Jennifer L. Ellis
---------------------
Notary Public
Notary Public, State of Florida
My Commission Expires: September 28, 2002
<PAGE>
STATE OF FLORIDA )
: ss.:
COUNTY OF HILLSBOROUGH )
On the 10th day of December, 1998, before me personally came George
Nicholas, to me known, who, being by me duly sworn, did depose and say that he
resides at 5003 Paloma Drive, Tampa, FL 33624; that he is Chief Executive
Officer of IMC Mortgage Company, a Florida corporation; and that he signed his
name thereto by order of the respective Boards of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
/s/ Jennifer L. Ellis
---------------------
Notary Public
Notary Public, State of Florida
My Commission Expires: September 28, 2002
<PAGE>
STATE OF DELAWARE )
: ss.:
COUNTY OF NEW CASTLE )
On the 9th day of December, 1998, before me personally came Emmett R.
Harmon, to me known, who, being by me duly sworn did depose and say that he/she
resides at Wilmington, Delaware; that he/she is Vice President of Wilmington
Trust Company, a Delaware banking corporation described in and that executed the
above instrument as Owner Trustee; and that he/she signed his/her name thereto
by order of the Board of Directors of said Delaware banking corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
/s/ Kathleen A. Pedelini
------------------------
Notary Public
Notary Public, State of Delaware
My Commission Expires: October 31, 2002
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 10th day of December, 1998, before me personally came Jennifer
Cupo, to me known, who, being by me duly sworn did depose and say that he/she
resides at 450 W. 33rd St.; that he/she is an Assistant Vice President of The
Chase Manhattan Bank, the New York banking corporation described in and that
executed the above instrument as Indenture Trustee; and that he/she signed
his/her name thereto by order of the Board of Directors of said New York banking
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
/s/ Jill G. Chavooshian
-----------------------
Notary Public
Notary Public, State of New York
My Commission Expires: March 10, 1999
<PAGE>
STATE OF FLORIDA )
: ss.:
COUNTY OF PALM BEACH )
On the 8th day of December, 1998, before me, a notary public in and for
the State of Florida, personally appeared Jon E. Voigtman, known to me to be a
Vice President of Ocwen Federal Bank FSB, a federal savings bank that executed
the within instrument and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
/s/ Patricia N. Costigan
------------------------
Notary Public
Notary Public, State of Florida
My Commission Expires: March 7, 2000
<PAGE>
SCHEDULE IA
SCHEDULE OF HOME EQUITY LOANS IN LOAN POOL I
A copy of this Schedule is maintained by the Indenture Trustee at the
Corporate Trust Office and by the Servicer.
<PAGE>
SCHEDULE IB
SCHEDULE OF HOME EQUITY LOANS IN LOAN POOL II
A copy of this Schedule is maintained by the Indenture Trustee at the
Corporate Trust Office and by the Servicer.
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE RE: HOME EQUITY LOANS
PREPAID IN FULL AFTER CUT-OFF DATE
CERTIFICATE RE: PREPAID LOANS
I, __________________________, _______________ of IMC Mortgage Company
("IMC"), hereby certify that between the "Cut-Off Date" (as defined in the Sale
and Servicing Agreement dated as of December 1, 1998 among IMC Securities, Inc.,
as Depositor, IMC, as Seller, Ocwen Federal Bank FSB, as Servicer, IMC Home
Equity Loan Owner Trust 1998-7, as Issuer and The Chase Manhattan Bank, as
Indenture Trustee) and the "Closing Date," the following schedule of "Home
Equity Loans" (each as defined in the Sale and Servicing Agreement) have been
prepaid in full.
Account Original Current Date Paid
Number Name Amount Balance Off
------ ---- ------ ------- ---
Dated: December __, 1998
By: _________________________
Title: ________________________
A-1
<PAGE>
EXHIBIT B-1
INDENTURE TRUSTEE'S ACKNOWLEDGEMENT OF RECEIPT
The Chase Manhattan Bank, in its capacity as Indenture Trustee (the
"Indenture Trustee") under that certain Sale and Servicing Agreement dated as of
December 1, 1998 (the "Sale and Servicing Agreement") among IMC Securities,
Inc., as Depositor, IMC Mortgage Company, a Florida corporation, as seller
("IMC"), Ocwen Federal Bank FSB, as Servicer, IMC Home Equity Loan Owner Trust
1998-7, as Issuer and The Chase Manhattan Bank, as Indenture Trustee, hereby
acknowledges receipt of the Note Insurance Policy (Policy No. ________) from
Financial Security Assurance Inc. and all other assets of the Trust Estate
received by the Indenture Trustee as of the date hereof.
The Indenture Trustee hereby additionally acknowledges that it shall
cause the Custodian (as defined in the Sale and Servicing Agreement) to review
such items as required by Section 2.06(a) of the Sale and Servicing Agreement.
THE CHASE MANHATTAN BANK, as
Indenture Trustee
By: ________________________________
Name: ________________________________
Title:________________________________
Dated: December __, 1998
B-1-1
<PAGE>
EXHIBIT B-2
CUSTODIAN'S ACKNOWLEDGMENT OF RECEIPT
Bank One Trust Company, N.A., in its capacity as custodian (the
"Custodian") under the Custodial Agreement dated as of December 1, 1998 among
the Custodian, IMC Mortgage Company, as seller, Ocwen Federal Bank FSB, as
servicer, IMC Securities, Inc., as Depositor, IMC Home Equity Loan Owner Trust
1998-7, as Issuer and The Chase Manhattan Bank, in its capacity as Indenture
Trustee (the "Indenture Trustee") under that certain Sale and Servicing
Agreement dated as of December 1, 1998 ( the "Sale and Servicing Agreement")
among IMC Securities, Inc., as Depositor, IMC Mortgage Company, a Florida
corporation, as seller and servicer ("IMC"), the Issuer, and the Indenture
Trustee hereby acknowledges receipt (subject to review as required by Section
2.06(a) of the Sale and Servicing Agreement) of the items delivered to it by IMC
with respect to the Home Equity Loans pursuant to Section 2.05(b)(i) of the Sale
and Servicing Agreement, except such items as are listed on Exhibit D to the
Sale and Servicing Agreement.
The Schedules of Home Equity Loans is attached to this Receipt.
The Custodian hereby additionally acknowledges that it shall review
such items as required by Section 2.06(a) of the Sale and Servicing Agreement
and shall otherwise comply with Section 2.06(b) and 2.06(c) of the Sale and
Servicing Agreement as required thereby.
BANK ONE TRUST COMPANY, N.A., as custodian
By: ________________________________
Name: ________________________________
Title: ________________________________
Dated: December __, 1998
B-2-1
<PAGE>
EXHIBIT C
FORM OF POOL CERTIFICATION
POOL CERTIFICATION
WHEREAS, the undersigned is an Authorized Officer of Bank One Trust
Company, N.A., in its capacity as Custodian (the "Custodian") under the
Custodial Agreement dated December 1, 1998 between the Custodian, IMC Mortgage
Company, as seller, Ocwen Federal Bank FSB, as servicer, IMC Securities, Inc.,
as Depositor, IMC Home Equity Loan Owner Trust 1998-7, as Issuer and The Chase
Manhattan Bank, a New York banking corporation, acting in its capacity as
indenture trustee (the "Indenture Trustee") of a certain pool of mortgage loans
(the "Pool") heretofore conveyed in trust to the Indenture Trustee, pursuant to
that certain Sale and Servicing Agreement dated as of December 1, 1998 (the
"Sale and Servicing Agreement") among IMC Securities, Inc., as Depositor, IMC
Mortgage Company, as Seller (the "Seller"), Ocwen Federal Bank FSB, as Servicer,
IMC Home Equity Loan Owner Trust 1998-7, as Issuer and the Indenture Trustee;
and
WHEREAS, the Custodian is required, pursuant to Section 2.06(a) of the
Sale and Servicing Agreement, to review the Mortgage Files relating to the Pool
within a specified period following the Closing Date and to notify the Seller
promptly of any defects with respect to the Pool, and the Seller is required to
remedy such defects or take certain other action, all as set forth in Section
2.06(b) of the Sale and Servicing Agreement; and
WHEREAS, Section 2.06(a) of the Sale and Servicing Agreement requires
the Custodian to deliver this Pool Certification upon the satisfaction of
certain conditions set forth therein.
NOW, THEREFORE, the Custodian hereby certifies that it has determined
that all required documents (or certified copies of documents listed in Section
2.05 of the Sale and Servicing Agreement) have been executed or received, and
that such documents relate to the Home Equity Loans identified in the Schedule
of Home Equity Loans pursuant to Section 2.06(a) of the Sale and Servicing
Agreement or, in the event that such documents have not been executed and
received or do not so relate to such Home Equity Loans, any remedial action by
the Seller pursuant to Section 2.06(b) of the Sale and Servicing Agreement has
been completed. The Custodian makes no certification hereby, however, with
respect to any intervening assignments or assumption and modification
agreements.
BANK ONE TRUST COMPANY, N.A., as Custodian
By: __________________________________
Title: ________________________________
Dated: December __, 1998
C-1
<PAGE>
EXHIBIT D TO THE SALE AND SERVICING AGREEMENT
HOME EQUITY LOANS WITH DOCUMENT EXCEPTIONS
Loan Number Borrower Name Original Loan Amount Exception
- - ----------- ------------- -------------------- ---------
D-1
<PAGE>
EXHIBIT E
AUCTION SALE BID PROCEDURES
I. Auction Process
a. On the Bid Solicitation Commencement Date, the Indenture
Trustee shall have the right, but not the obligation to engage
an investment bank or other agent (the "Advisor") to assist
the Indenture Trustee in the Auction Sale bid solicitation of
the assets of the proposed auction. In the event that such
Advisor advises the Indenture Trustee that it believes that
the then current market for home equity loans similar to the
Home Equity Loans being offered for auction will not lead to a
bid with a minimum price that exceeds the Redemption Price,
the Indenture Trustee shall cancel the auction process until
the next Bid Solicitation Date.
b. On the Bid Solicitation Commencement Date, the Indenture
Trustee or the Advisor will initiate its general auction
procedures consisting of the following: (i) with the
assistance of the Seller and the Servicer, prepare a general
solicitation package along with a confidentiality agreement;
(ii) prepare a list of qualified bidders, in a commercially
reasonable manner; (iii) initiate contact with all qualified
bidders (which may include the Seller, the Servicer, the Note
Insurer and the Owners of the Certificates); (iv) send a
confidentiality agreement to all qualified bidders; (v) upon
receipt of a signed confidentiality agreement, send
solicitation packages to all interested bidders; and (vi)
notify all potential bidders of the anticipated timetable.
c. The general solicitation package will include: (i) the
prospectus from the public offering of the related Series of
Notes ("Prospectus"); (ii) a copy of all monthly servicing
reports or a copy of all annual servicing reports and, upon a
written request, the prior years' monthly servicing reports;
(iii) a form of a purchase and sale agreement and servicing
agreement for such sale; (iv) a description of the minimum
Redemption Price required to cause the Indenture Trustee to
sell the Home Equity Loans; (v) a formal bidsheet; (vi) a
detailed timetable; and (vii) a preliminary data tape of the
Home Equity Loans as of the most recent Payment Date
reflecting the same data attributes used to create the
original Cut-Off Date tables for the Prospectus.
II. Auction Process
a. The Advisor, the Seller, the Servicer and the Note Insurer
will be allowed to bid in the auction, but will not be
required to do so.
b. The bid solicitation package will indicate the date on or
before the bids must be submitted to the Indenture Trustee
(the "Auction Date").
c. On the Auction Date, all bids will be due by facsimile to such
office as shall be designated by the Indenture Trustee by 1:00
p.m. ET; with the winning bidder to be notified by 2:00 p.m.
ET the next Business Day. All acceptable bids will be due on a
conforming basis on the bid sheet contained in the
solicitation package.
E-1
<PAGE>
d. The Issuer and the Servicer will cooperate with the Indenture
Trustee and the Advisor by (a) making their offices available
during normal business hours upon reasonable notice for the
prospective bidders to conduct due diligence, (b) providing
the Indenture Trustee with adequate copies of the data tape
regarding the Home Equity Loans, (c) preparing all
assignments, endorsements and all other documentation
necessary to evidence the transfer of the Home Equity Loans
and (d) making all necessary representations and warranties in
connection with the servicing of the Home Equity Loans.
e. If the Indenture Trustee receives no qualified bids, the
Indenture Trustee shall cancel the Auction.
f. Upon notification to the winning bidder, a one percent (1%)
good faith deposit of the aggregate balance of the unpaid
principal balances of the Home Equity Loans as of the last day
of the preceding Remittance Period will be required to be
wired to the Indenture Trustee upon acceptance of the bid.
This deposit, along with any interest income attributable to
it, will be credited to the purchase price, but will not be
refundable. The Indenture Trustee will establish a separate
account for the acceptance of the good faith deposit, until
such time as the account is fully funded and all monies are
transferred into an account established by the Indenture
Trustee for deposit of such amounts, such time not to exceed
one (1) Business Day before the final Payment Date.
g. The winning bidder will receive on the Auction Date a copy of
the draft purchase and sale agreement and servicing agreement.
E-1
Exhibit 99.1
Geographic Distribution of Properties--Loan Pool I
Number of % of
Home Aggregate Aggregate
Equity Loan Loan
State Loans Balance Balance
----- --------- --------- ---------
Florida 853 52,910,053 10.00
Illinois 517 39,735,755 7.51
New York 529 36,998,274 6.99
Michigan 611 36,871,326 6.97
Ohio 577 33,873,306 6.40
North Carolina 505 30,487,706 5.76
Pennsylvania 423 24,875,704 4.70
New Jersey 258 23,614,830 4.46
Tennessee 370 21,669,104 4.10
Indiana 427 21,323,965 4.03
Georgia 334 19,801,828 3.74
California 164 16,447,772 3.11
South Carolina 231 12,709,888 2.40
Maryland 190 12,631,968 2.39
Virginia 196 12,234,282 2.31
Massachusetts 137 10,920,833 2.06
Colorado 117 10,033,993 1.90
Connecticut 108 9,652,998 1.82
Arizona 122 9,603,145 1.82
New Mexico 102 7,273,907 1.38
Wisconsin 113 6,851,585 1.30
Texas 97 6,527,870 1.23
Utah 73 6,440,433 1.22
Minnesota 82 6,225,736 1.18
Missouri 109 5,620,642 1.06
Kentucky 109 5,506,493 1.04
Nevada 59 5,089,050 0.96
Rhode Island 63 4,907,449 0.93
Oregon 54 4,549,977 0.86
Washington 50 4,524,483 0.86
Mississippi 96 4,460,750 0.84
Louisiana 73 3,560,760 0.67
Arkansas 54 3,151,877 0.60
Hawaii 17 2,985,995 0.56
Idaho 36 2,383,351 0.45
West Virginia 38 1,827,060 0.35
Nebraska 32 1,669,856 0.32
Kansas 32 1,662,386 0.31
Delaware 25 1,458,778 0.28
Iowa 27 1,211,669 0.23
Oklahoma 25 1,133,103 0.21
New Hampshire 13 1,021,973 0.19
Maine 15 868,322 0.16
South Dakota 12 570,134 0.11
Wyoming 6 354,268 0.07
Vermont 5 211,368 0.04
Montana 3 192,224 0.04
North Dakota 3 126,939 0.02
Alabama 2 125,621 0.02
District of Columbia 3 110,365 0.02
----- ------------ ------
8,097 $529,001,155 100.00%
<PAGE>
Original Combined Loan-to-Value Ratios--Loan Pool I
% of
Number Aggregate Aggregate
Range of of Home Loan Loan
Original CLTV's Equity Loans Balance Balance
--------------- ------------ --------- ---------
5.01 to 10.00 1 9,930 0.00
10.01 to 15.00 5 96,625 0.02
15.01 to 20.00 18 380,597 0.07
20.01 to 25.00 33 984,784 0.19
25.01 to 30.00 44 1,645,017 0.31
30.01 to 35.00 69 2,436,705 0.46
35.01 to 40.00 101 3,760,052 0.71
40.01 to 45.00 101 4,447,886 0.84
45.01 to 50.00 152 6,672,407 1.26
50.01 to 55.00 166 7,659,708 1.45
55.01 to 60.00 267 13,756,833 2.60
60.01 to 65.00 513 29,074,690 5.50
65.01 to 70.00 787 45,650,863 8.63
70.01 to 75.00 1,159 74,183,683 14.02
75.01 to 80.00 2,441 178,548,010 33.75
80.01 to 85.00 1,154 87,121,719 16.47
85.01 to 90.00 739 61,737,206 11.67
90.01 to 95.00 69 3,361,551 0.64
95.01 to 100.00 278 7,472,889 1.41
----- ------------ ------
8,097 $529,001,155 100.00%
Coupon Rates--Loan Pool I
% of
Number Aggregate Aggregate
Range of of Home Loan Loan
Coupon Rates Equity Loans Balance Balance
------------ ------------ ---------- ---------
5.001 - 6.000 1 156,958 0.03
6.001 - 7.000 10 1,422,561 0.27
7.001 - 8.000 119 11,026,715 2.08
8.001 - 9.000 616 54,486,577 10.30
9.001 - 10.000 1,746 135,628,774 25.64
10.001 - 11.000 2,546 167,883,277 31.74
11.001 - 12.000 1,575 93,536,607 17.68
12.001 - 13.000 928 42,674,565 8.07
13.001 - 14.000 408 16,750,747 3.17
14.001 - 15.000 104 3,999,309 0.76
15.001 - 16.000 30 1,036,081 0.20
16.001 - 17.000 8 191,382 0.04
17.001 - 18.000 4 124,628 0.02
18.001 - 19.000 2 82,974 0.02
----- ------------ ------
8,097 $529,001,155 100.00%
Loan Balances--Loan Pool I
% of
Number Aggregate Aggregate
of Home Loan Loan
Loan Balances Equity Loans Balance Balance
------------- ------------ --------- ---------
Up to 25,000.00 1,023 18,681,588 3.53
25,000.01 to 50,000.00 2,529 95,686,177 18.09
50,000.01 to 75,000.00 2,073 127,094,516 24.03
75,000.01 to 100,000.00 1,078 93,406,564 17.66
100,000.01 to 125,000.00 612 68,072,409 12.87
125,000.01 to 150,000.00 381 51,776,336 9.79
150,000.01 to 175,000.00 174 28,122,797 5.32
175,000.01 to 200,000.00 126 23,652,314 4.47
200,000.01 to 250,000.00 91 19,609,802 3.71
250,000.01 to 300,000.00 7 1,900,253 0.36
300,000.01 to 350,000.00 3 998,401 0.19
------ ------------ ------
8,097 $529,001,155 100.00%
<PAGE>
Types of Mortgaged Properties--Loan Pool I
% of
Number Aggregate Aggregate
of Home Loan Loan
Property Types Equity Loans Balance Balance
-------------- ------------ --------- ---------
Two- to Four-Family 541 42,383,843 8.01
Townhouse 58 4,235,415 0.80
Manufactured Housing 149 8,203,365 1.55
Condominium 168 10,158,269 1.92
Single Family Attached 136 6,634,883 1.25
Single Family Detached 7,043 457,245,979 86.44
Mixed Use 2 139,401 0.03
------ ------------ ------
8,097 $529,001,155 100.00%
Distribution of Months Since Origination--Loan Pool I
Number of % of
Months Number Aggregate Aggregate
Since of Home Loan Loan
Origination Equity Loans Balance Balance
----------- ------------ --------- ---------
0 to 1 85 5,826,902 1.10
2 to 12 7,888 512,947,636 96.97
13 to 24 120 9,843,294 1.86
25 or more 4 383,322 0.07
------ ------------ ------
8,097 $529,001,155 100.00%
Distribution of Remaining Term to Maturity--Loan Pool I
% of
Months Number Aggregate Aggregate
Remaining of Home Loan Loan
to Maturity Equity Loans Balance Balance
----------- ------------ --------- ---------
Up to 120 251 6,727,444 1.27
121 to 180 3,362 188,956,234 35.72
181 to 240 717 36,465,011 6.89
241 to 300 189 12,390,874 2.34
301 to 360 3,578 284,461,591 53.77
------ ------------ ------
8,097 $529,001,155 100.00%
Occupancy Status--Loan Pool I
% of
Number Aggregate Aggregate
Occupancy of Home Loan Loan
Status Equity Loans Balance Balance
--------- ------------ --------- ---------
Owner Occupied 7,526 499,073,476 94.34
Investor Owned 545 28,409,284 5.37
Vacation/Second Home 26 1,518,395 0.29
------ ------------ ------
8,097 $529,001,155 100.00%
Distribution by Lien Position--Loan Pool I
% of
Number Aggregate Aggregate
Lien of Home Loan Loan
Position Equity Loans Balance Balance
-------- ------------ --------- ---------
First Lien 7,000 497,980,966 94.14
Second Lien 1,097 31,020,189 5.86
------ ------------ ------
8,097 $529,001,155 100.00%
<PAGE>
Distribution of Maximum Coupon Rates for the
Adjustable Rate Home Equity Loans in Loan Pool I
% of
Range Number Aggregate Aggregate
of Maximum of Home Loan Loan
Coupon Rates Equity Loans Balance Balance
------------ ------------ --------- ---------
9.001 - 10.000 1 71,321 0.06
10.001 - 11.000 1 141,340 0.12
13.001 - 14.000 5 658,402 0.58
14.001 - 15.000 56 6,233,672 5.50
15.001 - 16.000 242 23,365,890 20.62
16.001 - 17.000 433 39,280,919 34.66
17.001 - 18.000 330 26,577,480 23.45
18.001 - 19.000 148 11,744,187 10.36
19.001 - 20.000 60 3,615,535 3.19
20.001 - 21.000 23 1,146,608 1.01
21.001 - 22.000 5 276,170 0.24
22.001 - 23.000 2 144,521 0.13
26.001 - 27.000 1 31,144 0.03
30.001 - 35.000 1 38,243 0.03
----- ------------ ------
1,308 $113,325,434 100.00%
Distribution of Minimum Coupon Rates for the
Adjustable Rate Home Equity Loans in Loan Pool I
% of
Range Number Aggregate Aggregate
of Minimum of Home Loan Loan
Coupon Rates Equity Loans Balance Balance
------------ ------------ --------- ---------
2.001 - 3.000 1 27,812 0.02
3.001 - 4.000 1 193,126 0.17
4.001 - 5.000 4 362,143 0.32
5.001 - 6.000 26 2,565,907 2.26
6.001 - 7.000 47 3,705,421 3.27
7.001 - 8.000 41 3,796,484 3.35
8.001 - 9.000 144 14,912,467 13.16
9.001 - 10.000 358 33,955,393 29.96
10.001 - 11.000 382 31,823,994 28.08
11.001 - 12.000 182 14,510,511 12.80
12.001 - 13.000 82 5,239,072 4.62
13.001 - 14.000 28 1,512,313 1.33
14.001 - 15.000 8 508,334 0.45
15.001 - 16.000 4 212,457 0.19
----- ------------ ------
1,308 $113,325,434 100.00%
Distribution of Margins for the LIBOR Loans in Loan Pool I
% of
Number Aggregate Aggregate
Range of Home Loan Loan
of Margins Equity Loans Balance Balance
---------- ------------ --------- ---------
2.001 - 3.000 1 112,571 0.10
3.001 - 4.000 3 419,222 0.37
4.001 - 5.000 58 5,900,718 5.23
5.001 - 6.000 324 29,093,949 25.80
6.001 - 7.000 450 40,829,631 36.20
7.001 - 8.000 294 23,241,647 20.61
8.001 - 9.000 99 7,431,971 6.59
9.001 - 10.000 47 3,648,267 3.23
10.001 - 11.000 18 1,608,608 1.43
11.001 - 12.000 7 478,965 0.42
12.001 - 13.000 1 23,377 0.02
----- ------------ ------
1,302 $112,788,926 100.00%
<PAGE>
Distribution of Margins for the CMT Loans in Loan Pool I
% of
Number Aggregate Aggregate
Range of Home Loan Loan
of Margins Equity Loans Balance Balance
------------ ------------ --------- ---------
2.001 - 3.000 1 27,812 5.18
5.001 - 6.000 1 146,495 27.31
6.001 - 7.000 1 107,635 20.06
8.001 - 9.000 3 254,567 47.45
--- -------- ------
6 $536,508 100.00%
Distribution of Next Coupon Rate Change for the LIBOR Loans in Loan Pool I
% of
Month Number Aggregate Aggregate
of Next of Home Loan Loan
Coupon Rate Change Equity Loans Balance Balance
------------------ ------------ ------- -------
January 1999 12 1,359,544 1.21
February 1999 46 4,601,751 4.08
March 1999 38 3,784,054 3.35
April 1999 12 1,421,366 1.26
May 1999 18 1,893,517 1.68
June 1999 11 1,266,025 1.12
July 1999 13 1,034,889 0.92
August 1999 12 934,241 0.83
September 1999 13 1,168,324 1.04
October 1999 9 926,028 0.82
November 1999 13 1,219,340 1.08
December 1999 21 1,291,141 1.14
January 2000 29 2,384,969 2.11
February 2000 16 1,073,374 0.95
March 2000 15 1,157,084 1.03
April 2000 30 2,516,409 2.23
May 2000 83 7,335,933 6.50
June 2000 89 7,283,145 6.46
July 2000 130 11,409,011 10.12
August 2000 267 22,552,327 20.00
September 2000 270 23,243,702 20.61
October 2000 55 5,267,937 4.67
November 2000 1 68,980 0.06
December 2000 1 50,824 0.05
March 2001 1 76,680 0.07
April 2001 1 106,660 0.09
May 2001 1 39,859 0.04
June 2001 4 284,380 0.25
July 2001 5 366,929 0.33
August 2001 37 2,645,009 2.35
September 2001 37 2,967,396 2.63
October 2001 6 482,159 0.43
January 2003 3 292,460 0.26
May 2003 2 253,405 0.22
August 2003 1 30,076 0.03
----- ------------ ------
1,302 $112,788,926 100.00%
<PAGE>
Distribution of Next Coupon Rate Change for the CMT Loans in Loan Pool I
% of
Month Number Aggregate Aggregate
of Next of Home Loan Loan
Coupon Rate Change Equity Loans Balance Balance
------------------- ------------ --------- ---------
May 1999 2 174,307 32.49
August 1999 1 107,635 20.06
August 2000 2 153,080 28.53
September 2000 1 101,487 18.92
-- -------- ------
6 $536,508 100.00%
Geographic Distribution of Properties--Loan Pool II
Number of % of
Home Aggregate Aggregate
Equity Loan Loan
State Loans Balance Balance
----- --------- --------- ---------
California 46 9,190,804 12.94
Florida 37 7,340,582 10.34
New Jersey 37 6,857,775 9.66
New York 49 5,496,978 7.74
Connecticut 20 4,246,557 5.98
Illinois 22 4,094,076 5.77
Georgia 17 3,437,462 4.84
Maryland 22 3,407,093 4.80
Michigan 12 2,991,650 4.21
Colorado 12 2,745,976 3.87
Massachusetts 18 2,403,035 3.38
Arizona 11 1,962,145 2.76
Tennessee 6 1,792,350 2.52
Ohio 7 1,755,385 2.47
North Carolina 5 1,405,962 1.98
Washington 6 1,297,610 1.83
New Mexico 4 1,240,840 1.75
Pennsylvania 9 997,784 1.41
South Carolina 5 921,454 1.30
Utah 5 911,193 1.28
Virginia 7 732,812 1.03
Oregon 3 719,765 1.01
Nevada 5 653,264 0.92
Louisiana 3 579,593 0.82
Wisconsin 3 507,832 0.72
Minnesota 2 429,076 0.60
Hawaii 1 423,083 0.60
Maine 1 410,404 0.58
Missouri 3 374,036 0.53
Texas 1 299,455 0.42
Oklahoma 1 254,279 0.36
Arkansas 1 244,039 0.34
Nebraska 1 239,556 0.34
Kentucky 1 237,673 0.33
Idaho 1 230,665 0.32
Rhode Island 2 88,406 0.12
Indiana 1 50,582 0.07
Mississippi 1 36,540 0.05
--- ----------- ------
388 $71,007,772 100.00%
<PAGE>
Original Combined Loan-to-Value Ratios--Loan Pool II
% of
Number Aggregate Aggregate
Range of of Home Loan Loan
Original CLTV's Equity Loans Balance Balance
--------------- ------------ --------- ---------
15.01 to 20.00 1 299,655 0.42
30.01 to 35.00 1 244,622 0.34
35.01 to 40.00 2 619,250 0.87
40.01 to 45.00 2 106,488 0.15
45.01 to 50.00 1 64,769 0.09
50.01 to 55.00 5 1,261,552 1.78
55.01 to 60.00 4 536,638 0.76
60.01 to 65.00 11 1,632,167 2.30
65.01 to 70.00 33 5,769,331 8.12
70.01 to 75.00 49 12,231,991 17.23
75.01 to 80.00 114 24,924,384 35.10
80.01 to 85.00 67 10,586,431 14.91
85.01 to 90.00 49 9,966,478 14.04
90.01 to 95.00 10 859,511 1.21
95.01 to 100.00 39 1,904,503 2.68
--- ----------- ------
388 $71,007,772 100.00%
Coupon Rates--Loan Pool II
% of
Number Aggregate Aggregate
Range of of Home Loan Loan
Coupon Rates Equity Loans Balance Balance
--------------- ------------ --------- ---------
6.001 - 7.000 7 2,122,055 2.99
7.001 - 8.000 7 1,974,468 2.78
8.001 - 9.000 39 10,969,702 15.45
9.001 - 10.000 73 17,577,720 24.75
10.001 - 11.000 117 21,653,328 30.49
11.001 - 12.000 66 8,873,576 12.50
12.001 - 13.000 54 5,489,148 7.73
13.001 - 14.000 21 2,179,274 3.07
14.001 - 15.000 3 135,892 0.19
15.001 - 16.000 1 32,609 0.05
--- ----------- ------
388 $71,007,772 100.00%
Loan Balances--Loan Pool II
% of
Number Aggregate Aggregate
of Home Loan Loan
Loan Balances Equity Loans Balance Balance
------------- ------------ ---------- ---------
Up to 25,000.00 7 130,969 0.18
25,000.01 to 50,000.00 80 3,218,078 4.53
50,000.01 to 75,000.00 54 3,272,663 4.61
75,000.01 to 100,000.00 20 1,750,591 2.47
100,000.01 to 125,000.00 7 739,393 1.04
125,000.01 to 150,000.00 6 802,480 1.13
150,000.01 to 175,000.00 6 968,186 1.36
200,000.01 to 250,000.00 68 16,302,935 22.96
250,000.01 to 300,000.00 76 20,739,046 29.21
300,000.01 to 350,000.00 34 10,925,581 15.39
350,000.01 to 400,000.00 21 8,117,175 11.43
400,000.01 to 450,000.00 5 2,113,653 2.98
450,000.01 to 500,000.00 3 1,425,161 2.01
500,000.01 to 550,000.00 1 501,861 0.71
--- ----------- ------
388 $71,007,772 100.00%
<PAGE>
Types of Mortgaged Properties--Loan Pool II
% of
Number Aggregate Aggregate
of Home Loan Loan
Property Types Equity Loans Balance Balance
--------------- ------------ --------- ---------
Two- to Four-Family 13 1,285,147 1.81
Townhouse 1 247,727 0.35
Multi-Family 15 1,361,735 1.92
Condominium 2 541,124 0.76
Single Family Attached 3 356,883 0.50
Single Family Detached 354 67,215,155 94.66
--- ----------- ------
388 $71,007,772 100.00%
Distribution of Months Since Origination--Loan Pool II
% of
Number Number Aggregate Aggregate
of Months of Home Loan Loan
Since Orignation Equity Loans Balance Balance
---------------- ------------ --------- ---------
0 to 1 4 855,586 1.20
2 to 12 369 67,180,234 94.61
13 to 24 15 2,971,951 4.19
--- ----------- ------
388 $71,007,772 100.00%
Distribution of Remaining Term to Maturity--Loan Pool II
% of
Months Number Aggregate Aggregate
Remaining of Home Loan Loan
to Maturity Equity Loans Balance Balance
----------- ------------ --------- ---------
Up to 120 6 307,990 0.43
121 to 180 202 28,619,132 40.30
181 to 240 39 3,488,516 4.91
241 to 300 5 960,762 1.35
301 to 360 136 37,631,373 53.00
--- ----------- ------
388 $71,007,772 100.00%
Occupancy Status--Loan Pool II
% of
Number Aggregate Aggregate
Occupancy of Home Loan Loan
Status Equity Loans Balance Balance
----------- ------------ --------- ---------
Owner Occupied 381 70,080,212 98.69
Investor Owned 6 577,819 0.81
Vacation/Second Home 1 349,740 0.49
--- ----------- ------
388 $71,007,772 100.00%
<PAGE>
Distribution by Lien Position--Loan Pool II
% of
Number Aggregate Aggregate
Lien of Home Loan Loan
Position Equity Loans Balance Balance
----------- ------------ --------- ---------
First Lien 223 61,331,065 86.37
Second Lien 165 9,676,707 13.63
--- ----------- ------
388 $71,007,772 100.00%
Distribution of Maximum Coupon Rates for the
Adjustable Rate Home Equity Loans--Loan Pool II
% of
Range Number Aggregate Aggregate
of Maximum of Home Loan Loan
Coupon Rates Equity Loans Balance Balance
--------------- ------------ --------- ---------
14.001 - 15.000 7 2,124,083 14.74
15.001 - 16.000 12 3,313,848 23.00
16.001 - 17.000 15 4,383,788 30.42
17.001 - 18.000 13 3,380,210 23.46
18.001 - 19.000 2 516,450 3.58
19.001 - 20.000 1 349,740 2.43
20.001 - 21.000 2 340,903 2.37
-- ----------- ------
52 $14,409,021 100.00%
Distribution of Minimum Coupon Rates for the
Adjustable Rate Home Equity Loans--Loan Pool II
% of
Range Number Aggregate Aggregate
of Minimum of Home Loan Loan
Coupon Rates Equity Loans Balance Balance
--------------- ------------ --------- ---------
5.001 - 6.000 2 737,829 5.12
6.001 - 7.000 3 919,685 6.38
7.001 - 8.000 3 941,783 6.54
8.001 - 9.000 13 3,556,464 24.68
9.001 - 10.000 10 2,819,137 19.57
10.001 - 11.000 12 3,130,619 21.73
11.001 - 12.000 5 1,320,880 9.17
12.001 - 13.000 1 349,740 2.43
13.001 - 14.000 3 632,883 4.39
-- ----------- ------
52 $14,409,021 100.00%
<PAGE>
Distribution of Margins for the
Adjustable Rate Home Equity Loans--Loan Pool II
% of
Number Aggregate Aggregate
Range of Home Loan Loan
of Margins Equity Loans Balance Balance
--------------- ------------ --------- ---------
4.001 - 5.000 1 228,932 1.59
5.001 - 6.000 14 4,414,484 30.64
6.001 - 7.000 16 4,512,178 31.31
7.001 - 8.000 13 3,184,147 22.10
8.001 - 9.000 5 1,320,165 9.16
9.001 - 10.000 2 469,490 3.26
11.001 - 12.000 1 279,625 1.94
-- ----------- ------
52 $14,409,021 100.00%
Distribution of Next Coupon Rate Change for the
Adjustable Rate Home Equity Loans--Loan Pool II
% of
Month Number Aggregate Aggregate
of Next of Home Loan Loan
Coupon Rate Change Equity Loans Balance Balance
------------------ ------------ --------- ---------
January 1999 1 243,599 1.69
February 1999 2 540,048 3.75
March 1999 1 367,903 2.55
April 1999 1 246,350 1.71
May 1999 4 1,319,251 9.16
September 1999 1 301,489 2.09
December 1999 1 254,056 1.76
January 2000 3 351,155 2.44
February 2000 2 599,945 4.16
April 2000 1 291,980 2.03
May 2000 4 810,891 5.63
June 2000 1 314,011 2.18
July 2000 4 988,898 6.86
August 2000 11 3,644,761 25.29
September 2000 8 2,183,347 15.15
October 2000 3 813,055 5.64
April 2001 1 358,756 2.49
July 2001 1 266,437 1.85
August 2001 1 279,625 1.94
September 2001 1 233,466 1.62
-- ----------- ------
52 $14,409,021 100.00%
