Exhibit 99.1
FINANCIAL ASSET SECURITIES CORP.,
Depositor,
GREENPOINT MORTGAGE FUNDING, INC.,
Originator and Servicer,
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
Seller,
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1,
Issuer,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Indenture Trustee,
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SALE AND SERVICING AGREEMENT
Dated as of March 30, 2005
----------------------
Asset-Backed Notes, Series 2005-HE1
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................................................3
Section 1.02. Rules of Construction.......................................................................3
Section 1.03. Calculations Respecting Mortgage Loans......................................................3
Section 1.04. Calculations Respecting Accrued Interest....................................................4
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
Section 2.01. Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under
Credit Line Agreements......................................................................5
Section 2.02. Acceptance of Trust Estate; Review of Documentation.........................................8
Section 2.03. Grant Clause................................................................................9
Section 2.04. Further Encumbrance of Trust Estate........................................................11
Section 2.05. Conveyance of the Subsequent Mortgage Loans................................................11
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Depositor............................................15
Section 3.02. Representations and Warranties of GreenPoint...............................................16
Section 3.03. Representations and Warranties Regarding the Mortgage Loans; Discovery of Breach...........19
Section 3.04. Repurchase, Purchase or Substitution of Mortgage Loans.....................................19
Section 3.05. Representations and Warranties of the Seller...............................................20
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE SERVICER
Section 4.01. The Servicer...............................................................................23
Section 4.02. Collection of Certain Mortgage Loan Payments; Remittances..................................24
Section 4.03. Withdrawals from the Collection Account....................................................26
Section 4.04. Maintenance of Hazard Insurance; Property Protection Expenses..............................27
Section 4.05. Assumption and Modification Agreements.....................................................28
Section 4.06. Realization Upon Defaulted Mortgage Loans; Transfer or Repurchase of Certain
Mortgage Loans.............................................................................29
Section 4.07. Indenture Trustee to Cooperate.............................................................31
Section 4.08. Servicing Compensation; Payment of Certain Expenses by Servicer............................32
Section 4.09. Annual Statement as to Compliance..........................................................32
Section 4.10. Annual Servicing Report....................................................................33
Section 4.11. Reserved...................................................................................33
Section 4.12. Access to Certain Documentation and Information Regarding the Mortgage Loans...............33
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Section 4.13. Maintenance of Certain Servicing Insurance Policies........................................34
Section 4.14. Information Required by the Internal Revenue Service Generally and Reports of
Foreclosures and Abandonments of Mortgaged Property........................................34
Section 4.15. Reporting Requirements.....................................................................34
Section 4.16. Matters Relating to MERS Loans.............................................................35
Section 4.17. Servicing Certificate......................................................................35
Section 4.18. Loan Data Remittance Report................................................................37
ARTICLE V
DEPOSITS AND DISTRIBUTIONS TO HOLDERS
Section 5.01. The Pre-Funding Account....................................................................38
Section 5.02. The Payment Account........................................................................39
Section 5.03. Payments from the Payment Account..........................................................40
Section 5.04. Net WAC Rate Carryover Reserve Account.....................................................43
Section 5.05. The Reserve Account........................................................................44
Section 5.06. Allocation of Realized Losses..............................................................45
Section 5.07. The Certificate Account....................................................................46
Section 5.08. Control of the Trust Accounts..............................................................47
Section 5.09. Reports of Indenture Trustee to Securityholders............................................50
ARTICLE VI
THE SERVICER AND THE DEPOSITOR
Section 6.01. Liability of the Servicer and the Depositor................................................54
Section 6.02. Merger or Consolidation of, or Assumption of the Obligations of, the Servicer..............54
Section 6.03. Limitation on Liability of the Servicer and Others.........................................54
Section 6.04. Servicer Not to Resign.....................................................................55
Section 6.05. Delegation of Duties.......................................................................55
Section 6.06. Indemnification of the Trust by the Servicer...............................................55
Section 6.07. Limitation on Liability of the Depositor...................................................56
ARTICLE VII
EVENTS OF SERVICER TERMINATION
Section 7.01. Events of Servicing Termination............................................................57
Section 7.02. Indenture Trustee to Act; Appointment of Successor.........................................58
Section 7.03. Notification to Noteholders and Residual Certificateholders................................59
Section 7.04. Additional Remedies of Indenture Trustee Upon Event of Servicer Termination................59
Section 7.05. Waiver of Defaults.........................................................................60
Section 7.06. Directions by Securityholders and Duties of Indenture Trustee During Event of
Servicer Termination.......................................................................60
Section 7.07. Action Upon Certain Failures of the Servicer and Upon Event of Servicer Termination........60
Section 7.08. Preparation of Reports.....................................................................60
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ARTICLE VIII
TERMINATION
Section 8.01. Termination................................................................................63
Section 8.02. Termination Prior to Final Scheduled Payment Date; and Optional Redemption.................63
Section 8.03. Additional Requirements....................................................................63
Section 8.04. Certain Notices upon Final Payment.........................................................64
Section 8.05. Beneficiaries..............................................................................64
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Binding Nature of Agreement; Assignment....................................................65
Section 9.02. Entire Agreement...........................................................................65
Section 9.03. Amendment..................................................................................65
Section 9.04. Acts of Securityholders....................................................................66
Section 9.05. Recordation of Agreement...................................................................66
Section 9.06. Governing Law..............................................................................66
Section 9.07. Notices....................................................................................66
Section 9.08. Severability of Provisions.................................................................67
Section 9.09. Indulgences; No Waivers....................................................................67
Section 9.10. Headings Not To Affect Interpretation......................................................67
Section 9.11. Benefits of Agreement......................................................................67
Section 9.12. Special Notices to the Rating Agencies.....................................................67
Section 9.13. Counterparts...............................................................................68
Section 9.14. Execution by the Issuer....................................................................68
ATTACHMENTS
Exhibit A-1 Form of Initial Certification
Exhibit A-2 Form of Interim Certification
Exhibit A-3 Form of Final Certification
Exhibit B Mortgage Loan Representations and Warranties
Exhibit C-1 Request for Release of Documents and Receipt
Exhibit C-2 Request for Temporary Release
Exhibit D Form of Advance Notice to be provided by the Servicer to the
Holder of the Class G Certificates
Exhibit E Loan Data Remittance Report
Exhibit F Subsequent Transfer Agreement
Exhibit G Form of 10-K Certification
Exhibit H Form of Certification to be provided by the Servicer to the
Depositor
Exhibit I Form of Certification to be provided by Indenture Trustee to
the Depositor/Servicer
Exhibit J Form of Mortgage Note and Mortgage
Schedule A Mortgage Loan Schedule
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This SALE AND SERVICING AGREEMENT, dated as of March 30, 2005 (the
"Agreement" or the "Sale and Servicing Agreement"), is by and among GREENPOINT
MORTGAGE FUNDING TRUST 2005-HE1, a Delaware statutory trust (the "ISSUER" or
"TRUST"), FINANCIAL ASSET SECURITIES CORP, a Delaware corporation (the
"DEPOSITOR"), GREENPOINT MORTGAGE FUNDING, INC., a New York corporation (in its
capacity as servicer, the "SERVICER" or in its capacity as originator, the
"ORIGINATOR" or "GREENPOINT"), GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a
Delaware corporation ( the "SELLER") and DEUTSCHE BANK NATIONAL TRUST COMPANY, a
national banking association, as Indenture Trustee (the "INDENTURE TRUSTEE").
PRELIMINARY STATEMENT
WHEREAS, the Seller has acquired the Mortgage Loans from the Originator
and at the Closing Date is the owner of the Mortgage Loans and the other
property being conveyed by it to the Issuer hereunder for inclusion in the Trust
Estate
WHEREAS, such Mortgage Loans consist of certain home equity lines of
credit;
WHEREAS, on the Closing Date, the Depositor will acquire the Mortgage
Loans from the Seller in consideration for its transfer to the Seller of the
Residual Certificates and the proceeds from the sale of the Notes;
WHEREAS, on the Closing Date, the Depositor will acquire the Notes and
the Residual Certificates from the Issuer, as consideration for its transfer to
the Issuer of the Mortgage Loans and the other property constituting the Trust
Estate;
WHEREAS, the Depositor has duly authorized the execution and delivery
of this Agreement to provide for the conveyance to the Issuer of the Mortgage
Loans and the other property constituting the Trust Estate;
WHEREAS, pursuant to the Indenture, the Issuer will pledge the Mortgage
Loans and the other property constituting the Trust Estate to the Indenture
Trustee as security for the Notes;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
The following table sets forth the Class Designation, Note Rate,
Original Note Balance and minimum denomination for the Notes of each Class
issued pursuant to the Indenture.
CLASS ORIGINAL NOTE MINIMUM
DESIGNATION NOTE RATE(1) BALANCE DENOMINATIONS
----------------------------- ------------------- -------------------------- -------------------------
Class A-1A Variable $ 387,000,000 $25,000
Class A-1B Variable $ 75,000,000 $25,000
Class A-2 Variable $ 112,000,000 $25,000
Class A-3 Variable $ 195,000,000 $25,000
Class A-4 Variable $ 73,664,000 $25,000
Class A-5 Variable $ 23,940,000 $25,000
Class M-1 Variable $ 73,414,000 $25,000
Class M-2 Variable $ 13,832,000 $25,000
Class M-3 Variable $ 21,811,000 $25,000
Class M-4 Variable $ 19,683,000 $25,000
Class M-5 Variable $ 10,640,000 $25,000
Class M-6 Variable $ 10,640,000 $25,000
Class M-7 Variable $ 12,236,000 $25,000
Class M-8 Variable $ 9,044,000 $25,000
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(1) Calculated as set forth in Annex A hereto.
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ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. The following words and phrases, unless the
context otherwise requires, shall have the meanings set forth in Annex A.
Section 1.02. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in
the plural include the singular;
(vi) any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in
connection herewith means such agreement, instrument or statute as from
time to time amended, modified or supplemented and includes (in the
case of agreements or instruments) references to all attachments
thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns;
(vii) terms defined in the UCC and not otherwise defined
herein shall have the meaning assigned to them in the UCC; and
(viii) "U.S. dollars", "dollars", or the sign "$" shall be
construed as references to United States dollars which are freely
transferable by residents and non-residents of the United States of
America and convertible by such persons into any other freely
convertible currency unless such transferability or convertibility is
restricted by any law or regulation of general application in which
event references to "U.S. dollars", "dollars", or the sign "$" shall be
construed as references to such coin or currency of the United States
of America as at the time of payment shall be legal tender for the
payment of public and private debts in the United States of America,
and "cents" shall be construed accordingly.
Section 1.03. CALCULATIONS RESPECTING MORTGAGE LOANS. Calculations
required to be made pursuant to this Agreement with respect to any Mortgage Loan
in the Trust Estate shall be made based upon current information as to the terms
of the Mortgage Loans and reports of payments received from the Mortgagor on
such Mortgage Loans and payments to be made to the Indenture Trustee as supplied
to the Indenture Trustee by the Servicer. The Indenture Trustee
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shall not be required to recompute, verify or recalculate the information
supplied to it by the Servicer.
Section 1.04. CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued
interest, if any, on the Notes shall be calculated based upon a 360-day year and
the actual number of days in each Interest Accrual Period.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
Section 2.01. Conveyance of Mortgage Loans; Retention of Obligation to
Fund Advances Under Credit Line Agreements.
(a) As of the Closing Date, in consideration of the Issuer's
delivery of the Notes and the Residual Certificates to the Seller, and
concurrently with the execution and delivery of this Agreement, the Seller does
hereby sell, transfer, assign, set over, deposit with and otherwise convey to
the Depositor, without recourse, and the Depositor does hereby sell, transfer,
assign, set over, deposit with and otherwise convey to the Issuer, without
recourse, in trust, all of its right, title and interest in and to the Mortgage
Loans. Such conveyance includes, without limitation, (i) each Initial Mortgage
Loan, including its Principal Balance (including the right to purchase any
Additional Balances related thereto) and all collections in respect thereof
received after the Initial Cut-Off Date (excluding interest collections due on
or prior to the Initial Cut-Off Date); (ii) each Subsequent Mortgage Loan
(including any Additional Balances related thereto) and all collections in
respect thereof received after the related Subsequent Cut-Off Date (excluding
interest collections due on or prior to such related Subsequent Cut-Off Date);
(iii) property that secured a Mortgage Loan that is acquired by foreclosure or
deed in lieu of foreclosure; (iv) the Originator's rights under the Insurance
Policies; (v) the Collection Account, the Reserve Account, the Pre-Funding
Account and the Payment Account; and (vii) any proceeds of the foregoing and any
other property owned by the Trust and all other assets included or to be
included in the Issuer for the benefit of Noteholders and the Residual
Certificateholders; PROVIDED, HOWEVER, neither of the Indenture Trustee nor the
Issuer assumes or shall assume the obligation under any Credit Line Agreement
that provides for the funding of Draws to the Mortgagor thereunder, and neither
of the Issuer nor the Indenture Trustee shall be obligated or permitted to fund
any such Draws. With respect to the Mortgage Loans, Additional Balances shall be
part of the related Principal Balance and are hereby transferred to the Issuer
on the Closing Date pursuant to this Section 2.01(a), and are therefore part of
the Trust Estate. The Indenture Trustee declares that, subject to the review
provided for in Section 2.02, it has received and shall hold the Trust Estate,
as Indenture Trustee, in trust, for the benefit and use of the Securityholders
and for the purposes and subject to the terms and conditions set forth in this
Agreement, and, concurrently with such receipt, the Issuer has issued and
delivered the Securities to or upon the order of the Depositor, in exchange for
the Trust Estate.
(b) The Seller and Depositor hereby agree that as consideration
for each Additional Balance, the Issuer shall direct and hereby directs the
Servicer to fund such Additional Balances in an amount equal to the Purchase
Price therefore. Each Additional Balance shall first be funded from the
Principal Remittance Amount on deposit on any day in the Collection Account. To
the extent that the Purchase Price for any Additional Balance exceeds the
Principal Remittance Amount on deposit in the Collection Account on such day,
the Servicer shall fund the difference of such Additional Balance from its own
funds by depositing such amount into the Reserve Account and deliver to the
Holder of the Class G Certificates an Advance Notice including the aggregate
amount of such Additional Balance Advance Amount. The Holder of the Class G
Certificate, by accepting such Certificate, hereby agrees to reimburse the
Servicer for such Additional Balance Advance Amount. In the event that the
Holder of the Class G
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Certificate is not an affiliate of the Servicer, the Holder of the Class G
Certificate shall make an advance to the Trust in the amount specified in such
Advance Notice by depositing such amount into the Reserve Account. The Indenture
Trustee shall cause such amount to be remitted from the Reserve Account to the
Servicer on the following Payment Date. The Class Principal Balance of the Class
G Certificates will be increased by the amount of any such Additional Balance
Advance Amounts.
(c) It is agreed and understood by the Seller, the Depositor and
the Issuer (and the Depositor so represents and recognizes) that it is not
intended that any Mortgage Loan to be included in the Trust Estate be (i) a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a "High-Cost Home
Mortgage Loan" as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a "High Cost Home Loan" as defined in the
Indiana Home Loan Practices Act effective January 1, 2005.
(d) In connection with such transfers and assignments of the
Mortgage Loans, the Seller shall deliver to, and deposit with, or cause to be
delivered to and deposited with, the Indenture Trustee, and/or the Custodian
acting on the Indenture Trustee's behalf, the following documents or instruments
with respect to each Mortgage Loan so transferred and assigned on or before the
Closing Date with respect to each Initial Mortgage Loans and on or before the
related Subsequent Transfer Date with respect to each Subsequent Mortgage Loan:
(i) the original Credit Line Agreement;
(ii) if such Mortgage Loan is not a MERS Mortgage Loan, an
original Assignment of Mortgage in blank;
(iii) (A) if such Mortgage Loan is not a MERS Mortgage
Loan, the original recorded Mortgage or, if in connection with such
Mortgage Loan, the original recorded Mortgage with evidence of
recording thereon cannot be delivered on or prior to the Closing Date
because of a delay caused by the public recording office where such
original Mortgage has been delivered for recordation or because such
original Mortgage has been lost, the Originator shall deliver or cause
to be delivered to the Custodian, a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, a certification of the Originator, title company,
escrow agent or closing attorney stating that such original Mortgage
has been dispatched to the appropriate public recording official or
(ii) in the case of an original Mortgage that has been lost, a
certificate by the appropriate county recording office where such
Mortgage is recorded, and (B) if such Mortgage Loan is a MERS Mortgage
Loan, the original Mortgage, noting the presence of the "Mortgage
Identification Number" of such MERS Mortgage Loan;
(iv) if such Mortgage Loan is not a MERS Mortgage Loan, if
applicable, the original Intervening Assignments, if any, with evidence
of recording thereon, showing a complete chain of title to the related
Mortgage from the Mortgagor to the related Originator (and endorsed in
blank in accordance with clause (ii) above) or, if any such
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original Intervening Assignment has not been returned from the
applicable recording office or has been lost, a true and correct copy
thereof, together with (i) in the case of a delay caused by the public
recording office, a certification of the Originator, title company,
escrow agent or closing attorney stating that such original Intervening
Assignment has been dispatched to the appropriate public recording
official for recordation or (ii) in the case of an original Intervening
Assignment that has been lost, a certificate by the appropriate county
recording office where such Mortgage is recorded;
(v) either a Title Insurance Policy or guaranty title
with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection
with such Mortgage Loan;
(vii) the original of each assumption, modification,
consolidation or substitution agreement, if any, relating to such
Mortgage Loan; and
(viii) any security agreement, chattel mortgage or
equivalent instrument executed in connection with the related Mortgage.
(e) (i) Upon the occurrence of a Recordation Event, the Originator
shall submit to the appropriate recording offices Assignments of Mortgage to the
Indenture Trustee on behalf of the Trust, which may be blanket assignments if
permitted by applicable law, for the Mortgage Loans. In lieu of recording any
such Assignments of Mortgage, the Originator may provide to the Indenture
Trustee an Opinion of Counsel in a form reasonably acceptable to the Indenture
Trustee, to the effect that recordation of an Assignment of Mortgage in the
state where the related Mortgaged Property is located is not necessary to
protect the interests of the Owner Trustee, the Indenture Trustee or the
Securityholders in the related Mortgage. In the event that any such Assignment
of Mortgage is lost or returned unrecorded because of a defect therein, the
Originator shall promptly prepare a substitute Assignment of Mortgage or cure
such defect, as the case may be, and thereafter the Originator shall submit each
such Assignment of Mortgage for recording.
(ii) With respect to each MERS Mortgage Loan, the Servicer
shall, at the expense of the Seller, take such actions as are necessary
to cause the Indenture Trustee to be clearly identified as the owner of
each such Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS.
(iii) In instances where a Title Insurance Policy is
required to be delivered to the Indenture Trustee or the Custodian on
behalf of the Indenture Trustee under clause (d)(v) above and is not so
delivered, the Seller shall provide a copy of such Title Insurance
Policy to the Indenture Trustee, or to the Custodian on behalf of the
Indenture Trustee, as promptly as practicable after the execution and
delivery hereof, but in any case within 180 days of the Closing Date.
(f) For Mortgage Loans (if any) that have been prepaid in full
after the Initial Cut-off Date and prior to the Closing Date, the Depositor, in
lieu of delivering the above documents,
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herewith shall deliver to the Indenture Trustee, or to the Custodian on behalf
of the Indenture Trustee, an Officer's Certificate which shall include a
statement to the effect that all amounts received in connection with such
prepayment that are required to be deposited in the Collection Account pursuant
to Section 4.02(e) have been so deposited. All original documents that are not
delivered to the Indenture Trustee or the Custodian on behalf of the Indenture
Trustee shall be held by the Servicer in trust for the benefit of the Indenture
Trustee and the Securityholders.
Section 2.02. ACCEPTANCE OF TRUST ESTATE; REVIEW OF DOCUMENTATION.
(a) Subject to the provisions of Section 2.01, the Issuer
acknowledges receipt of the assets transferred by the Depositor of the assets
included in the Trust Estate and has directed that the documents referred to in
Section 2.01 and all other assets included in the definition of "Trust Estate"
be delivered to the Indenture Trustee (or the Custodian) on its behalf.
The Indenture Trustee, by execution and delivery hereof, acknowledges
receipt by it of or the Custodian on its behalf of the Mortgage Files pertaining
to the Mortgage Loans listed on the Mortgage Loan Schedule and each Subsequent
Mortgage Loan Schedule, subject to review thereof by the Indenture Trustee, or
by the Custodian on behalf of the Indenture Trustee, under this Section 2.02.
The Indenture Trustee, or the Custodian on behalf of the Indenture Trustee,
shall execute and deliver to the Depositor, the Servicer and the Indenture
Trustee on the Closing Date an Initial Certification in the form annexed hereto
as Exhibit A-1 (or in the form annexed to the Custodial Agreement as Exhibit
A-1, as applicable). The Initial Certification shall be amended and delivered by
the Indenture Trustee or the Custodian, as applicable, to Depositor, the
Servicer and the Indenture Trustee upon each Subsequent Transfer Date.
(b) Within 45 days after the Closing Date, the Indenture Trustee
or the Custodian on behalf of the Indenture Trustee, shall, for the benefit of
Noteholders, review each Mortgage File to ascertain that all required documents
set forth in Section 2.01 have been received and appear on their face to contain
the requisite signatures by or on behalf of the respective parties thereto, and
shall deliver to the Depositor, the Servicer and the Indenture Trustee an
Interim Certification in the form annexed hereto as Exhibit A-2 (or in the form
annexed to the applicable Custodial Agreement as Exhibit A-2, as applicable) to
the effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan prepaid in full or any specifically identified in
such certification as not covered by such certification) (i) all of the
applicable documents required by Section 2.01(d)(i)-(v) and, to the extent
actually provided to it, the documents in Section 2.01(d)(vi)-(vii) are in its
possession and (ii) such documents have been reviewed by it and appear to relate
to such Mortgage Loan. The Indenture Trustee shall have no responsibility to
determine whether the documents in Section 2.01(d)(vi) and (vii) exist. The
Indenture Trustee, or the Custodian on behalf of the Indenture Trustee, shall
determine whether such documents are executed and with respect to the
Intervening Assignments, endorsed (as specified in Section 2.01(d)(iv)), but
shall be under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that the same
are valid, binding, legally effective, properly endorsed, genuine, enforceable
or appropriate for the represented purpose or that they have actually been
recorded or are in recordable form or that they are other than what they purport
to be on their face and makes no representations as to the collectability,
insurability, priority or perfection of such Mortgage Loans. Neither the
Indenture
8
Trustee nor any Custodian shall have any responsibility for verifying the
genuineness or the legal effectiveness of or authority for any signatures of or
on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (b)
above the Indenture Trustee or the Custodian discovers any document or documents
constituting a part of a Mortgage File that is missing, does not appear regular
on its face (i.e., is mutilated, damaged, defaced, torn or otherwise physically
altered) or appears to be unrelated to the Mortgage Loans identified in the
Mortgage Loan Schedule, as applicable (each, a "Material Defect"), the Indenture
Trustee, or the Custodian on behalf of the Indenture Trustee, upon discovering
such Material Defect shall promptly identify the Mortgage Loan to which such
Material Defect relates in the Interim Certification delivered to each of the
Depositor and the Servicer and give notice thereof to the Originator and the
Seller. Within 90 days of its receipt of such notice, the Originator shall cure
such Material Defect (and, in such event, the Originator shall provide the
Indenture Trustee with an Officer's Certificate confirming that such cure has
been effected). If the Originator does not so cure such Material Defect, the
Originator shall repurchase the related Mortgage Loan from the Trust Estate at
the Loan Purchase Price. The Originator in lieu of repurchasing a Mortgage Loan
pursuant to this Section 2.02, substitute for such Mortgage Loan a Qualifying
Substitute Mortgage Loan subject to the provisions of Section 3.04. The failure
of the Indenture Trustee or the Custodian to give the notice contemplated herein
within 45 days after the Closing Date shall not affect or relieve the Originator
of its obligation to repurchase any Mortgage Loan pursuant to this Section 2.02
or any other Section of this Agreement requiring the repurchase of Mortgage
Loans from the Trust Estate.
(d) Within 180 days following the Closing Date, the Indenture
Trustee, or the Custodian, shall deliver to the Depositor, the Servicer and the
Indenture Trustee a Final Certification substantially in the form attached as
Exhibit A-3 (or in the form annexed to the Custodial Agreement as Exhibit A-3,
as applicable) evidencing the completeness of the Mortgage Files in its
possession or control, with any exceptions noted thereto.
(e) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Estate, the Indenture Trustee, the Custodian or the
Noteholders of any unsatisfied duty, claim or other liability on any Mortgage
Loan or to any Mortgagor.
(f) Notwithstanding anything to the contrary contained herein,
each of the parties hereto acknowledges that the Custodian shall perform the
applicable review of the Mortgage Loans and respective certifications thereof as
provided in this Section 2.02 and the Custodial Agreement.
Section 2.03. GRANT CLAUSE.
(a) It is intended that the conveyance by the Seller to the
Depositor and by the Depositor to the Issuer of the Mortgage Loans, as provided
for in Section 2.01 be construed as a sale by the Depositor to the Issuer of the
Mortgage Loans and other assets in the Trust Estate for the benefit of the
Securityholders. Further, it is not intended that any such conveyance be deemed
to be a pledge of the Mortgage Loans by the Seller to the Depositor and by the
Depositor to the Issuer to secure a debt or other obligation of the Seller or
the Depositor. However, in the event that the Mortgage Loans are held to be
property of the Depositor or the Seller or if for any reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans and
9
other assets in the Trust Estate, then it is intended that (a) this Agreement
shall also be deemed to be a security agreement within the meaning of Articles 8
and 9 of the New York UCC (or other applicable UCC if not the New York UCC); (b)
the conveyances provided for in Section 2.01 shall be deemed to be (1) a grant
by the Seller to the Depositor and by the Depositor to the Issuer of a security
interest in all of the Depositor's or the Seller's, as applicable, right
(including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to (A) the Mortgage Loans and Mortgage
Files, including the Credit Line Agreements, the Mortgages, any related
insurance policies and all other documents in the related Mortgage Files, (B)
all amounts payable pursuant to the Mortgage Loans in accordance with the terms
thereof and (C) any and all general intangibles consisting of, arising from or
relating to any of the foregoing, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all Liquidation Proceeds, all Insurance
Proceeds, all amounts from time to time held or invested in the Collection
Account, the Reserve Account, the Certificate Account, the Payment Account and
the Pre-Funding Account, whether in the form of cash, instruments, securities or
other property and (2) an assignment by the Seller to the Depositor and by
Depositor to the Issuer of any security interest in any and all of the
Depositor's or Seller's, as applicable, right (including the power to convey
title thereto), title and interest, whether now owned or hereafter acquired, in
and to the property described in the foregoing clauses (1)(A) through (D); (c)
the possession by the Indenture Trustee or any other agent of the Issuer of
Credit Line Agreements, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party," or possession by a purchaser or a person
designated by such secured party, for purposes of perfecting the security
interest pursuant to the New York UCC and any other applicable UCC and (d)
notifications to persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Issuer for the purpose
of perfecting such security interest under applicable law.
(b) The Seller and, at the Seller's direction, the Issuer shall,
to the extent consistent with this Agreement, take such reasonable actions as
may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans and the other property of the Trust
Estate, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of this Agreement. Without limiting the generality of the
foregoing, the Depositor shall prepare and deliver to the Issuer, and the Issuer
shall forward for filing, or shall cause to be forwarded for filing, at the
expense of the Depositor, all filings necessary to maintain the effectiveness of
any original filings necessary under the UCC to perfect the Issuer's security
interest in or lien on the Mortgage Loans as evidenced by an Officer's
Certificate of the Depositor, including without limitation (x) continuation
statements, and (y) such other statements as may be occasioned by (1) any change
of name of the Seller, the Depositor or the Issuer (such preparation and filing
shall be at the expense of the Owner Trustee, if occasioned by a change in the
Owner Trustee's name), (2) any change of location of the place of business or
the chief executive office of the Seller or the Depositor or (3) any transfer of
any interest of the Seller or the Depositor in any Mortgage Loan.
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None of the Seller, the Depositor or the Issuer shall organize under
the law of any jurisdiction other than the State under which each is organized
as of the Closing Date (whether changing its jurisdiction of organization or
organizing under an additional jurisdiction) without giving 30 days prior
written notice of such action to its immediate and mediate transferee, including
the Indenture Trustee. Before effecting such change, each of the Seller, the
Depositor or the Issuer proposing to change its jurisdiction of organization
shall prepare and file in the appropriate filing office any financing statements
or other statements necessary to continue the perfection of the interests of its
immediate and mediate transferees, including the Indenture Trustee, in the
Mortgage Loans. In connection with the transactions contemplated by this
Agreement and the Indenture, each of the Seller, the Depositor and the Issuer
authorizes its immediate or mediate transferee, including the Indenture Trustee
(who shall not be obligated to make such filing), to file in any filing office
any initial financing statements, any amendments to financing statements, any
continuation statements, or any other statements or filings described in this
Section 2.03(b).
(c) Neither the Seller nor the Depositor shall take any action
inconsistent with the sale by the Seller and Depositor of all of its right,
title and interest in and to the Trust Estate and shall indicate or shall cause
to be indicated in its records and records held on its behalf that ownership of
each Mortgage Loan and the other property of the Trust is held by the Issuer. In
addition, the Seller shall respond to any inquiries from third parties with
respect to ownership of a Mortgage Loan or any other property of the Trust
Estate by stating that it is not the owner of such Mortgage Loan and that
ownership of such Mortgage Loan or other property of the Trust Estate is held by
the Issuer on behalf of the Securityholders.
Section 2.04. FURTHER ENCUMBRANCE OF TRUST ESTATE.
(a) Immediately upon the conveyance to the Issuer by the Depositor
of any item of property in the Trust Estate pursuant to Section 2.01, all right,
title and interest of the Depositor in and to such item of property in the Trust
Estate shall terminate, and all such right, title and interest shall vest in the
Issuer, in accordance with the Trust Agreement and Sections 3802 and 3805 of the
Delaware Statutory Trust Act (12 Del. Code, ss. 3801 et seq.).
(b) Immediately upon the vesting of the Trust Estate in the Trust,
the Issuer shall have the sole right to pledge or otherwise encumber such Trust
Estate. Pursuant to the Indenture and contemporaneously with such property
vesting in the Issuer pursuant to (a) above, the Issuer shall grant a security
interest in the Trust Estate to secure the repayment of the Secured Obligations.
The Residual Certificates shall represent the beneficial ownership interest in
the Trust Estate, and the Residual Certificateholders shall be entitled to
receive distributions with respect thereto as set forth herein and in the
Indenture and Trust Agreement.
Section 2.05. CONVEYANCE OF THE SUBSEQUENT MORTGAGE LOANS.
(a) Subject to the satisfaction of the conditions set forth in
this Section 2.05 and in Section 2.01, in consideration of the Indenture
Trustee's delivery on a Subsequent Transfer Date to or upon the order of the
Depositor of amounts in the Pre-Funding Account equal to the applicable Cut-Off
Date Principal Balances of the Subsequent Mortgage Loans to be transferred to
the Trust on such Subsequent Transfer Date, the Depositor shall sell, transfer,
assign, set over and otherwise convey to the Issuer without recourse and
pursuant to the terms of the related
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Subsequent Transfer Agreement all of its right, title and interest in and to
such Subsequent Mortgage Loans (including its Principal Balance and any
Additional Balances related thereto) and all collections in respect thereof
received after the Subsequent Cut-Off Date for such Subsequent Mortgage Loans
(excluding payments in respect of accrued interest due prior to the related
Subsequent Cut-Off Date) or, with respect to any Additional Balances with
respect thereto, on or after the date of transfer to the Trust. Future advances
made to a Mortgagor under a Credit Line Agreement relating to a Subsequent
Mortgage Loan shall be part of the related Principal Balance and transferred to
the Trust pursuant to this Section 2.05, and, therefore, part of the Trust
Property upon the sale thereof to the Depositor under the Purchase Agreement.
(b) On each Subsequent Transfer Date, the Indenture Trustee shall
withdraw from the Pre-Funding Account funds in an amount equal to one hundred
percent (100%) of the aggregate of the applicable Cut-Off Date Principal
Balances of the Subsequent Mortgage Loans so transferred to the Issuer on such
Subsequent Transfer Date and shall remit such cash to the Depositor or its
designee as directed in the Subsequent Transfer Instrument for the purchase by
the Issuer of such Subsequent Mortgage Loans, along with the other property and
rights related thereto as set forth herein only upon the satisfaction of each of
the following conditions on or prior to such Subsequent Transfer Date:
(i) the Depositor shall have provided the Servicer, the
Indenture Trustee and the Rating Agencies with a timely Subsequent
Transfer Notice not later than four Business Days prior to the related
Subsequent Transfer Date;
(ii) the Depositor shall have delivered to the Indenture
Trustee a duly executed Subsequent Transfer Agreement (a form of which
is attached hereto as Exhibit F), which shall include a mortgage loan
schedule listing the Subsequent Mortgage Loans, and shall have caused
the Servicer to deliver a computer file containing such mortgage loan
schedule to the Indenture Trustee and each Rating Agency at least three
Business Days prior to the related Subsequent Transfer Date;
(iii) as of each Subsequent Transfer Date, the Depositor,
as evidenced by the delivery of the Subsequent Transfer Agreement,
shall not be insolvent, nor would it be made insolvent by such
transfer, nor was it aware of any pending insolvency;
(iv) the Pre-Funding Period shall not have ended;
(v) the representations and warranties of the Depositor
and the Originator pursuant to Sections 3.01, 3.02 and 3.03 hereof
(other than to the extent such representations and warranties relate to
statistical information as to the characteristics of the Initial
Mortgage Loans) are true and correct with respect to the Depositor and
the Originator and the Subsequent Mortgage Loans, as applicable, as of
the Subsequent Transfer Date;
(vi) in connection with the transfer and assignment of any
Subsequent Mortgage Loan, the Depositor shall satisfy the document
delivery requirements set forth in Section 2.01 hereof;
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(vii) each Subsequent Mortgage Loan shall have the
following characteristics as of the applicable Subsequent Cut-off Date:
(1) it shall not be 31 or more days contractually past due
(assuming 30 day months);
(2) it shall not have a combined loan-to-value ratio greater 100%;
(3) the original term to stated maturity thereof shall be less
than 180 months and shall not be greater than 300 months;
(4) the Credit Limit thereof shall not be less than $5,000 and
shall not exceed $1,000,000
(5) is shall not have a Margin less than 0.0% per annum and a
Maximum Loan Rate less than 10.000% per annum;
(6) it shall have been underwritten in accordance with the
criteria set forth in the Prospectus Supplement.
(viii) following delivery of all the Subsequent Mortgage
Loans to the Trust, the Mortgage Loans (including the Subsequent
Mortgage Loans, if any) and the Subsequent Mortgage Loans shall have
the following characteristics (calculated as of the applicable Cut-Off
Date) at the end of the Funding Period:
(1) the weighted average original term to stated maturity shall
not be greater than 205 months;
(2) the weighted average loan-to-value ratio of the Mortgage Loans
shall not exceed 100%;
(3) the average Principal Balance shall not be greater than
$65,000;
(4) the average Credit Limit shall be between $55,000 and $75,000
and the weighted average Draw Period shall be between 65 and 85 months;
(5) the weighted average FICO score of the Mortgage Loans shall
not be less than 705;
(6) the weighted average margin of the Mortgage Loans shall not be
less than 1.700% per annum.
(c) On each Subsequent Transfer Date, the Depositor shall have
provided the Indenture Trustee and the Rating Agencies with an Opinion of
Counsel to the effect that the transfers of the Subsequent Mortgage Loans during
the Pre-Funding Period constitute a sale of the Principal Balances of the
Subsequent Mortgage Loans to the Trust and a sale of or grant of a security
interest in the Subsequent Mortgage Loans to the Indenture Trustee; PROVIDED,
HOWEVER, that in the event of a change of law during the Pre-Funding Period that
materially affects the method of perfecting the security interest in the
Subsequent Mortgage Loans, the Depositor shall (i) provide the Indenture Trustee
and the Rating Agencies with an Opinion of Counsel to the
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effect that such transfer constitutes a sale of the Principal Balances of the
Subsequent Mortgage Loans to the Depositor and the Trust and a sale of or grant
of a security interest in the Subsequent Mortgage Loans to the Indenture
Trustee, and (ii) take such action as is necessary to perfect the interests of
the Indenture Trustee in the Subsequent Mortgage Loans.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
(a) The Depositor hereby represents and warrants to the Servicer,
the Seller, the Issuer and the Indenture Trustee, for the benefit of the
Securityholders, as of the Closing Date and each Subsequent Transfer Date or
such other date as is specified, that:
(i) This Agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a
proceeding at law or in equity);
(ii) Immediately prior to the transfer by the Depositor to
the Issuer of each Mortgage Loan, the Depositor had good and equitable
title to each Mortgage Loan (insofar as such title was conveyed to it
by the Seller) subject to no prior lien, claim, participation interest,
mortgage, security interest, pledge, charge or other encumbrance or
other interest of any nature;
(iii) As of the Closing Date, the Depositor has transferred
all of its right, title and interest in the Mortgage Loans to the
Issuer;
(iv) The Depositor has not transferred the Mortgage Loans
to the Issuer with any intent to hinder, delay or defraud any of its
creditors;
(v) The Depositor has been duly organized and is validly
existing as a limited liability company in good standing under the laws
of Delaware, with full power and authority to own its assets and
conduct its business as presently being conducted;
(vi) The Mortgage Loans constitute either "promissory
notes" or "payment intangibles" within the meaning of the UCC;
(vii) The Depositor has obtained all necessary consents and
approvals required to enter into and perform its obligations under,
this Agreement, including the sale of the Mortgage Loans hereunder;
(viii) The Depositor has caused or will have caused, within
ten days, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable
law in order to perfect the security interest in the Mortgage Loans
granted to the Indenture Trustee pursuant to the Indenture; and
(ix) Other than the sale of the Mortgage Loans hereunder
and the security interest granted to the Indenture Trustee pursuant to
the Indenture, the Depositor has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the
15
Mortgage Loans. The Depositor has not authorized the filing of and is
not aware of any financing statements against the Depositor that
include a description of collateral covering the Mortgage Loans other
than any financing statement relating to the security interest granted
to the Indenture Trustee pursuant to the Indenture or that has been
terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor.
It is understood and agreed that the representations and warranties set
forth in (i) through (ix) above shall survive the transfer of the Mortgage Loans
to the Trust.
(b) It is understood and agreed that the representations and
warranties of the Depositor set forth in Sections 3.01(a)(i) through (ix) shall
survive the execution and delivery of this Agreement. The Depositor shall
indemnify the Servicer, the Seller, the Indenture Trustee, and the Issuer and
hold each of the Servicer, the Seller, the Indenture Trustee and the Issuer
harmless against any loss, damages, penalties, fines, forfeitures, legal fees
and related costs, judgments, and other costs and expenses resulting from any
claim, demand, defense or assertion based on or grounded upon, or resulting
from, a breach of the Depositor's representations and warranties contained in
Sections 3.01(a)(i) through (ix) hereof. It is understood and agreed that the
enforcement of the obligation of the Depositor set forth in this Section 3.01 to
indemnify the Servicer, the Indenture Trustee and the Issuer as provided in this
Section 3.01 constitutes the sole remedy of the Indenture Trustee, the Servicer
and the Issuer with respect to a breach by the Depositor of the representations
and warranties in Sections 3.01(a)(i) through (ix) hereof.
Any cause of action against the Depositor relating to or arising out of
the breach of the representations and warranties made in Sections 3.01(a)(i)
through (x) hereof shall accrue upon discovery of such breach by the Issuer, the
Servicer, the Seller or the Indenture Trustee.
Section 3.02. REPRESENTATIONS AND WARRANTIES OF GREENPOINT.
(a) GreenPoint in its capacity as Servicer and Originator hereby
represents and warrants to the Depositor, the Issuer, the Seller and the
Indenture Trustee, for the benefit of the Securityholders, as of the Closing
Date and each Subsequent Transfer Date that:
(i) GreenPoint is a New York corporation, validly
existing and in good standing under the laws of the State of New York,
and has the corporate power to own its assets and to transact the
business in which it is currently engaged. GreenPoint is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction in which the character of the business transacted by it or
any properties owned or leased by it requires such qualification and in
which the failure so to qualify would have a material adverse effect on
the business, properties, assets, or condition (financial or other) of
GreenPoint;
(ii) GreenPoint has the power and authority to make,
execute, deliver and perform this Agreement and each Subsequent
Transfer Agreement, and all of the transactions contemplated under this
Agreement and each Subsequent Transfer Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement and each Subsequent Transfer Agreement.
When executed and delivered, this Agreement and each Subsequent
Transfer Agreement
16
will constitute the legal, valid and binding obligation of GreenPoint
enforceable in accordance with their terms, except as enforcement of
such terms may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable
remedies;
(iii) GreenPoint is not required to obtain the consent of
any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority,
bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement or any
Subsequent Transfer Agreement, except for such consent, license,
approval or authorization, or registration or declaration, as shall
have been obtained or filed, as the case may be, prior to the Closing
Date;
(iv) The execution, delivery and performance of this
Agreement and each Subsequent Transfer Agreement by GreenPoint will not
violate any provision of any existing law or regulation or any order or
decree of any court applicable to GreenPoint or any provision of the
Certificate of Incorporation or Bylaws of GreenPoint, or constitute a
material breach of any mortgage, Indenture, contract or other agreement
to which GreenPoint is a party or by which GreenPoint may be bound;
(v) No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending,
or to the knowledge of GreenPoint threatened, against GreenPoint or any
of its properties or with respect to this Agreement, any Subsequent
Transfer Agreement, or the Notes;
(vi) GreenPoint is solvent and will not be rendered
insolvent by the transactions described herein and, after giving effect
to the transactions described herein, will not be left with an
unreasonably small amount of capital with which to engage in the
ordinary course of its business and GreenPoint does not intend to
incur, nor does GreenPoint believe that it has incurred, debts beyond
its ability to pay as they mature. GreenPoint does not contemplate the
commencement of insolvency, liquidation or consolidation proceedings or
the appointment of a receiver, liquidator, conservator, trustee or
similar official in respect of GreenPoint or any of its respective
assets;
(vii) GreenPoint is a member of MERS in good standing, and
will comply in all material respects with the rules and procedures of
MERS in connection with the servicing of the MERS Mortgage Loans for as
long as such Mortgage Loans are registered with MERS; and
(viii) GreenPoint is not aware of any judgment or tax lien
filings against it.
(ix) GreenPoint is not in default with respect to any
order or decree of any court or any order or regulation of any federal,
state, municipal or governmental agency to the extent that any such
default would materially and adversely affect its performance
hereunder;
(x) GreenPoint is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw or
any other corporate restriction or any
17
judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Servicer to perform its
obligations under this Agreement or that requires the consent of any
third person to the execution of this Agreement or the performance by
GreenPoint of its obligations under this Agreement;
(xi) No litigation is pending or, to the best of
GreenPoint's knowledge, threatened against GreenPoint which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(xii) GreenPoint is a ▇▇▇▇▇▇ ▇▇▇- or FHLMC-approved
seller/servicer. GreenPoint is duly qualified, licensed, registered and
otherwise authorized under all applicable federal, state and local
laws, and regulations, meets the minimum capital requirements, if
applicable, set forth by the OCC, and is in good standing to service
Mortgage Loans for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and no event has occurred
which would make GreenPoint unable to comply with eligibility
requirements or which would require notification to either ▇▇▇▇▇▇ Mae
and ▇▇▇▇▇▇▇ Mac;
(xiii) the consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of GreenPoint;
(xiv) the information about GreenPoint under the headings
"GreenPoint Mortgage Funding, Inc" and "The Servicer" in the Prospectus
relating to GreenPoint does not include an untrue statement of a
material fact and does not omit to state a material fact, with respect
to the statements made, necessary in order to make the statements in
light of the circumstances under which they were made not misleading.
(b) It is understood and agreed that the representations and
warranties set forth in Section 3.02(a) shall survive the execution and delivery
of this Agreement. GreenPoint shall indemnify the Depositor, the Issuer, the
Seller and the Indenture Trustee and hold them harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
GreenPoint's representations and warranties contained in Section 3.02(a). It is
understood and agreed that the enforcement of the obligation of GreenPoint set
forth in this Section 3.02 to indemnify the Depositor, the Issuer, the Seller
and the Indenture Trustee as provided in this Section 3.02 constitutes the sole
remedy (other than as set forth in Section 7.01) of the Depositor, the Issuer,
the Seller and the Indenture Trustee, respecting a breach of the foregoing
representations and warranties. Such indemnification shall survive any
termination of GreenPoint as Servicer hereunder, the resignation or removal of
the Indenture Trustee and any termination of this Agreement.
Any cause of action against GreenPoint relating to or arising out of
the breach of any representations and warranties made in this Section 3.02 shall
accrue upon discovery of such breach by the Depositor, the Servicer, the
Indenture Trustee, the Seller or the Issuer or notice thereof by any one of such
parties to the other parties.
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Section 3.03. REPRESENTATIONS AND WARRANTIES REGARDING THE MORTGAGE
LOANS; DISCOVERY OF BREACH.
The Originator hereby makes the representations and warranties set
forth in Exhibit B to the Depositor, the Issuer, the Seller and the Indenture
Trustee, for the benefit of the Noteholders, as of the Closing Date and each
Subsequent Transfer Date. It is understood and agreed that the representations
and warranties set forth in Exhibit B and by incorporation this Section 3.03,
shall each survive delivery of the Mortgage Files and the Assignment of Mortgage
of each Mortgage Loan to the Indenture Trustee and shall continue throughout the
term of this Agreement. Upon discovery by any of the Depositor, the Servicer,
the Seller or the Indenture Trustee of a breach of any of the foregoing
representations and warranties that adversely and materially affects the value
of the related Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties. Within 90 days of the discovery of a
breach of any such representation or warranty, the Originator shall either (a)
cure such breach in all material respects or (b) not later than the Business Day
preceding the Payment Date in the month following the Collection Period in which
any such cure period expired, either (i) repurchase such Mortgage Loan or any
property acquired in respect thereof from the Issuer at the Loan Purchase Price
or (ii) substitute a Qualifying Substitute Mortgage Loan for the affected
Mortgage Loan in accordance with the procedures described below (provided that
substitution may only take place if the Payment Date is within the two-year
period following the Closing Date).
Section 3.04. REPURCHASE, PURCHASE OR SUBSTITUTION OF MORTGAGE LOANS.
(a) With respect to any Mortgage Loan repurchased by the
Originator pursuant to this Agreement, the Originator shall remit the Loan
Purchase Price to the Servicer for deposit into the Collection Account. The
Indenture Trustee, upon (i) receipt of the full amount of the Loan Purchase
Price for a Deleted Mortgage Loan, (ii) receipt of a written certification from
the Servicer that it has received the full amount of the Loan Purchase Price for
a Deleted Mortgage Loan and has deposited such amount in the Collection Account
or (iii) notification from the related Custodian of receipt of the Mortgage File
for a Qualifying Substitute Mortgage Loan substituted for a Deleted Mortgage
Loan (and receipt by the Servicer of any applicable Substitution Amount in the
Collection Account, as certified to the Indenture Trustee by the Servicer),
shall release or cause to be released and reassign to the Depositor, the Seller
or the Originator as applicable, the related Mortgage File for the Deleted
Mortgage Loan and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as shall
be necessary to vest in such party or its designee or assignee title to any
Deleted Mortgage Loan released pursuant hereto, free and clear of all security
interests, liens and other encumbrances created by this Agreement and the
Indenture, which instruments shall be prepared by the related Servicer and the
Indenture Trustee shall have no further responsibility with respect to the
Mortgage File relating to such Deleted Mortgage Loan.
(b) With respect to each Qualifying Substitute Mortgage Loan to be
delivered to the Indenture Trustee (or its custodian) in exchange for a Deleted
Mortgage Loan: (i) the Originator shall deliver to the Indenture Trustee (or a
Custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File that such
Qualifying Substitute Mortgage Loan complies with the definition hereunder and
containing the granting
19
language set forth in Section 2.01(a); and (ii) the Originator will be deemed to
have made as of the date of such transfer, with respect to such Qualifying
Substitute Mortgage Loan, each of the representations and warranties made by it
with respect to the related Deleted Mortgage Loan. For any month in which the
Originator substitutes one or more Qualifying Substitute Mortgage Loans for one
or more Deleted Mortgage Loans, the Servicer shall determine the amount (the
"Substitution Amount"), if any, by which the aggregate Loan Purchase Price of
all such Deleted Mortgage Loans exceeds the aggregate of, as to each such
Qualifying Substitute Mortgage Loan, the Principal Balance thereof as of the
date of substitution, together with one month's interest on such Principal
Balance at the applicable Loan Rate. On the date of such substitution, the
Originator shall deliver or cause to be delivered to the Servicer for deposit in
the Collection Account an amount equal to the Substitution Amount, if any,
(c) As soon as practicable after the delivery of any Qualifying
Substitute Mortgage Loan hereunder, the Originator shall (i) with respect to a
Qualifying Substitute Mortgage Loan that is a Non-MERS Mortgage Loan, cause the
Assignment of Mortgage to be recorded by the Servicer if required pursuant to
Section 2.01(c), or (ii) with respect to a Qualifying Substitute Mortgage Loan
that is a MERS Mortgage Loan, cause to be taken such actions as are necessary to
cause the Indenture Trustee (on behalf of the Issuer) to be clearly identified
as the owner of each such Mortgage Loan on the records of MERS if required
pursuant to Section 2.01(c). The Indenture Trustee (or a Custodian on behalf of
the Indenture Trustee) shall acknowledge receipt for such Qualifying Substitute
Mortgage Loan or Loans and, within ten Business Days thereafter, review such
documents as specified in Section 2.02 and deliver to the Depositor, the
Originator, the Indenture Trustee and the Servicer, with respect to such
Qualifying Substitute Mortgage Loan or Loans, a certification substantially in
the form attached hereto as Exhibit C-1, with any applicable exceptions noted
thereon. Within one year of the date of substitution, the Indenture Trustee
shall deliver to the Depositor and the Servicer a certification substantially in
the form of Exhibit C-2 hereto with respect to such Qualifying Substitute
Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly
payments due with respect to Qualifying Substitute Mortgage Loans in the month
of substitution are not part of REMIC 1 and shall be retained by the Originator.
For the month of substitution, distributions to Securityholders shall reflect
the Monthly payment due on such Deleted Mortgage Loan on or before the Due Date
in the month of substitution, and the Originator shall thereafter be entitled to
retain all amounts subsequently received in respect of such Deleted Mortgage
Loan.
Section 3.05. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
(a) The Seller hereby represents and warrants to the Servicer, the
Depositor, the Issuer and the Indenture Trustee, for the benefit of the
Securityholders, as of the Closing Date and each Subsequent transfer Date or
such other date as is specified, that:
(i) This Agreement constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors'
rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a proceeding at law
or in equity);
20
(ii) Immediately prior to the transfer by the Seller to
the Depositor of each Mortgage Loan, the Seller had good and equitable
title to each Mortgage Loan subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge or
other encumbrance or other interest of any nature;
(iii) As of the Closing Date, the Seller has transferred
all of its right, title and interest in the Initial Mortgage Loans to
the Depositor;
(iv) The Seller has not transferred the Mortgage Loans to
the Depositor with any intent to hinder, delay or defraud any of its
creditors;
(v) The Seller has been duly organized and is validly
existing as a limited liability company in good standing under the laws
of Delaware, with full power and authority to own its assets and
conduct its business as presently being conducted;
(vi) The Mortgage Loans constitute either "promissory
notes" or "payment intangibles" within the meaning of the UCC;
(vii) The Seller has obtained all necessary consents and
approvals required to enter into and perform its obligations under,
this Agreement, including the sale of the Mortgage Loans hereunder;
(viii) The Seller has caused or will have caused, within ten
days, the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest in the Mortgage Loans granted to
the Indenture Trustee pursuant to the Indenture; and
(ix) Other than the sale of the Mortgage Loans hereunder,
the Seller has not pledged, assigned, sold, granted a security interest
in, or otherwise conveyed any of the Mortgage Loans. The Seller has not
authorized the filing of and is not aware of any financing statements
against the Seller that include a description of collateral covering
the Mortgage Loans other than any financing statement relating to the
security interest granted to the Indenture Trustee pursuant to the
Indenture or that has been terminated. The Seller is not aware of any
judgment or tax lien filings against the Seller.
It is understood and agreed that the representations and warranties set
forth in (i) through (ix) above shall survive the transfer of the Mortgage Loans
to the Trust.
(b) It is understood and agreed that the representations and
warranties of the Seller set forth in Sections 3.05(a)(i) through (ix) shall
survive the execution and delivery of this Agreement. The Seller shall indemnify
the Servicer, the Seller, the Indenture Trustee, and the Issuer and hold each of
the Servicer, the Depositor, the Indenture Trustee and the Issuer harmless
against any loss, damages, penalties, fines, forfeitures, legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
the Seller's representations and warranties contained in Sections 3.05(a)(i)
through (ix) hereof. It is understood and agreed that the enforcement of the
obligation of the Seller set forth in this Section 3.05 to indemnify the
Servicer, the Indenture Trustee and the Issuer as provided in this Section 3.05
constitutes the sole
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remedy of the Indenture Trustee, the Servicer and the Issuer with respect to a
breach by the Seller of the representations and warranties in Sections
3.05(a)(i) through (ix) hereof.
Any cause of action against the Seller relating to or arising out of
the breach of the representations and warranties made in Sections 3.05(a)(i)
through (ix) hereof shall accrue upon discovery of such breach by the Issuer,
the Servicer, the Seller or the Indenture Trustee.
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ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE SERVICER
Section 4.01. THE SERVICER. (a) The Servicer is hereby authorized to
act as agent for the Trust and in such capacity shall manage, service,
administer and make collections on the Mortgage Loans and perform the other
actions under this Agreement. The Servicer shall service and administer the
Mortgage Loans in a manner consistent with the terms of this Agreement and with
general industry practice and shall have full power and authority, acting alone
or through a subservicer, to do any and all things in connection with such
servicing and administration which it may deem necessary or desirable, it being
understood, however, that the Servicer shall at all times remain responsible to
the Trust, the Indenture Trustee, the Noteholders and the Residual
Certificateholders the performance of its duties and obligations hereunder in
accordance with the terms hereof. The Servicer hereby confirms its obligation,
as Servicer, to fund future advances to the Mortgagors pursuant to the Credit
Line Agreements and, to the extent it has an interest therein, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Issuer the Additional
Balances so created. It is the intention of the Servicer that the transfer of
the Additional Balances to the Issuer shall constitute a sale, but in the event
that the transfer is held not to be a sale, this Agreement shall constitute a
grant of a security interest in the Additional Balances, and the proceeds
thereof, for the benefit of the Issuer. Any amounts received by any subservicer
in respect of a Mortgage Loan shall be deemed to have been received by the
Servicer whether or not actually received by it. Without limiting the generality
of the foregoing, the Servicer shall continue, and is hereby authorized and
empowered by the Trust, to execute and deliver, on behalf of the Trust, 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 Mortgage
Loans and with respect to the Mortgaged Properties and to make deposits to and
withdrawals from the Collection Account. The Indenture Trustee and the Owner
Trustee shall, upon the written request of a Servicing Officer, furnish the
Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder and consistent with the Indenture Trustee's internal policies.
The Indenture Trustee shall not be liable for the Servicer's use or misuse of
such powers of attorney. The Servicer in such capacity may also consent to the
placing of a lien senior to that of any Mortgage on the related Mortgaged
Property, provided that
(i) such Mortgage succeeded to a first lien position
after the related Mortgage Loan was conveyed to the Trust and,
immediately following the placement of such senior lien, such Mortgage
is in a second lien position and the outstanding principal amount of
the mortgage loan secured by such subsequent senior lien is no greater
than the outstanding principal amount of the senior mortgage loan
secured by the Mortgaged Property as of the date the related Mortgage
Loan was originated; or
(ii) the Mortgage relating to such Mortgage Loan was in a
second lien position as of the Cut-Off Date and the new senior lien
secures a mortgage loan that refinances an existing first mortgage loan
and the outstanding principal amount of the replacement first mortgage
loan immediately following such refinancing is not greater than the
outstanding
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principal amount of such existing first mortgage loan at the date of
origination of such Mortgage Loan;
PROVIDED, FURTHER, that such senior lien does not secure a note that provides
for negative amortization.
The Servicer may also, without prior approval from the Rating Agencies,
increase the Credit Limits on Mortgage Loans provided that (i) new appraisals
are obtained and the Combined Loan-to-Value Ratios of the Mortgage Loans after
giving effect to such increase are less than or equal to the Combined
Loan-to-Value Ratios of the Mortgage Loans as of the Cut-Off Date and (ii) such
increases are consistent with the Servicer's credit and collection policies. No
material change or departure from the Servicer's credit and collection policies
with respect to any Mortgage Loans as in effect as of the Closing Date shall be
permitted.
In addition, the Servicer may agree to changes in the terms of a
Mortgage Loan at the request of the Mortgagor; PROVIDED that (i) such changes do
not materially and adversely affect the interests of Noteholders or the Residual
Certificateholders, (ii) such changes are consistent with prudent and customary
business practice for enhancing recoveries on mortgage loans as evidenced by a
certificate signed by a Servicing Officer delivered to the Indenture Trustee and
(iii) the Rating Agencies are promptly notified of the changes.
In addition to the foregoing, the Servicer may solicit Mortgagors to
change any other terms of the related Mortgage Loans; PROVIDED that such changes
(i) do not materially and adversely affect the interest of Noteholders, (ii) are
consistent with prudent and customary business practice for enhancing recoveries
on mortgage loans as evidenced by a certificate signed by a Servicing Officer
delivered to the Indenture Trustee and (iii) do not adjust the maturity date of
such Mortgage Loan past the date that is six months before the Final Scheduled
Payment Date of the Notes. The Servicer shall not solicit Mortgagors with
respect to new loans (including mortgage loans) that are not Mortgage Loans nor
convey information concerning Mortgagors to any Person for such purpose.
The relationship of the Servicer (and of any successor to the Servicer
as servicer under this Agreement) to the Trust under this Agreement is intended
by the parties to be that of an independent contractor and not that of a joint
venturer, partner or agent.
(b) In the event that the rights, duties and obligations of the
Servicer are terminated hereunder, any successor to the Servicer in its sole
discretion may, to the extent permitted by applicable law, terminate the
existing subservicer arrangements with any subservicer, without charge, or
assume the terminated Servicer's rights under such subservicing arrangements
which termination or assumption will not violate the terms of such arrangements.
Section 4.02. COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS;
REMITTANCES.
(a) The Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement,
follow such collection procedures as it follows with respect to home equity
loans in its servicing portfolio comparable to the Mortgage Loans. Consistent
with the foregoing, and without limiting the generality of the foregoing, the
Servicer may in its
24
discretion (i) waive any late payment charge or any assumption fees or other
fees which may be collected in the ordinary course of servicing such Mortgage
Loans and (ii) arrange with a Mortgagor a schedule for the payment of interest
due and unpaid; PROVIDED that such arrangement is consistent with prudent and
customary business practice for enhancing recoveries with respect to the
mortgage loans it owns or services; PROVIDED, FURTHER, that notwithstanding such
arrangement such Mortgage Loans will be included in the information regarding
delinquent Mortgage Loans set forth in the Servicing Certificate and monthly
statement to Noteholders pursuant to Section 4.01.
(b) On the Closing Date, the Servicer shall open and shall
thereafter maintain a segregated account held in trust in the name of the
Securities Intermediary (the "Collection Account"), entitled "Collection
Account, Deutsche Bank National Trust Company, as indenture trustee, in trust
for Holders of the GreenPoint Mortgage Funding Trust 2005-HE1, Asset-Backed
Notes, Series 2005-HE1." The Collection Account shall relate solely to the
Securities issued by the Issuer, and funds in such Collection Account shall not
be commingled with any other monies.
(c) The Collection Account shall be an Eligible Account. If an
existing Collection Account ceases to be an Eligible Account, the Servicer shall
establish a new Collection Account that is an Eligible Account within 10 days
and transfer all funds and investment property on deposit in such existing
Collection Account into such new Collection Account.
(d) The Servicer shall give to the Indenture Trustee prior written
notice of the name and address of the depository institution at which the
Collection Account is maintained and the account number of such Collection
Account. The Servicer shall take such actions as are necessary to cause the
depository institution holding the Collection Account to hold such account in
the name of the Indenture Trustee in trust for the Noteholders under this
Agreement. On each Servicer Remittance Date, the entire amount on deposit in the
Collection Account relating to the Mortgage Loans (subject to permitted
withdrawals set forth in Section 4.03), other than amounts not included in the
Servicer Remittance Amount for such Payment Date, shall be remitted to the
Indenture Trustee for deposit into the Payment Account by wire transfer in
immediately available funds.
(e) The Servicer shall deposit into the Collection Account within
one Business Day following receipt thereof the following payments and
collections received or made by it (without duplication):
(i) all collections on and in respect of the Mortgage
Loans;
(ii) the amounts, if any, deposited to the Collection
Account pursuant to Section 4.04;
(iii) Net Liquidation Proceeds;
(iv) Insurance Proceeds (including, for this purpose, any
amount required to be credited by the Servicer pursuant to the last
sentence of Section 3.04 and excluding the portion thereof, if any,
that has been applied to the restoration or repair of the related
Mortgaged Property or released to the related Mortgagor in accordance
with the normal servicing procedures of the Servicer);
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(v) any amounts required to be deposited therein pursuant
to Section 7.01;
(vi) the Loan Purchase Price of any Mortgage Loan
repurchased by the Originator and any Substitution Amount relating to
any Qualifying Substitute Mortgage Loan pursuant to Section 3.04
hereof;
PROVIDED, HOWEVER, that with respect to each Collection Period, the Servicer
shall be permitted to retain from payments in respect of interest on the
Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing
requirements for deposit in the Collection Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Collection Account and payments in the
nature of late payment charges, assumption fees and other incidental fees and
charges relating to the Mortgage Loans need not be deposited by the Servicer in
the Collection Account and may be retained by the Servicer or the applicable
Servicer as additional servicing compensation. If the Servicer deposits in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from such Collection Account.
(f) Funds in the Collection Account may be invested in Eligible
Investments selected by and at the written direction of the Servicer, which
shall mature not later than one Business Day prior to the next Deposit Date and
any such Eligible Investment shall not be sold or disposed of prior to its
maturity. All such Eligible Investments shall be made in the name of the
Servicer in trust for the benefit of the Indenture Trustee and the
Securityholders. All income and gain realized from any Eligible Investment shall
be for the benefit of the Servicer and shall be subject to its withdrawal or
order from time to time, subject to Section 6.01, and shall not be part of the
Trust Estate. The amount of any losses incurred in respect of any such
investments shall be deposited in such Collection Account by the Servicer out of
its own funds, without any right of reimbursement therefor, immediately as
realized.
Section 4.03. WITHDRAWALS FROM THE COLLECTION ACCOUNT. The Servicer
may, from time to time, make, or cause to be made, withdrawals from the
Collection Account for the following purposes:
(i) to reimburse itself for Servicing Advances made by
it; such right to reimbursement pursuant to this subclause (i) is
limited to amounts received on or in respect of a particular Mortgage
Loan (including, for this purpose, Liquidation Proceeds and amounts
representing Insurance Proceeds with respect to the property subject to
the related Mortgage) it being understood, in the case of any such
reimbursement, that the Servicer's or Servicer's right thereto shall be
prior to the rights of the Securityholders;
(ii) to reimburse itself from Liquidation Proceeds for
Liquidation Expenses and for amounts expended by it pursuant to Section
4.06 in good faith in connection with the restoration of damaged
property and, to the extent that Liquidation Proceeds after such
reimbursement exceed the unpaid principal balance of the related
Mortgage Loan, together with accrued and unpaid interest thereon at the
applicable Loan Rate less the applicable Servicing Fee Rate for such
Mortgage Loan to the Due Date next succeeding the date of its receipt
of such Liquidation Proceeds, to pay to itself out of such excess the
amount of any unpaid assumption fees, late payment charges or other
Mortgagor charges on the related Mortgage Loan and to retain any excess
remaining thereafter as additional
26
servicing compensation, it being understood, in the case of any such
reimbursement or payment, that the Servicer's right thereto shall be
prior to the rights of the Securityholders;
(iii) pay to the Depositor, the Seller or the Originator,
as applicable, with respect to each Mortgage Loan or REO Property
acquired in respect thereof that has been purchased pursuant to this
Agreement, all amounts received thereon and not distributed on the date
on which the related repurchase was effected, and to pay to the
applicable Person any Servicing Advances to the extent specified in the
definition of Loan Purchase Price;
(iv) subject to Section 7.01, to pay to itself income
earned on the investment of funds deposited in the Collection Account;
(v) on each Servicer Remittance Date, to make payment to
the Indenture Trustee for deposit into the Payment Account of the
Servicer Remittance Amount for the related Payment Date;
(vi) to make payment to itself, the Indenture Trustee, the
Custodian, the Administrator and others pursuant to any provision of
this Agreement (including Section 6.03), the Indenture, the Custodial
Agreements or the Administration Agreement;
(vii) to withdraw funds deposited in error in the
Collection Account;
(viii) to clear and terminate the Collection Account
pursuant to Article VIII;
(ix) to reimburse a successor Servicer (solely in its
capacity as successor Servicer), for any fee, expense or advance
occasioned by a termination of the Servicer, and the assumption of such
duties by the Indenture Trustee or a successor Servicer appointed by
the Indenture Trustee pursuant to Section 7.01, in each case to the
extent not reimbursed by the terminated Servicer, it being understood,
in the case of any such reimbursement or payment, that the right of
such successor Servicer or the Indenture Trustee to be reimbursed
thereto shall be prior to the rights of the Securityholders.
In connection with withdrawals pursuant to subclauses (i), (ii) and
(iv) above, the Servicer's, or such other Person's entitlement thereto is
limited to collections or other recoveries on the related Mortgage Loan. The
Servicer shall therefore keep and maintain a separate accounting for each
Mortgage Loan it services for the purpose of justifying any withdrawal from the
Collection Account it maintains pursuant to such subclause (i), (ii) and iv).
On each Servicer Remittance Date the Servicer shall withdraw the
Servicer Remittance Amount for the related Payment Date and remit such amount to
the Trustee for deposit into the Payment Account.
Section 4.04. MAINTENANCE OF HAZARD INSURANCE; PROPERTY PROTECTION
EXPENSES. The Servicer shall cause to be maintained for each Mortgage Loan
hazard insurance naming the Servicer or its successors or assigns as loss payee
thereunder providing extended coverage in an amount which is at least equal to
the lesser of (i) the maximum insurable value of the
27
improvements securing such Mortgage Loan from time to time or (ii) the combined
Principal Balance owing on such Mortgage Loan and any mortgage loan senior to
such Mortgage Loan from time to time. The Servicer shall also maintain on
property acquired upon foreclosure, or by deed in lieu of foreclosure, hazard
insurance with extended coverage in an amount which is at least equal to the
lesser of (i) the maximum insurable value from time to time of the improvements
which are a part of such property or (ii) the combined Principal Balance owing
on such Mortgage Loan and any mortgage loan senior to such Mortgage Loan at the
time of such foreclosure or deed in lieu of foreclosure plus accrued interest
and the good-faith estimate of the Servicer of related Liquidation Expenses to
be incurred in connection therewith. Amounts collected by the Servicer under any
such policies shall be deposited in the Collection Account. In cases in which
any Mortgaged Property is located in a federally designated flood area, the
hazard insurance to be maintained for the related Mortgage Loan shall include
flood insurance. All such flood insurance shall be in such amounts as are
required under applicable guidelines of the Federal Flood Emergency Act. The
Servicer shall be under no obligation to require that any Mortgagor maintain
earthquake or other additional insurance and shall be under no obligation itself
to maintain any such additional insurance on property acquired in respect of a
Mortgage Loan, other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance. If
the Servicer shall obtain and maintain a blanket policy consistent with prudent
industry standards insuring against hazard losses on all of the Mortgage Loans
in an aggregate amount prudent under industry standards, it shall (a)
conclusively be deemed to have satisfied its obligations as set forth in the
first sentence of this Section 4.04 and (b) if there shall have been a loss
which would have been covered by such policy, deposit in the Collection Account
without right of reimbursement, as the case may be, the amount not otherwise
payable under the blanket policy because of any deductible clause.
Section 4.05. ASSUMPTION AND MODIFICATION AGREEMENTS. In any case in
which a Mortgaged Property has been or is about to be conveyed by the Mortgagor,
the Servicer shall exercise its right to accelerate the maturity of such
Mortgage Loan consistent with the then current practice of the Servicer and
without regard to the inclusion of such Mortgage Loan in the Trust. If it elects
not to enforce its right to accelerate or if it is prevented from doing so by
applicable law, the Servicer (so long as such action conforms with the
underwriting standards generally acceptable in the industry at the time for new
origination) is authorized to take or enter into an assumption and modification
agreement from or with the Person to whom such Mortgaged Property has been or is
about to be conveyed, pursuant to which such Person becomes liable under the
Credit Line Agreement and, to the extent permitted by applicable law, the
Mortgagor remains liable thereon. The Servicer shall notify the Indenture
Trustee that any assumption and modification agreement has been completed by
delivering to the Indenture Trustee an Officer's Certificate signed by a
Servicing Officer certifying that such agreement is in compliance with this
Section 4.05 and by forwarding to the Custodian the original copy of such
assumption and modification agreement. Any such assumption and modification
agreement shall, for all purposes, be considered a part of the related Mortgage
File to the same extent as all other documents and instruments constituting a
part thereof. No change in the terms of the related Credit Line Agreement may be
made by the Servicer in connection with any such assumption to the extent that
such change would not be permitted to be made in respect of the original Credit
Line Agreement pursuant to the fourth paragraph of Section 4.01(a). Any fee
collected by the Servicer for entering into any such agreement will be retained
by the Servicer as additional servicing compensation.
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Section 4.06. REALIZATION UPON DEFAULTED MORTGAGE LOANS; TRANSFER OR
REPURCHASE OF CERTAIN MORTGAGE LOANS.
(a) The Servicer shall foreclose upon or otherwise comparably
convert to ownership Mortgaged Properties securing such of the Mortgage Loans as
come into and continue in default when, in the opinion of the Servicer based
upon the practices and procedures referred to in the following sentence, no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 4.02; PROVIDED, that if the Servicer has knowledge or
reasonably believes that any Mortgaged Property is affected by hazardous or
toxic wastes or substances or that the acquisition of such Mortgaged Property
would not be commercially reasonable, then the Servicer will not cause the Trust
to acquire title to such Mortgaged Property in a foreclosure or similar
proceeding. In connection with such foreclosure or other conversion, the
Servicer shall follow such practices (including, in the case of any default on a
related senior mortgage loan, the advancing of funds to correct such default)
and procedures as it shall deem necessary or advisable and as shall be normal
and usual in its general mortgage servicing activities. The foregoing is subject
to the proviso that the Servicer shall not incur any Liquidation Expenses or
otherwise expend its own funds in connection with any foreclosure or towards the
correction of any default on a related senior mortgage loan or restoration of
any property unless it shall determine that such expenditure will increase Net
Liquidation Proceeds.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trust.
(b) With respect to any Mortgage Loan that is 90 days or more
Delinquent, the Servicer, in its sole discretion, shall have the option to
transfer the servicing of any such Mortgage Loan to a special servicer; PROVIDED
that any such special servicer will not result in the qualification, reduction
or withdrawal of the ratings assigned to the Notes by the Rating Agencies as
evidenced in writing by a letter from each Rating Agency. Upon the transfer of
servicing to the special servicer, the special servicer shall thereupon assume
in writing all of the rights and obligations of the Servicer hereunder arising
thereafter with respect to such Mortgage Loan, and the Servicer shall have no
further rights or obligations hereunder, with respect to such Mortgage Loan. The
special servicer shall be entitled to the Servicing Fee and other compensation
accruing after the servicing transfers to the special servicer with respect to
such Mortgage Loans.
(c) With respect to any Mortgage Loan that is 90 or more days
Delinquent, the Servicer, in its sole discretion, may (but is not obligated to)
purchase from the Trust any such Mortgage Loan. If it elects to make any such
purchase, the Servicer shall purchase such Mortgage Loan with its own funds at a
price equal to the Loan Purchase Price.
(d) In the event the Issuer acquires ownership of any REO Property
in respect of any Mortgage Loan, the deed or certificate of sale shall be issued
to the Issuer on behalf of the Securityholders. The Servicer shall use its
reasonable best efforts to sell any REO Property as expeditiously as possible
and in accordance with the provisions of this Agreement, but in all events prior
to the close of the third taxable year after its acquisition by the Issuer
unless the Indenture Trustee shall have been supplied with an Opinion of Counsel
to the effect that the holding by the Issuer of such REO Property subsequent to
such three-year period will not result
29
in the imposition of taxes on "prohibited transactions" of any REMIC created
under the Trust Agreement as defined in section 860F of the Code or cause any
REMIC created thereunder to fail to qualify as a REMIC at any time that any
Notes or Class C Certificates are Outstanding, in which case the Issuer may
continue to hold such REO Property (subject to any conditions contained in such
Opinion of Counsel and the other requirements of this Section 4.06). Pursuant to
its efforts to sell such REO Property, the Servicer shall protect and conserve
such REO Property for the Securityholders in such manner and to such extent as
is customary in the locality where such property is located. The decision of the
Servicer to foreclose, or to continue the foreclosure process, on a defaulted
Mortgage Loan shall be subject to a determination by the Servicer that the
related Mortgaged Property will not fail to qualify as "foreclosure property"
within meaning of Section 860G(a)(8) of the Code and that the proceeds of such
foreclosure would more likely than not exceed the costs and expenses of bringing
such a proceeding and liquidating the REO Property expected to be obtained
through such foreclosure. Notwithstanding any other provision of this Agreement,
no Mortgaged Property acquired by the Issuer shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or on
behalf of the Issuer in such a manner or pursuant to any terms that would (i)
cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code or (ii) subject any REMIC
created under the Trust Agreement to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged Property, unless the
Servicer has agreed to indemnify and hold harmless the Issuer, the Indenture
Trustee and the Trust Estate with respect to the imposition of any such taxes.
(e) The Servicer shall deposit or cause to be deposited all funds
collected and received by it in connection with the operation of any REO
Property in the Collection Account.
(f) The Servicer, upon the final disposition of any REO Property,
shall be entitled to reimbursement for any related unreimbursed Servicing
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition of
such REO Property; provided, that (without limitation of any other right of
reimbursement that the Servicer shall have hereunder) any such unreimbursed
Servicing Advances as well as any unpaid Servicing Fees may be reimbursed or
paid, as the case may be, prior to final disposition, out of any net rental
income or other net amounts derived from such REO Property.
(g) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Servicer as provided above, shall be
deposited in the Collection Account on or prior to the Determination Date in the
month following receipt thereof and be remitted by wire transfer in immediately
available funds to the Indenture Trustee for deposit into the Payment Account on
the next succeeding Servicer Remittance Date.
(h) If the Servicer determines that no significant recovery is
possible through foreclosure proceedings or other liquidation of the Mortgaged
Property related to a Mortgage Loan for which the payments due thereon are past
due, it shall charge off the related Mortgage Loan at such time as such Mortgage
Loan becomes 270 days past due. Once a Mortgage Loan becomes a Charged-off
Mortgage Loan, the Servicer shall discontinue making Advances, the Servicer
shall not be entitled to any additional servicing compensation, the Charged-Off
Mortgage Loan will give rise to a Realized Loss, and the Servicer shall follow
the procedures set
30
forth in this paragraph. Any Charged-Off Mortgage Loans shall continue to be
serviced by Servicer for the Issuer using non-foreclosure collection procedures.
The Servicer shall not be entitled to any Servicing Fees or reimbursement of
expenses in connection with such Charged-Off Mortgage Loans except to the extent
of funds available from the aggregate amount of recoveries on such Charged-Off
Mortgage Loans which shall be paid to the Servicer to reimburse it for
previously accrued Servicing Fees on any such Charged-Off Mortgage Loans. Any
Charged-Off Mortgage Loans serviced by the Servicer using non-foreclosure
collection procedures shall be so serviced until the Release Date described
below. Any recoveries on such Charged-Off Mortgage Loans (net of accrued and
unpaid Servicing Fees) received prior to the Release Date will be treated as
Liquidation Proceeds and included in Available Funds.
On the date (the "RELEASE DATE") which is six months after the date on
which the Servicer begins servicing any Charged-Off Mortgage Loan using the
non-foreclosure procedures, unless specific recoveries are anticipated by the
Servicer on a particular Charged-Off Mortgage Loan (in which case the Release
Date will be delayed until all such specific anticipated recoveries are
received, subject to the consent of the Issuer), such Charged-Off Mortgage Loan
will be released from the Trust and the lien of the Indenture. Notwithstanding
the previous sentence, if at any time after a Mortgage Loan has been charged
off, the Servicer determines that there will not be any recoveries on such
Charged-Off Mortgage Loan under any circumstances, the Servicer may release such
Charged-Off Mortgage Loan to the Issuer. Promptly following each Release Date
with respect to any Charged-Off Mortgage Loan, the Indenture Trustee, upon
receipt of a Request for Release from the Servicer, shall release to the Issuer
the related Mortgage File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Servicer shall
furnish to it and as shall be necessary to remove such Released Loan from the
trust and any lien thereon created by the Indenture and the Indenture Trustee
shall have no further responsibility with regard to such Mortgage File (it being
understood that the Indenture Trustee shall have no responsibility for
determining the sufficiency of such assignment for its intended purpose).
Section 4.07. INDENTURE TRUSTEE TO COOPERATE. On or before each Payment
Date, the Servicer will notify the Indenture Trustee, on behalf of the Trust, of
the payment in full of the Principal Balance of any Mortgage Loan during the
preceding Collection Period, which notification shall be by a certification
(which certification shall include a statement to the effect that all amounts
received in connection with such payment which are required to be deposited in
the Collection Account pursuant to Section 4.02 have been so deposited or
credited) of a Servicing Officer. Upon any such payment in full, the Servicer is
authorized to execute, pursuant to the authorization contained in Section 4.01,
if the assignments of Mortgage have been recorded as required hereunder, an
instrument of satisfaction regarding the related Mortgage, which instrument of
satisfaction shall be recorded by the Servicer if required by applicable law and
be delivered to the Person entitled thereto. It is understood and agreed that no
expenses incurred in connection with such instrument of satisfaction or transfer
shall be reimbursed from amounts deposited in the Collection Account. If the
Indenture Trustee or the Custodian is holding the Mortgage Files, from time to
time and as appropriate for the servicing or foreclosure of any Mortgage Loan,
or in connection with the payment in full of the Principal Balance of any
Mortgage Loan, the Indenture Trustee or the Custodian, as appropriate, shall,
upon request of the Servicer and delivery to the Indenture Trustee and, if
applicable, the Custodian of a Request for Release substantially in the form
attached hereto as Exhibit C-1 or
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Exhibit C-2, as applicable, signed by a Servicing Officer, release the related
Mortgage File to the Servicer (at the Servicer's expense) and the Indenture
Trustee, on behalf of the Trust, shall execute such documents, in the forms
provided by the Servicer, as shall be necessary to the prosecution of any such
proceedings or the taking of other servicing actions. Such trust receipt shall
obligate the Servicer to return the Mortgage File to the Indenture Trustee or
the Custodian, as appropriate, when the need therefor by the Servicer no longer
exists unless the Mortgage Loan shall be liquidated, in which case, upon receipt
of a certificate of a Servicing Officer similar to that hereinabove specified,
the trust receipt shall be released by the Indenture Trustee or the Custodian,
as the case may be.
In order to facilitate the foreclosure of the Mortgage securing any
Mortgage Loan that is in default following recordation of the Assignment of
Mortgage in accordance with the provisions hereof, the Indenture Trustee, on
behalf of the Trust, shall, if so requested in writing by the Servicer, execute
an appropriate assignment in the form provided to the Indenture Trustee, on
behalf of the Trust, by the Servicer to assign such Mortgage Loan for the
purpose of collection to the Servicer or to the related subservicer (any such
assignment shall unambiguously indicate that the assignment is for the purpose
of collection only), and, upon such assignment, the Servicer will thereupon
bring all required actions in its own name and otherwise enforce the terms of
the Mortgage Loan and deposit the Net Liquidation Proceeds, exclusive of
Foreclosure Profits, received with respect thereto in the Collection Account. In
the event that all delinquent payments due under any such Mortgage Loan are paid
by the Mortgagor and any other defaults are cured, then the Servicer shall,
within two Business Days, reassign such Mortgage Loan to the Indenture Trustee,
on behalf of the Trust, and return the related Mortgage File to the place where
it was being maintained. After such reassignment, the Servicer, if requested by
such Residual Certificateholders and if offered suitable indemnification and
reimbursement for expenses, is authorized to seek a deficiency judgment if
permitted by law against the Mortgagor under such Liquidated Mortgage Loan on
behalf of the Residual Certificateholders to the extent of any losses on
liquidation of any Mortgage Loan.
Section 4.08. SERVICING COMPENSATION; PAYMENT OF CERTAIN EXPENSES BY
SERVICER. The Servicer shall be entitled to receive the Servicing Fee pursuant
to Section 4.02(c) or 4.03 as compensation for its services in connection with
servicing the Mortgage Loans. Moreover, additional servicing compensation in the
form of income and gain from any investment of funds in the Collection Account,
late payment charges, early termination fees or other receipts not required to
be deposited in the Collection Account (other than Foreclosure Profits) shall be
retained by the Servicer. The Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder (including payment of
all other fees and expenses not expressly stated hereunder to be for the account
of the Noteholders and the Residual Certificateholders) and shall not be
entitled to reimbursement therefor except as specifically provided herein.
Liquidation Expenses are reimbursable to the Servicer solely from related
Liquidation Proceeds of the related Mortgage Loan.
Section 4.09. ANNUAL STATEMENT AS TO COMPLIANCE.
(a) The Servicer will deliver to the Indenture Trustee, the
Residual Certificateholders and the Rating Agencies, on or before March 15 of
each year, beginning March 15, 2006, an Officer's Certificate stating that (i) a
review of the activities of the Servicer during the preceding
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calendar year (or such shorter period as is applicable in the case of the first
report) and of its performance under this Agreement has been made under such
officer's supervision and (ii) to the best of such officer's knowledge, based on
such review, the Servicer has fulfilled all of its material obligations under
this Agreement throughout such calendar year, or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof.
(b) The Servicer shall deliver to the Indenture Trustee, the
Residual Certificateholders and each of 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 or both, would become an
Event of Servicing Termination.
Section 4.10. ANNUAL SERVICING REPORT. On or before March 15 of each
year, beginning March 15, 2006, the Servicer, at its expense, shall cause a firm
of nationally recognized independent public accountants (who may also render
other services to the Servicer) to furnish a report to the Indenture Trustee,
the Residual Certificateholders and each Rating Agency to the effect that such
firm has examined certain documents and records relating to the servicing of
mortgage loans during the most recent calendar year then ended under pooling and
servicing agreements (substantially similar to this Agreement, including this
Agreement), that such examination was conducted substantially in compliance with
the audit guide for audits of non-supervised mortgagees approved by the
Department of Housing and Urban Development for use by independent public
accountants (to the extent that the procedures in such audit guide are
applicable to the servicing obligations set forth in such agreements) and that
such examination has disclosed no items of noncompliance with the provisions of
this Agreement which, in the opinion of such firm, are material, except for such
items of noncompliance as shall be set forth in such report.
Section 4.11. RESERVED.
Section 4.12. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
THE MORTGAGE LOANS.
(a) The Servicer shall provide to the Indenture Trustee, any
Noteholders that are federally insured savings and loan associations, the Office
of Thrift Supervision, successor to the Federal Home Loan Bank Board, the FDIC
and the supervisory agents and examiners of the Office of Thrift Supervision
access to the documentation regarding the Mortgage Loans required by applicable
regulations of the Office of Thrift Supervision and the FDIC (acting as operator
of the SAIF or the BIF), such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the
Servicer. Nothing in this Section 4.12 shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access as
provided in this Section 4.12 as a result of such obligation shall not
constitute a breach of this Section 4.12.
(b) The Servicer shall supply the Servicing Certificate required
by Section 4.17 and such other information in such form as the Indenture Trustee
shall reasonably request to the Indenture Trustee and the Note Paying Agent, on
or before the start of the Determination Date
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preceding the related Payment Date, as is required in the Indenture Trustee's
reasonable judgment to enable the Note Paying Agent or the Indenture Trustee, as
the case may be, to make required distributions and to furnish the required
reports to the Noteholders and the Class C Certificateholders.
(c) The Servicer shall provide to the Class C Certificateholders
access to all documentation relating to the Mortgage Loans within the Servicer's
possession upon reasonable request and during normal business hours at the
offices of the Servicer.
Section 4.13. MAINTENANCE OF CERTAIN SERVICING INSURANCE POLICIES. The
Servicer shall maintain, at its own expense, a blanket fidelity bond (the
"FIDELITY BOND") and an errors and omissions insurance policy, with broad
coverage with financially responsible companies on all officers, employees, or
other persons acting in any capacity with regard to the Mortgage Loans to handle
funds, money, documents and papers relating to the Mortgage Loans. The Fidelity
Bond and errors and omissions insurance policy shall be in the form of the
Mortgage Banker's Blanket Bond and shall protect and insure the Servicer against
losses, including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons. Such Fidelity Bond shall also protect and insure
the Servicer against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 4.13 requiring the
Fidelity Bond and errors and omissions insurance policy shall diminish or
relieve the Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by the Federal Home Loan
Mortgage Corporation in the Federal Home Loan Mortgage Corporation's
Seller/Servicer's Guide. Upon request of the Indenture Trustee (who is under no
duty to make such request), the Servicer shall cause to be delivered to the
Indenture Trustee a certified true copy of the Fidelity Bond and errors and
omissions insurance policy and a statement from the surety and the insurer that
such Fidelity Bond and errors and omissions insurance policy shall in no event
be terminated or materially modified without thirty days' prior written notice
to the Indenture Trustee.
Section 4.14. INFORMATION REQUIRED BY THE INTERNAL REVENUE SERVICE
GENERALLY AND REPORTS OF FORECLOSURES AND ABANDONMENTS OF MORTGAGED PROPERTY.
The Servicer shall prepare and deliver all federal and state information reports
when and as required by all applicable state and federal income tax laws. In
particular, with respect to the requirement under Section 6050J of the Code to
the effect that the Servicer shall make reports of foreclosures and abandonments
of any mortgaged property for each year beginning in 2004, the Servicer shall
file reports relating to each instance occurring during the previous calendar
year in which the Servicer (i) on behalf of the Trust acquires an interest in
any Mortgaged Property through foreclosure or other comparable conversion in
full or partial satisfaction of a Mortgage Loan, or (ii) knows or has reason to
know that any Mortgaged Property has been abandoned. The reports from the
Servicer shall be in form and substance sufficient to meet the reporting
requirements imposed by Section 6050J.
Section 4.15. REPORTING REQUIREMENTS. For each Mortgage Loan, the
Servicer will accurately and fully report its borrower credit files to each of
Equifax Credit Information
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Services, Inc., TransUnion, LLC and Experion Information Solution, Inc. (or
their successors) in a timely manner on a monthly basis.
Section 4.16. MATTERS RELATING TO MERS LOANS.
The Servicer further is authorized and empowered by the Trust and the
Indenture Trustee, on behalf of the Noteholders and the Indenture Trustee, in
its own name or in the name of the subservicer, when the Servicer believes it
appropriate in its best judgment to register any Mortgage Loan on the MERS
System, or cause the removal from the registration of any Mortgage Loan on the
MERS System, to execute and deliver, on behalf of the Trust, the Indenture
Trustee and the Noteholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the Trust
and its successors and assigns.
In connection with the sale and assignment of any MERS Mortgage Loan by
the Depositor to the Issuer, the Depositor agrees that it will cause, at the
Depositor's expense, the MERS System to indicate that a security interest in
such Mortgage Loans have been assigned by the Depositor to Issuer and from the
Issuer to the Indenture Trustee in accordance with the Indenture for the benefit
of Securityholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
the information required by the MERS System to identify the series of the Notes
issued in connection with such Mortgage Loans. The Depositor further agrees that
it will not, and will not permit the Seller or the Servicer to, and the Seller
and the Servicer agree that they will not, alter the information referenced in
this paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased in accordance with
the terms of this Agreement. If at any time pursuant to Section 2.03 or Section
2.06 the Seller repurchases a Mortgage Loan that is a MERS Mortgage Loan, the
Servicer shall either (i) cause MERS to execute and deliver an assignment of the
Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and
shall cause such Mortgage to be removed from registration on the MERS System in
accordance with MERS' rules and regulations or (ii) cause MERS to designate on
the MERS System the Seller (or any party indicated by the Seller) as the
beneficial holder of such Mortgage Loan.
In connection with the termination or resignation of the Servicer
hereunder, either (i) the successor Servicer, including the Indenture Trustee if
the Indenture Trustee is acting as successor Servicer, shall represent and
warrant that it is a member of MERS in good standing and shall agree to comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the Mortgage Loans that are registered with MERS, or (ii)
the predecessor Servicer shall cooperate with the successor Servicer either (x)
in causing MERS to execute and deliver an assignment of Mortgage in recordable
form to transfer the Mortgage from MERS to the Trust and to execute and deliver
such other notices, documents and other instruments as may be necessary or
desirable to effect a transfer of such Mortgage Loan or servicing of such
Mortgage Loan on the MERS System to the successor Servicer or (y) in causing
MERS to designate on the MERS System the successor Servicer as the servicer of
such Mortgage Loan.
Section 4.17. SERVICING CERTIFICATE. Not later than seven (7) Business
Days prior to each Payment Date, the Servicer shall deliver to the Indenture
Trustee, a certificate (the "SERVICING
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CERTIFICATE") in written form or in the form of computer readable media or such
other form as may be agreed to by the Indenture Trustee and the Servicer,
together with an Officer's Certificate to the effect that such Servicing
Certificate is true and correct in all material respects, stating the related
Collection Period, the Payment Date, the series number of the Notes, the date of
this Agreement, and:
(i) the aggregate amount of collections received on the
Mortgage Loans on or prior to the Determination Date in respect of such
Collection Period;
(ii) the aggregate amount of (a) Interest Remittance
Amount and (b) Principal Remittance Amount for such Collection Period;
(iii) the Principal Remittance Amount for such Payment
Date, separately stating the components thereof;
(iv) any accrued and unpaid Servicing Fees for previous
Collection Periods and the Servicing Fee for such Collection Period;
(v) the Pool Balance as of the end of the preceding
Collection Period and as of the end of the second preceding Collection
Period;
(vi) the aggregate amount of Additional Balances created
during the previous Collection Period;
(vii) the number and aggregate Principal Balances of
Mortgage Loans (A) as to which the Minimum Monthly Payment is
delinquent for 30-59 days, 60-89 days, 90-119 days, 120-149 days,
150-179 days and 180 or more days respectively and (B) that have become
REO, in each case as of the end of the preceding Collection Period; (C)
as to which foreclosure proceedings have been commenced, and (D) in
bankruptcy and delinquent as of the close of business on the last day
of the calendar month preceding such Payment Date;
(viii) (A) cumulative losses as a percentage of the sum of
the aggregate principal balance of the Initial Mortgage Loans and the
Original Pre-Funded Amount, and (B) cumulative losses as a percentage
of current Pool Balance;
(ix) the book value of any real estate which is acquired
by the Trust through foreclosure or grant of deed in lieu of
foreclosure;
(x) the amount of any servicing advances made by the
Servicer during the related Collection Period;
(xi) reserved;
(xii) the amount, if any, of any Relief Act Interest
Shortfalls incurred during the related Collection Period;
(xiii) the number and Principal Balances of any Mortgage
Loans purchased by the Originator from the Trust pursuant to Section
3.04; and
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(xiv) any other information that the Indenture Trustee may
require to perform its duties under the Operative Documents.
In addition, on the Servicing Certificates delivered in April, May and
June of 2005, the Servicer shall also indicate (i) the amount on deposit in the
Pre-Funding Account as of such Payment Date and (ii) the aggregate of the
Principal Balances of any Subsequent Mortgage Loans purchased during the related
Collection Period.
The Indenture Trustee shall conclusively rely upon the information
contained in a Servicing Certificate for purposes of making distributions
pursuant to Article V hereof and in preparing the statements required by Section
5.09, shall have no duty to recompute, recalculate, verify or inquire into such
information and shall have no liability in so relying. The format and content of
the Servicing Certificate may be modified by the mutual agreement of the
Servicer and the Indenture Trustee. The Servicer shall give notice of any such
change to the Rating Agencies.
Section 4.18. LOAN DATA REMITTANCE REPORT. On the seventh Business Day
before each Payment Date (the "LOAN DATA REMITTANCE DATE") by noon Eastern
Standard time, the Servicer shall furnish a report (the "LOAN DATA REMITTANCE
REPORT") in the form attached as Exhibit E to this Agreement to the Indenture
Trustee by electronic medium as agreed to by the Servicer and the Indenture
Trustee.
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ARTICLE V
DEPOSITS AND DISTRIBUTIONS TO HOLDERS
Section 5.01. THE PRE-FUNDING ACCOUNT.
(a) The Indenture Trustee shall establish and maintain with itself
a separate, non-interest bearing trust account (the "PRE-FUNDING ACCOUNT")
entitled "Deutsche Bank National Trust Company, as Indenture Trustee, in trust
for the registered holders of GreenPoint Mortgage Funding Trust 2005-HE1,
Asset-Backed Notes, Series 2005-HE1." The Pre-Funding Account shall be an
Eligible Account.
(b) The Depositor may cause the institution maintaining the
Pre-Funding Account to invest any funds in the Pre-Funding Account in Eligible
Investments which shall mature or otherwise be available not later than the
Business Day next preceding the Payment Date or, with the approval of the Rating
Agencies, on the Payment Date next following the date of such investment (except
that any investment in an obligation of the institution with which the
Pre-Funding Account is maintained may mature on or before 12:00 noon, New York
time, on such Payment Date) and shall not be sold or disposed of prior to its
maturity. At any time when the Indenture Trustee is maintaining the Pre-Funding
Account, any request by the Depositor to invest funds on deposit in the
Pre-Funding Account shall be in writing, shall be delivered to the Indenture
Trustee at or before 10:30 a.m., New York time, if such investment is to be made
on such day, and shall certify that the requested investment is an Eligible
Investment which matures at or prior to the time required hereby. Any such
investment shall be registered in the name of the Indenture Trustee, as trustee
hereunder or in the name of its nominee, and to the extent such investments are
certificated they shall be maintained in the possession of the Indenture
Trustee. All income and gain realized from any such investment shall be for the
benefit of the Depositor. The amount of any losses incurred in respect of the
principal amount of any such investment shall be deposited in the Pre-Funding
Account by the Depositor out of its own funds immediately as realized. Any
investment earnings on the Pre-Funding Account shall be treated as owned by the
Depositor for federal and state income tax purposes.
(c) On the Closing Date, the Indenture Trustee (as instructed by
the Depositor) will deposit into the Pre-Funding Account from the proceeds of
the sale of the Notes, on behalf of the Noteholders, the Original Pre-Funded
Amount.
(d) On each Subsequent Transfer Date, the Depositor shall instruct
the Indenture Trustee to withdraw from the Pre-Funding Account an amount equal
to 100% of the aggregate Principal Balances of the Subsequent Mortgage Loans
transferred to the Trust on such Subsequent Transfer Date and pay such amount to
or upon the order of the Depositor upon satisfaction of the conditions set forth
in Section 2.05 of this Agreement with respect to such transfer.
(e) If (x) the Pre-Funded Amount has not been reduced to zero by
the Payment Date occurring in June 2005 or (y) the Pre-Funded Amount has been
reduced to $10,000 or less on any Payment Date occurring during the Pre-Funding
Period, in either case after giving effect to any reductions in the Pre-Funded
Amount on or before such Payment Date, the Depositor shall instruct the
Indenture Trustee to withdraw from the Pre-Funding Account and deposit to the
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Payment Account the difference, if any, between (A) the Original Pre-Funded
Amount and (B) all amounts theretofore withdrawn from the Pre-Funding Account
with respect to Subsequent Mortgage Loans.
(f) The Indenture Trustee or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Trustee's
economic self interest for (i) serving as an investment advisor, administrator,
shareholder servicing agent, custodian or sub-custodian with respect to certain
Eligible Investments, (ii) using Affiliates to effect transactions in certain
Eligible Investment and (iii) effecting transactions in certain Eligible
Investments. The Indenture Trustee does not guarantee the performance of any
Eligible Investment.
(g) The Indenture Trustee shall have not obligation to invest and
reinvest any cash held in the Pre-Funding Account in the absence of timely and
specific written investment directions from the Depositor. In no event shall the
Indenture Trustee be liable for the selection of investments or for investment
losses incurred thereon. The Indenture Trustee shall have no liability in
respect of losses incurred as a result of the liquidation of any investment
prior to its stated maturity or the failure of the Depositor to provide timely
written investment direction.
Section 5.02. THE PAYMENT ACCOUNT.
(a) The Indenture Trustee shall establish and maintain in the name
of the Securities Intermediary a separate, non-interest bearing trust account
(the "PAYMENT ACCOUNT") entitled "Payment Account, Deutsche Bank National Trust
Company, as Indenture Trustee, in trust for the benefit of the Holders of
GreenPoint Mortgage Funding Trust 2005-HE1, Asset-Backed Notes, Series
2005-HE1." The Payment Account shall be an Eligible Account. If the existing
Payment Account ceases to be an Eligible Account, the Indenture Trustee shall
establish a new Payment Account that is an Eligible Account within 10 Business
Days and transfer all funds and investment property on deposit in such existing
Payment Account into such new Payment Account. The Payment Account shall relate
solely to the Notes issued hereunder and funds in the Payment Account shall be
held separate and apart from and shall not be commingled with any other monies
including, without limitation, other monies of the Indenture Trustee held under
this Agreement. On the Closing Date the Seller shall deposit into the Payment
Account and amount equal to the Closing Date Deposit. The Indenture Trustee
shall make withdrawals from the Payment Account only for the following purposes:
(i) to pay such amounts required to paid pursuant to
Section 5.03 of this Agreement;
(ii) to withdraw amounts deposited in the Payment Account
in error; and
(iii) to clear and terminate the Payment Account pursuant
to Article VIII.
(b) The Indenture Trustee may (but is not obligated to) invest, or
cause to be invested, funds held in the Payment Account in Eligible Investments
(which may be obligations of the Indenture Trustee). All such investments must
be payable on demand or mature no later than three Business Days prior to the
next Payment Date, and shall not be sold or disposed of prior to their maturity.
All such Eligible Investments will be made in the name of the Indenture Trustee
(in its capacity as such) or its nominee. The amount of any losses incurred in
respect of any such
39
investments shall be paid by the Indenture Trustee for deposit in the Payment
Account out of its own funds, without any right of reimbursement therefor,
immediately as realized. All income and gain realized from any such investment
shall be compensation to the Indenture Trustee and shall be subject to its
withdrawal on order from time to time.
Section 5.03. PAYMENTS FROM THE PAYMENT ACCOUNT.
(a) The Indenture Trustee shall deposit into the Payment Account,
without duplication, upon receipt, (i) the proceeds of any liquidation of the
assets of the Issuer, (ii) the Servicer Remittance Amount remitted by the
Servicer together with any Substitution Amounts, and any Loan Purchase Price
amounts received by the Indenture Trustee and (iii) amounts withdrawn from the
Pre-Funding Account pursuant to Section 5.01 for deposit into the Payment
Account.
(b) On each Payment Date, from amounts on deposit in the Payment
Account, net of an amount equal to any unreimubursed expenses and indemnities
due and owing to the Indenture Trustee pursuant to Section 6.07 of the
Indenture, the Indenture Trustee shall make the following allocations,
disbursements and transfers in the following order of priority, and each such
allocation, transfer and disbursement shall be treated as having occurred only
after all preceding allocations, transfers and disbursements have occurred:
I. To the extent of the Interest Remittance Amount for such
Payment Date:
(i) concurrently, to the Holders of the Class A Notes, on
a PRO RATA basis based on the entitlement of each such Class, the
Monthly Interest Payable Amount and the Unpaid Interest Shortfall
Amount, if any, for such Payment Date and such Classes of Notes; and
(ii) sequentially to the Holders of the Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
Class B-1, Class B-2 and Class B-3 Notes, in that order, in an amount
equal to the Monthly Interest Payable Amount for such Payment Date and
each such Class.
II. On each Payment Date (a) prior to the Stepdown Date or (b) on
which a Trigger Event is in effect, to the extent of the Principal Payment
Amount for such Payment Date:
(i) to the Holders of the Class G Certificates, an amount
equal to any Additional Balance Advance Amount for such Payment Date;
(ii) to the Holders of the Class A Notes (allocated among
the Class A Notes as set forth in Section 5.03(c)), the Principal
Payment Amount remaining until the Note Balances thereof have been
reduced to zero; and
(iii) sequentially, to the Holders of the Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
Class B-1, Class B-2 and Class B-3 Notes, in that order, the Principal
Payment Amount remaining in each case, until the Note Balance of each
such Class has been reduced to zero.
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III. On each Payment Date (a) on or after the Stepdown Date and (b)
on which a Trigger Event is not in effect, to the extent of the Principal
Payment Amount for such Payment Date:
(i) first, to the Holders of the Class G Certificates, an
amount equal to any Additional Balance Advance Amount for such Payment
Date;
(ii) second, to the Holders of the Class A Notes
(allocated among the Class A Notes as set forth in Section 5.03(c)),
the Senior Principal Payment Amount for such Payment Date until the
Note Balances thereof have been reduced to zero;
(iii) third, to the Holders of the Class M-1 Notes, the
Class M-1 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero;
(iv) fourth, to the Holders of the Class M-2 Notes, the
Class M-2 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero;
(v) fifth, to the Holders of the Class M-3 Notes, the
Class M-3 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero;
(vi) sixth, to the Holders of the Class M-4 Notes, the
Class M-4 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero;
(vii) seventh, to the Holders of the Class M-5 Notes, the
Class M-5 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero;
(viii) eighth, to the Holders of the Class M-6 Notes, the
Class M-6 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero;
(ix) ninth, to the Holders of the Class M-7 Notes, the
Class M-7 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero;
(x) tenth, to the Holders of the Class M-8 Notes, the
Class M-8 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero;
(xi) eleventh, to the Holders of the Class B-1 Notes, the
Class B-1 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero;
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(xii) twelfth, to the Holders of the Class B-2 Notes, the
Class B-2 Principal Payment Amount for such Payment Date until the Note
Balance thereof has been reduced to zero; and
(xiii) thirteenth, to the Holders of the Class B-3 Notes,
the Class B-3 Principal Payment Amount for such Payment Date until the
Note Balance thereof has been reduced to zero.
IV. On each Payment Date, to the extent of any Net Monthly Excess
Cashflow for such Payment Date:
(i) to the Holders of the Class or Classes of Notes then
entitled to receive payments in respect of principal, in an amount
equal to any Extra Principal Payment Amount, payable to such Holders as
part of the Principal Payment Amount as described under Section
5.03(b)(II) and Section 5.03(b)(III) above;
(ii) to the Holders of the Class A-5 Notes, up to the
Allocated Realized Loss Amount;
(iii) sequentially, to the Holders of the Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
Class B-1, Class B-2 and Class B-3 Notes, in that order, in each case,
first up to the Unpaid Interest Shortfall Amount and second up to the
Allocated Realized Loss Amount, for each such Class of Notes for such
Payment Date;
(iv) to the Owner Trustee for distribution to the Holders
of the Class G Certificates, the Allocated Realized Loss Amount for
such Class and such Payment Date;
(v) to the Net WAC Rate Carryover Reserve Account, the
amount of any Net WAC Rate Carryover Amounts for such Payment Date; and
(vi) to the Owner Trustee, any amounts remaining in the
Payment Account for payment to the Holders of the Class C Certificates
and the Class R Certificates, as set forth in Section 3.11 of the Trust
Agreement.
(c) With respect to the Class A Notes, all principal payments will
be paid sequentially, first, to the Holders of the Class A-1A Notes and the
Class A-1B Notes, on a pro rata basis based on the Note Balance of each such
Class, until the Note Balances of the Class A-1A and Class A-1B Notes have been
reduced to zero, second, to the Holders of the Class A-2 Notes, until the Note
Balance of the Class A-2 Notes has been reduced to zero, third, to the Holders
of the Class A-3 Notes, until the Note Balance of the Class A-3 Notes has been
reduced to zero and fourth, to the Holders of the Class A-4 Notes, until the
Note Balance of the Class A-4 Notes has been reduced to zero.
(d) Following the foregoing payments, an amount equal to the
amount of Subsequent Recoveries deposited into the Collection Account shall be
applied to increase the Note Balance of the Note Balance of the Class of Notes
with the Highest Priority up to the extent of such Realized Losses previously
allocated to that Class of Notes pursuant to Section 5.06. An amount
42
equal to the amount of any remaining Subsequent Recoveries shall be applied to
increase the Note Balance of the Class of Notes with the next Highest Priority,
up to the amount of such Realized Losses previously allocated to that Class of
Notes pursuant to Section 5.06. Holders of such Notes will not be entitled to
any payment in respect of interest on the amount of such increases for any
Accrual Period preceding the Payment Date on which such increase occurs. Any
such increases shall be applied to the Note Balance of each Note of such Class
in accordance with its respective Percentage Interest.
Section 5.04. NET WAC RATE CARRYOVER RESERVE ACCOUNT.
(a) No later than the Closing Date, the Indenture Trustee shall
establish and maintain with itself, a separate, non-interest bearing trust
account titled, "Net WAC Rate Carryover Reserve Account, Deutsche Bank National
Trust Company, as Indenture Trustee, in trust for the registered holders of
GreenPoint Mortgage Funding Trust 2005-HE1, Asset-Backed Notes, Series
2005-HE1." The amount in the Net WAC Rate Carryover Reserve Account shall
include any payments received by the Indenture Trustee under the Cap Contract
and deposited into the Net WAC Rate Carryover Reserve Account for the benefit of
the Holders of the Class A-1B Notes and any amounts deposited therein pursuant
to Section 5.03(IV)(v).
(b) On each Payment Date as to which there is a Net WAC Rate
Carryover Amount payable to the Notes, the Indenture Trustee has been directed
by the Class C Certificateholders to, and therefore shall, deposit into the Net
WAC Rate Carryover Reserve Account the amount of such Net WAC Rate Carryover
Amount, rather than distributing such amounts to the Certificate Paying Agent
for distribution to the Class C Certificateholders. On each such Payment Date,
the Indenture Trustee shall hold all such amounts for the benefit of the Holders
of the Notes, and shall distribute such amounts to the Holders of the Floating
Rate Notes in the amounts and priorities set forth below.
(c) For federal and state income tax purposes, the Class C
Certificateholders shall be deemed to be the owners of the Net WAC Rate
Carryover Reserve Account and all amounts deposited into the Net WAC Rate
Carryover Reserve Account shall be treated as amounts distributed by REMIC 3 to
the Holders of the Class C Interest and by REMIC 4 to the Holders of the Class C
Certificates. Upon the termination of the Trust, or the payment in full of the
Notes, all amounts remaining on deposit in the Net WAC Rate Carryover Reserve
Account shall be released by the Indenture Trustee and distributed to the
Certificate Paying Agent for distribution to the Class C Certificateholders or
their designees. The Net WAC Rate Carryover Reserve Account shall be part of the
Trust Estate but not part of any REMIC created pursuant to the Indenture and any
payments to the Holders of the Notes of Net WAC Rate Carryover Amounts shall not
be payments with respect to a "regular interest" in a REMIC within the meaning
of Code Section 860(G)(a)(1).
(d) By accepting a Class C Certificate, each Class C
Certificateholder hereby agrees to direct the Indenture Trustee, and the
Indenture Trustee hereby is directed, to deposit into the Net WAC Rate Carryover
Reserve Account the amounts described above on each Payment Date as to which
there is any Net WAC Rate Carryover Amount rather than distributing such amounts
to the Class C Certificateholders. By accepting a Class C Certificate, each
Class C
43
Certificateholder further agrees that such direction is given for good and
valuable consideration, the receipt and sufficiency of which is acknowledged by
such acceptance.
(e) For federal tax return and information reporting, the right of
the Holders of the Class A Notes to receive payments from the Net WAC Rate
Carryover Reserve Account in respect of any Net WAC Rate Carryover Amount shall
be assigned a value of zero. Further, for federal tax return and information
reporting, the right of the Holders of the Subordinate Notes to receive payments
from the Net WAC Rate Carryover Reserve Account in respect of any Net WAC Rate
Carryover Amount may be obtained from the Indenture Trustee upon request. Such
information will be provided to the Indenture Trustee by the Underwriter on or
prior to the Closing Date.
(f) All amounts on deposit in the Net WAC Carryover Reserve
Account shall remain uninvested. On each Payment Date, after making the
distributions of Available Funds as set forth in Section 5.03 above, the
Indenture Trustee shall withdraw from the Net WAC Rate Carryover Reserve
Account, to the extent of amounts remaining on deposit therein, the amount of
any Net WAC Rate Carryover Amount for such Payment Date and pay such amount as
follows:
FIRST, from payments made under the Cap Contract, to the Class
A-1B Notes up to the related Net WAC Carryover Amount for such Payment Date;
SECOND, concurrently to each Class of the Class A Notes, in
each case up to any Net WAC Carryover Amounts for such Payment Date (to the
extent not paid not paid pursuant to clause FIRST above with respect to the
Class A-1B Notes), on a pro rata basis based on such respective Net WAC Rate
Carryover Amounts (or remaining Net WAC Carryover Amount with respect to the
Class A-1B Notes);
THIRD, sequentially, to the Class M-1 Notes, the Class M-2
Notes, the Class M-3 Notes. the Class M-4 Notes, the Class M-5 Notes, the Class
M-6 Notes, the Class M-7 Notes, the Class M-8 Notes, the Class B-1 Notes, the
Class B-2 Notes and the Class B-3 Notes, in that order, in each case up to any
Net WAC Carryover Amounts for such Payment Date.
Section 5.05. THE RESERVE ACCOUNT.
(a) The Indenture Trustee shall establish and maintain in the name
of the Securities Intermediary a separate, non-interest bearing trust account
(the "RESERVE ACCOUNT") entitled "Reserve Account, Deutsche Bank National Trust
Company, as Indenture Trustee, in trust for the benefit of the Holders of
GreenPoint Mortgage Funding Trust 2005-HE1, Asset-Backed Notes, Series
2005-HE1." The Reserve Account shall be an Eligible Account.
(b) If the existing Reserve Account ceases to be an Eligible
Account, the Indenture Trustee shall establish a new Reserve Account that is an
Eligible Account within 10 Business Days and transfer all funds and investment
property on deposit in such existing Reserve Account into such new Reserve
Account. The Reserve Account shall relate solely to the Securities and funds
therein shall be held separate and apart from and shall not be commingled with
any other monies including, without limitation, other monies of the Indenture
Trustee held under this
44
Agreement. The Indenture Trustee shall make withdrawals from the Reserve Account
only for the following purposes:
(i) to pay such amounts in respect of Additional Balance
Advance Amounts pursuant to Section 2.01(b) of this Agreement;
(ii) to pay such amounts required to paid pursuant to
Section 3.11 of the Trust Agreement; and
(iii) to withdraw amounts deposited in the Reserve Account
in error.
(c) The Indenture Trustee may (but is not obligated to) invest, or
cause to be invested, funds held in the Reserve Account in Eligible Investments
(which may be obligations of the Indenture Trustee). All such investments must
be payable on demand or mature no later than one Business Day prior to the next
Payment Date, and shall not be sold or disposed of prior to their maturity. All
such Eligible Investments will be made in the name of the Indenture Trustee (in
its capacity as such) or its nominee. The amount of any losses incurred in
respect of any such investments shall be paid by the Indenture Trustee for
deposit in the Reserve Account out of its own funds, without any right of
reimbursement therefor, immediately as realized. All income and gain realized
from any such investment shall be compensation to the Indenture Trustee and
shall be subject to its withdrawal on order from time to time.
Section 5.06. ALLOCATION OF REALIZED LOSSES, RELIEF ACT INTEREST
SHORTFALLS.
(a) On or before each Determination Date, the Servicer shall
determine as to each Mortgage Loan and REO Property the total amount of Realized
Losses, if any, incurred during the related Collection Period. The information
described in the preceding sentence that is to be supplied by the Servicer shall
be evidenced by an Officers' Certificate delivered to the Indenture Trustee by
the Servicer on the Loan Data Remittance Date immediately following the end of
the Collection Period during which any such Realized Loss was incurred. On each
Payment Date the Indenture Trustee shall calculate (i) the amount by which the
Interest Remittance Amount for such Payment Date exceeds the sum of the Monthly
Interest Payable Amounts due on each Class of Notes for such Payment Date (such
excess, the "EXCESS INTEREST" for such Payment Date) and (ii) the amount, if
any, by which the total amount of Realized Losses for the related Determination
Date as supplied by the Servicer exceeded the Excess Interest for such Payment
Date (such amount the "EXCESS LOSSES" for such Payment Date).
(b) On each Payment Date the Indenture Trustee shall allocate an
amount equal to the product of (i) the Excess Losses for such Payment Date and
(ii) a fraction, the numerator of which is the Certificate Principal Balance of
the Class G Certificates and the denominator of which is the sum of aggregate
Note Balance and the Certificate Principal Balance of the Class G Certificates,
to reduce the aggregate Certificate Principal Balance of the Class G
Certificates until such Certificate Principal Balance is zero. If on any Payment
Date (i) the Excess Losses for such Payment Date minus that amount allocated to
the Class G Certificates pursuant to the previous sentence exceeds (ii) the
Overcollateralized Amount for such Payment Date after all payments pursuant to
Section 5.02 have been made (such excess the "UNDERCOLLATERALIZED AMOUNT") the
Indenture Trustee shall allocate such Undercollateralized Amount in the
following order: first, to reduce the Note Balance of the Class B-3 Notes, until
the Note Balance of such
45
Class has been reduced to zero, second, to reduce the Note Balance of the Class
B-2 Notes, until the Note Balance of such Class has been reduced to zero, third,
to reduce the Note Balance of the Class B-1 Notes, until the Note Balance of
such Class has been reduced to zero, fourth, to reduce the Note Balance of the
Class M-8 Notes, until the Note Balance of such Class has been reduced to zero,
fifth, to reduce the Note Balance of the Class M-7 Notes, until the Note Balance
of such Class has been reduced to zero, sixth, to reduce the Note Balance of the
Class M-6 Notes, until the Note Balance of such Class has been reduced to zero,
seventh, to reduce the Note Balance of the Class M-5 Notes, until the Note
Balance of such Class has been reduced to zero, eighth, to reduce the Note
Balance of the Class M-4 Notes, until the Note Balance of such Class has been
reduced to zero, ninth, to reduce the Note Balance of the Class M-3 Notes, until
the Note Balance of such Class has been reduced to zero, tenth, to reduce the
Note Balance of the Class M-2 Notes, until the Note Balance of such Class has
been reduced to zero, eleventh, to reduce the Note Balance of the Class M-1
Notes, until the Note Balance of such Class has been reduced to zero, and
twelfth, to reduce the Note Balance of the Class A-5 Notes, until the Note
Balance of such Class has been reduced to zero. All references in this clause
(b) to the Note Balance of any Class of Notes or the Certificate Principal
Balance of the Class G Certificates shall be to the Note Balance and Certificate
Principal Balance following payments made on the relevant Payment Date but
before reduction thereof pursuant to this Section 5.06.
(c) On each Payment Date, Relief Act Interest Shortfalls incurred
during the related Collection Period with respect to the Mortgage Loans shall be
allocated in the following order of priority: first, to reduce the Monthly
Interest Payable Amount otherwise due to the Class C Certificates until zero,
and thereafter, to reduce the Monthly Interest Payable Amounts with respect to
each class of Notes on a PRO RATA basis based on the respective amounts of
interest accrued on such notes for such Payment Date.
Section 5.07. THE CERTIFICATE ACCOUNT.
(a) The Indenture Trustee, for the benefit of the
Certificateholders, shall establish and maintain in the name of the Owner
Trustee on behalf of the Certificateholders an account (the "CERTIFICATE
ACCOUNT") entitled "Certificate Account, Wilmington Trust Company, as Owner
Trustee, in trust for the holders of GreenPoint Mortgage Funding Trust 2005-HE1,
Residual Certificates."
(b) On each Payment Date, the Indenture Trustee shall withdraw
from the Payment Account all amounts required to be deposited in the Certificate
Account pursuant to Sections 5.03(IV)(iv) and (vi) and remit such amount to the
Owner Trustee or the Administrator for deposit into the Certificate Account. On
each Payment Date, the Indenture Trustee shall distribute all amounts on deposit
in the Certificate Account to the Certificateholders in respect of the Residual
Certificates as provided in the Trust Agreement. On the Payment Date on which
the Note Balance is reduced to zero, the Indenture Trustee shall distribute all
amounts remaining on deposit in the Certificate Account to the
Certificateholders in respect of the Residual Certificates in order to clear and
terminate the Certificate Account in connection with the termination of this
Agreement.
(c) All distributions made on the Residual Certificates shall be
made by wire transfer of immediately available funds to the account of such
Certificateholders. The final distribution
46
on the Residual Certificates will be made in like manner, but only upon
presentment and surrender of such Residual Certificates at the location
specified in the notice to the Certificateholders of such final distribution.
(d) The Indenture Trustee may (but is under no obligation to)
invest, or cause to be invested, funds held in the Certificate Account in
Eligible Investments (which may be obligations of the Indenture Trustee). All
such investments must be payable on demand or mature no later than one Business
Day prior to the next Payment Date, and shall not be sold or disposed of prior
to their maturity. All such Eligible Investments will be made in the name of the
Indenture Trustee (in its capacity as such) or its nominee. The amount of any
losses incurred in respect of any such investments shall be paid by the
Indenture Trustee for deposit in the Certificate Account out of its own funds,
without any right of reimbursement therefore, immediately as realized. All
income and gain realized from any such investment shall be compensation to the
Indenture Trustee and shall be subject to its withdrawal on order from time to
time.
Section 5.08. CONTROL OF THE TRUST ACCOUNTS.
(a) The Depositor, the Issuer and the Indenture Trustee hereby
appoint Deutsche Bank National Trust Company as Securities Intermediary with
respect to the Trust Accounts, and the Issuer has, pursuant to the Indenture,
granted to the Indenture Trustee, for the benefit of the Securityholders, a
security interest to secure all amounts due Securityholders hereunder in and to
the Trust Accounts and the Security Entitlements to all Financial Assets
credited to the Trust Accounts, including without limitation all amounts,
securities, investments, Financial Assets, investment property and other
property from time to time deposited in or credited to the Trust Accounts and
all proceeds thereof. Amounts held from time to time in the Trust Accounts will
continue to be held by the Securities Intermediary for the benefit of the
Indenture Trustee, as collateral agent, for the benefit of the Securityholders.
Upon the termination of the Trust or the discharge of the Indenture, the
Indenture Trustee shall inform the Securities Intermediary of such termination.
By acceptance of their Securities or interests therein, the Securityholders
shall be deemed to have appointed Deutsche Bank National Trust Company as
Securities Intermediary and Deutsche Bank National Trust Company hereby accepts
such appointment as Securities Intermediary.
(b) With respect to the Trust Account Property credited to the
Trust Accounts, the Securities Intermediary agrees that:
(i) with respect to any Trust Account Property that is
held in deposit accounts, each such deposit account shall be subject to
the exclusive custody and control of the Securities Intermediary, and
the Securities Intermediary shall have sole signature authority with
respect thereto;
(ii) the sole assets permitted in the Trust Accounts shall
be those as the Securities Intermediary agrees to treat as Financial
Assets; and
(iii) any such Trust Account Property that is, or is
treated as, a Financial Asset shall be physically delivered
(accompanied by any required endorsements) to, or credited to an
account in the name of, the Securities Intermediary or other eligible
institution
47
maintaining any Trust Account in accordance with the Securities
Intermediary's customary procedures such that the Securities
Intermediary or such other institution establishes a Security
Entitlement in favor of the Indenture Trustee with respect thereto over
which the Securities Intermediary or such other institution has
Control;
(c) The Securities Intermediary hereby confirms that (A) each
Trust Account is an account to which Financial Assets are or may be credited,
and the Securities Intermediary shall, subject to the terms of this Agreement,
treat the Indenture Trustee, as collateral agent, as entitled to exercise the
rights that comprise any Financial Asset credited to any Trust Account, (B) all
Trust Account Property in respect of any Trust Account will be promptly credited
by the Securities Intermediary to such account, and (C) all securities or other
property underlying any Financial Assets credited to any Trust Account shall be
registered in the name of the Securities Intermediary, endorsed to the
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case (x) will
any Financial Asset credited to any Trust Account be registered in the name of
the Depositor or the Issuer, payable to the order of the Depositor or the Issuer
or specially endorsed to the Depositor or the Issuer;
(d) The Securities Intermediary hereby agrees that each item of
property (whether investment property, Financial Asset, security, instrument or
cash) credited to any Trust Account shall be treated as a Financial Asset;
(e) If at any time the Securities Intermediary shall receive an
Entitlement Order from the Indenture Trustee directing transfer or redemption of
any Financial Asset relating to any Trust Account, the Securities Intermediary
shall comply with such Entitlement Order without further consent by the
Depositor, the Issuer or any other Person. If at any time the Indenture Trustee
notifies the Securities Intermediary in writing that the Issuer has been
terminated or the Indenture discharged in accordance herewith and with the Trust
Agreement or the Indenture, as applicable, and the security interest granted
pursuant to the Indenture has been released, then thereafter if the Securities
Intermediary shall receive any order from the Depositor or the Issuer directing
transfer or redemption of any Financial Asset relating to any Trust Account, the
Securities Intermediary shall comply with such Entitlement Order without further
consent by the Indenture Trustee or any other Person;
(f) In the event that the Securities Intermediary has or
subsequently obtains by agreement, operation of law or otherwise a security
interest in any Trust Account or any Financial Asset credited thereto, the
Securities Intermediary hereby agrees that such security interest shall be
subordinate to the security interest of the Indenture Trustee. The Financial
Assets credited to the Trust Accounts will not be subject to deduction, set-off,
banker's lien, or any other right in favor of any Person other than the
Indenture Trustee (except that the Securities Intermediary may set-off (i) all
amounts due to it in respect of its customary fees and expenses for the routine
maintenance and operation of the Trust Accounts and (ii) the face amount of any
checks which have been credited to any Trust Account but are subsequently
returned unpaid because of uncollected or insufficient funds);
(g) There are no other agreements (other than the Operative
Agreements) entered into between the Securities Intermediary in such capacity
and the Depositor or the Issuer with respect
48
to any Trust Account. In the event of any conflict between this Agreement (or
any provision of this Agreement) and any other agreement now existing or
hereafter entered into, the terms of this Agreement shall prevail;
(h) The rights and powers granted under the Indenture and herein
to the Indenture Trustee have been granted in order to perfect its security
interest in the Trust Accounts and the Security Entitlements to the Financial
Assets credited thereto, and are powers coupled with an interest and will
neither be affected by the bankruptcy of the Depositor or the Issuer nor by the
lapse of time. The obligations of the Securities Intermediary hereunder shall
continue in effect until the security interest of the Indenture Trustee in the
Trust Accounts, and in such Security Entitlements, has been terminated pursuant
to the terms of this Agreement and the Indenture Trustee or the Issuer, as
applicable, has notified the Securities Intermediary of such termination in
writing; and
(i) Notwithstanding anything else contained herein, the Depositor
and the Issuer agree that the Trust Accounts will be established only with the
Securities Intermediary or another institution meeting the requirements of this
Section 5.08, which by acceptance of its appointment as Securities Intermediary
agrees substantially as follows: (1) it will comply with Entitlement Orders
related to the Trust Accounts issued by the Indenture Trustee, as collateral
agent, without further consent by the Depositor or the Issuer as collateral
agent, without further consent by the Depositor; (2) until termination of the
Issuer or discharge of the Indenture, it will not enter into any other agreement
related to such accounts pursuant to which it agrees to comply with Entitlement
Orders of any Person other than the Indenture Trustee, as collateral agent with
respect to the Trust Accounts; and (3) all assets delivered or credited to it in
connection with such accounts and all investments thereof will be promptly
credited to the applicable account.
(j) Notwithstanding the foregoing, the Issuer shall have the
power, revocable by the Indenture Trustee or by the Owner Trustee with the
consent of the Indenture Trustee, to instruct the Indenture Trustee and the
Servicer to make withdrawals and distributions from the Trust Accounts for the
purpose of permitting the Servicer or the Owner Trustee to carry out its
respective duties hereunder or permitting the Indenture Trustee to carry out its
duties under the Indenture.
(k) Each of the Depositor and the Issuer agrees to take or cause
to be taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and instruments (including,
without limitation, any financing statements under the UCC or this Agreement) as
may be necessary to perfect the interests created by this Section 5.08 in favor
of the Issuer and the Indenture Trustee and otherwise fully to effectuate the
purposes, terms and conditions of this Section 5.08. The Depositor shall:
(i) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or
to maintain the perfection of the Issuer's and the Indenture Trustee's
security interest in the Trust Account Property; and
(ii) make the necessary filings of financing statements or
amendments thereto within five days after the occurrence of any of the
following: (1) any change in its
49
corporate name or any trade name or its jurisdiction of organization;
(2) any change in the location of its chief executive office or
principal place of business; and (3) any merger or consolidation or
other change in its identity or corporate structure and promptly notify
the Issuer and the Indenture Trustee of any such filings.
(iii) Neither the Depositor nor the Issuer shall organize
under the law of any jurisdiction other than the State under which each
is organized as of the Closing Date (whether changing its jurisdiction
of organization or organizing under an additional jurisdiction) without
giving 30 days prior written notice of such action to its immediate and
mediate transferee, including the Indenture Trustee. Before effecting
such change, each of the Depositor or the Issuer proposing to change
its jurisdiction of organization shall prepare and file in the
appropriate filing office any financing statements or other statements
necessary to continue the perfection of the interests of its immediate
and mediate transferees, including the Indenture Trustee, in the Trust
Account Property. In connection with the transactions contemplated by
the Operative Agreements relating to the Trust Account Property, each
of the Depositor and the Issuer authorizes its immediate or mediate
transferee, including the Indenture Trustee (who shall be under no
obligation to make such filings), to file in any filing office any
initial financing statements, any amendments to financing statements,
any continuation statements, or any other statements or filings
described in this Section 5.08.
None of the Securities Intermediary or any director, officer, employee
or agent of the Securities Intermediary shall be under any liability to the
Indenture Trustee or the Securityholders for any action taken, or not taken, in
good faith pursuant to this Agreement, or for errors in judgment; PROVIDED,
HOWEVER, that this provision shall not protect the Securities Intermediary
against any liability to the Indenture Trustee or the Securityholders which
would otherwise be imposed by reason of the Securities Intermediary's willful
misconduct, bad faith or negligence in the performance of its obligations or
duties hereunder. The Securities Intermediary and any director, officer,
employee or agent of the Securities Intermediary 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 Securities Intermediary
shall be under no duty to inquire into or investigate the validity, accuracy or
content of such document. The Issuer shall indemnify the Securities Intermediary
for and hold it harmless against any loss, liability or expense arising out of
or in connection with this Agreement and carrying out its duties hereunder,
including the costs and expenses of defending itself against any claim of
liability, except in those cases where the Securities Intermediary has been
guilty of bad faith, negligence or willful misconduct. The foregoing
indemnification shall survive any termination of this Agreement or the
resignation or removal of the Securities Intermediary.
Section 5.09. REPORTS OF INDENTURE TRUSTEE TO SECURITYHOLDERS.
(a) On each Payment Date, the Indenture Trustee shall provide to
each Securityholder or shall make available via the Indenture Trustee's internet
website, a report setting forth the following information (on the basis of
Mortgage Loan level information obtained from the Servicers):
(i) the amount being paid to the Notes of each Class;
50
(ii) the amount of interest included in such payment and
the applicable Note Rate;
(iii) the amount, if any, of any Unpaid Interest Shortfall
Amount included in such payment (and the amount of interest thereon);
(iv) the amount, if any, of the remaining Unpaid Interest
Shortfall Amount after giving effect to such payment;
(v) the amount, if any, of principal included in such
payment;
(vi) the Servicing Fee for such Payment Date;
(vii) the related Note Balance, after giving effect to such
payment;
(viii) the related initial Pool Balance and the related Pool
Balance as of the end of the preceding Collection Period;
(ix) the number and aggregate Principal Balance of
Mortgage Loans that were (A) delinquent (exclusive of Mortgage Loans in
bankruptcy or foreclosure or properties acquired by the Issuer by deed
in lieu of foreclosure) (1) 30 to 59 days, (2) 60 to 89 days, (3) 90 to
119 days, (4) 120 to 149 days, (5) 150 to 179 days, (6) 180 to 269 days
and (7) 270 or more days, (B) in foreclosure, (C) in bankruptcy and (D)
properties acquired by the Issuer by deed in lieu of foreclosure;
(x) (A) cumulative losses as a percentage of the sum of
the aggregate principal balance of the Initial Mortgage Loans and the
Original Pre-Funded Amount and (B) cumulative losses as a percentage of
current Pool Balance;
(xi) the book value of any real estate which is acquired
by the Issuer through foreclosure or grant of deed in lieu of
foreclosure;
(xii) the outstanding principal balance of the Mortgage
Loans in with the three largest outstanding Principal Balances;
(xiii) whether an Event of Servicer Termination has
occurred;
(xiv) the amount, if any, of Additional Balances created
during the related Collection Period;
(xv) the amount, if any, of the Additional Balance Advance
Amount for such Payment Date;
(xvi) the Overcollateralization Target Amount;
(xvii) the Overcollateralized Amount, after giving effect to
payments on such Payment Date;
51
(xviii) the Overcollateralization Deficiency Amount, after
giving effect to payments on such Payment Date;
(xix) the amount of any Servicing Advances made by the
Servicer during the related Collection Period;
(xx) the amount, if any, of interest shortfalls relating
to prepayments during the related Collection Period;
(xxi) the Certificate Principal Balance of each Class of
Residual Certificates; and
(xxii) the amount distributable, if any, to each Class of
Residual Certificates.
In the case of information furnished pursuant to subclauses (i) and
(ii) above, the amounts shall (except in the case of the report delivered to the
holder of the Residual Certificates) be expressed as a dollar amount per $1,000
of original principal amount of Notes.
The Indenture Trustee will make such statement (and, at its option, any
additional files containing the same information in an alternative format)
available each month to Noteholders, Certificateholders and the Rating Agencies
via the Indenture Trustee's internet website. The Indenture Trustee's internet
website shall initially be located at "▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇". Assistance
in using the website can be obtained by calling the Indenture Trustee's customer
service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above
distribution option are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The
Indenture Trustee shall have the right to change the way such statements are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Indenture Trustee shall provide timely
and adequate notification to all above parties regarding any such changes. As a
condition to access to the Indenture Trustee's internet website, the Indenture
Trustee may require registration and the acceptance of a disclaimer. The
Indenture Trustee will not be liable for the dissemination of information in
accordance with this Agreement. The Indenture Trustee shall also be entitled to
rely on but shall not be responsible for the content or accuracy of any
information provided by third parties for purposes of preparing the statement
required hereunder and may affix thereto any disclaimer it deems appropriate in
its reasonable discretion (without suggesting liability on the part of any other
party thereto).
The foregoing information and reports shall be prepared and determined
by the Indenture Trustee based solely on Mortgage Loan data provided to the
Indenture Trustee by the Servicer (in a format agreed to by the Indenture
Trustee and the Servicer), no later than 12:00 p.m. (noon) Eastern Standard Time
on the Determination Date. In preparing or furnishing the foregoing information
to the Indenture Trustee shall be entitled to rely conclusively on the accuracy
of the information or data regarding the Mortgage Loans and the related REO
Property that has been provided to the Indenture Trustee by the Servicer, and
the Indenture Trustee shall not be obligated to verify, recompute, reconcile or
recalculate any such information or data. The Indenture Trustee shall be
entitled to conclusively rely on the Mortgage Loan data provided by the Servicer
and shall have no liability for any errors in such Mortgage Loan data.
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(b) Upon the reasonable advance written request of any
Securityholder that is a savings and loan, bank or insurance company, which
request, if received by the Indenture Trustee, the Indenture Trustee shall
provide, or cause to be provided (or, to the extent that such information or
documentation is not required to be provided by a Servicer under the applicable
Servicing Agreement, shall use reasonable efforts to obtain such information and
documentation from such Servicer, and provide), to such Securityholder such
reports and access to information and documentation regarding the Mortgage Loans
as such Securityholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to an investment in the Securities;
PROVIDED, HOWEVER, that the Indenture Trustee shall be entitled to be reimbursed
by such Securityholder for the Indenture Trustee's actual expenses incurred in
providing such reports and access.
(c) Within 90 days, or such shorter period as may be required by
statute or regulation, after the end of each calendar year, the Indenture
Trustee shall have prepared and shall make available to each Person who at any
time during the calendar year was a Securityholder of record, and make available
to Note Owners (identified as such by the Clearing Agency) in accordance with
applicable regulations, a report summarizing the items provided to the
Securityholders pursuant to Section 5.09(a)(i) and (ii) on an annual basis as
may be required to enable such Holders to prepare their federal income tax
returns; PROVIDED, HOWEVER, that this Section 5.09(c) shall not be applicable
where relevant reports or summaries are required elsewhere in this Agreement.
Such information shall include the amount of original issue discount accrued on
each Class of Securities. The Servicer shall provide the Indenture Trustee with
such information as is necessary for the Indenture Trustee to prepare such
reports.
(d) The Indenture Trustee shall furnish any other information that
is required by the Code and regulations thereunder to be made available to
Securityholders. The Servicer shall provide the Indenture Trustee with such
information as is necessary for the Indenture Trustee to prepare such reports
(and the Indenture Trustee may rely solely upon such information).
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ARTICLE VI
THE SERVICER AND THE DEPOSITOR
Section 6.01. LIABILITY OF THE SERVICER AND THE DEPOSITOR. The Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Servicer herein. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Depositor.
Section 6.02. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE SERVICER. Any corporation into which the Servicer may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Servicer shall be a party, or any corporation
succeeding to the business of the Servicer, shall be the successor of the
Servicer, hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 6.03. LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS.
Neither the Servicer nor any of the directors or officers or employees or agents
of the Servicer shall be under any liability to the Trust or the Noteholders or
Residual Certificateholders for any action taken or for refraining from the
taking of any action by the Servicer 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 breach of representations
and warranties made herein, or against any specific liability imposed on the
Servicer for a breach of its servicing under this Agreement or against liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties of the Servicer or by reason of reckless
disregard of obligations and duties of the Servicer hereunder. The Servicer and
any director or officer or employee or agent of the Servicer may rely in good
faith on any document of any kind PRIMA FACIE properly executed and submitted by
any Person respecting any matters arising hereunder. The Servicer and any
director or officer or employee or agent of the Servicer shall be entitled to be
indemnified by the Trust Estate, in accordance with Section 4.03 hereof and
shall be held harmless 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 related to any specific Mortgage Loan
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of its willful misfeasance, bad faith or negligence, breach of
representations and warranties made herein, or against any specific liability
imposed on the Servicer for a breach of its servicing under this Agreement or
against in the performance of duties hereunder or by reason of its reckless
disregard of obligations and duties hereunder. The Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to duties to service the Mortgage Loans in accordance with this
Agreement, and which in its opinion may involve it in any expense or liability;
PROVIDED, HOWEVER, that the Servicer may in its sole discretion undertake any
such action which it may deem necessary or desirable in respect of this
Agreement, and the rights and duties of the parties hereto and the interests of
the Noteholders and Residual Certificateholders hereunder. In such event, the
reasonable legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Estate and the
Servicer shall be entitled to be reimbursed therefor pursuant to Section 4.03.
The Servicer's right to indemnity or reimbursement pursuant to this Section 6.03
shall
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survive any resignation or termination of the Servicer pursuant to Section 6.04
or 7.01 with respect to any losses, expenses, costs or liabilities arising prior
to such resignation or termination (or arising from events that occurred prior
to such resignation or termination).
Section 6.04. SERVICER NOT TO RESIGN. Subject to the provisions of
Section 6.02, the Servicer shall not resign from the obligations and duties
hereby imposed on it except (i) upon determination that the performance of its
obligations or 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 or its subsidiaries or Affiliates, the other
activities of the Servicer so causing such a conflict being of a type and nature
carried on by the Servicer or its subsidiaries or Affiliates at the date of this
Agreement or (ii) upon satisfaction of the following conditions: (a) the
Servicer has proposed a successor servicer to the Indenture Trustee in writing
and such proposed successor servicer is reasonably acceptable to the Depositor
and the Indenture Trustee; and (b) each Rating Agency shall have delivered a
letter to the Indenture Trustee prior to the appointment of the successor
servicer stating that the proposed appointment of such successor servicer as
Servicer hereunder will not result in the qualification, reduction or withdrawal
of the then current rating of the Notes; PROVIDED, HOWEVER, that no such
resignation by the Servicer shall become effective until the Indenture Trustee
or successor servicer designated by the Servicer as provided above shall have
assumed the Servicer's responsibilities and obligations hereunder or the
Indenture Trustee shall have designated a successor servicer in accordance with
Section 7.02. Any such resignation shall not relieve the Servicer of
responsibility for any of the obligations specified in Sections 6.06, 7.01 and
7.02 as obligations that survive the resignation or termination of the Servicer.
Any such determination permitting the resignation of the Servicer pursuant to
clause (i) above shall be evidenced by an Opinion of Counsel to such effect
delivered to the Indenture Trustee. The Servicer shall have no claim (whether by
subrogation or otherwise) or other action against any Noteholder or Residual
Certificateholder for any amounts paid by the Servicer pursuant to any provision
of this Agreement.
Section 6.05. DELEGATION OF DUTIES. In the ordinary course of business,
the Servicer at any time may delegate any of its duties hereunder to any Person,
including any of its Affiliates, or any subservicer referred to in Section 4.01,
who agrees to conduct such duties in accordance with standards comparable to
those with which the Servicer complies pursuant to Section 4.01. Such delegation
shall not relieve the Servicer of its liabilities and responsibilities with
respect to such duties and shall not constitute a resignation within the meaning
of Section 6.04.
Section 6.06. INDEMNIFICATION OF THE TRUST BY THE SERVICER. The
Servicer shall indemnify and hold harmless the Depositor, the Seller, the Trust,
the Owner Trustee and the Indenture Trustee from and against any loss,
liability, expense, damage or injury suffered or sustained by reason of the
Servicer's activities or omissions in servicing or administering the Mortgage
Loans that are not in accordance with this Agreement or breach of
representations and warranties made herein, including, but not limited to, any
judgment, award, settlement, reasonable attorneys' fees and expenses and other
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim. The Issuer shall pay the expenses and
provide the protections and indemnities to the Indenture Trustee provided for in
Section 6.07 of the Indenture, it being intended that, wherever in such Section
6.07 reference is made "to the extent provided in the Sale and Servicing
Agreement," this Agreement so provides. The provisions of
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this indemnity shall run directly to and be enforceable by an injured party
subject to the limitations hereof. The provisions of this Section 6.06 shall
survive termination of this Agreement.
Section 6.07. LIMITATION ON LIABILITY OF THE DEPOSITOR. None of the
directors or officers or employees or agents of the Depositor shall be under any
liability to the Trust, the Owner Trustee or the Indenture Trustee, the
Noteholders or the Residual Certificateholders, it being expressly understood
that all such liability is expressly waived and released as a condition of, and
as consideration for, the execution of this Agreement and the issuance of the
Notes; PROVIDED, HOWEVER, that this provision shall not protect any such Person
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith, negligence or breach of representations and warranties
made herein, or against any specific liability imposed on such Person in the
performance of the duties hereunder. The Depositor shall not be under any
liability to the Trust, the Owner Trustee or the Indenture Trustee or the
Noteholders or the Residual Certificateholders for any action taken or for
refraining from the taking of any action in its capacity as Depositor pursuant
to this Agreement whether arising from express or implied duties under this
Agreement; PROVIDED, HOWEVER, that this provision shall not protect the
Depositor against any liability which would otherwise be imposed by reason of
willful misconduct, bad faith or negligence in the performance of its duties or
by reason of reckless disregard of its obligations and duties hereunder. The
Depositor and any director or officer or employee or agent of the Depositor may
rely in good faith on any document of any kind PRIMA FACIE properly executed and
submitted by any Person respecting any matters arising hereunder.
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ARTICLE VII
EVENTS OF SERVICER TERMINATION
Section 7.01. EVENTS OF SERVICING TERMINATION. If any one of the
following events ("EVENTS OF SERVICING TERMINATION") shall occur and be
continuing:
(i) Any failure by the Servicer to deposit in the
Collection Account or Payment Account any deposit required to be made
under the terms of this Agreement which continues unremedied for a
period of one Business Day after the date upon which written notice of
such failure shall have been given to the Servicer by the Indenture
Trustee or to the Servicer and the Indenture Trustee by the Holders of
Notes evidencing more than 25% of the Principal Balance of the Notes;
or
(ii) Failure on the part of the Servicer duly to observe
or perform any covenants or agreements of the Servicer set forth in the
Notes or in this Agreement, which failure continues unremedied for a
period of thirty (30) days after the date on which written notice of
such failure, requiring the same to be remedied, and stating that such
notice is a "Notice of Default" hereunder, shall have been given to the
Servicer by the Indenture Trustee or to the Servicer and the Indenture
Trustee by the Holders of Notes evidencing more than 25% of the
Principal Balance of the Notes;
(iii) The entry against the Servicer of a decree or order
by a court or agency or supervisory authority having jurisdiction in
the premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(iv) The consent by the Servicer to the appointment of a
trustee, conservator, receiver or liquidator in any insolvency,
conservatorship, receivership, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to the
Servicer or of or relating to substantially all of its property; or the
Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations;
then, and in each and every such case, so long as an Event of Servicing
Termination shall not have been remedied by the Servicer, either the Indenture
Trustee or the Holders of Notes evidencing more than 50% of the outstanding Note
Balance of the Notes by notice then given in writing to the Servicer (and to the
Indenture Trustee if given by the Holders of Notes) may terminate all of the
rights and obligations of the Servicer as servicer under this Agreement. Any
such notice to the Servicer shall also be given to each Rating Agency and the
Class C Certificateholders. The Indenture Trustee shall not be deemed to have
notice of an Event of Servicing Termination unless a Responsible Officer of the
Indenture Trustee has actual knowledge, or has received written notice thereof.
On or after the receipt by the Servicer of such written notice, all authority
and power of the Servicer under this Agreement, whether with respect to the
Notes or the Mortgage Loans or otherwise, shall pass to and be vested in the
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Indenture Trustee pursuant to and under this Section 7.01; and, without
limitation, the Indenture Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Servicer and the Seller, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of each
Mortgage Loan and related documents, or otherwise. The Servicer agrees to
cooperate with the Indenture Trustee in effecting the termination of the
responsibilities and rights of the Servicer hereunder, including, without
limitation, the transfer to the Indenture Trustee for the administration by it
of all cash amounts that shall at the time be held by the Servicer to be
deposited by it in the Collection Account, or that have been deposited by the
Servicer in the Collection Account or thereafter received by the Servicer with
respect to the Mortgage Loans. All reasonable costs and expenses (including
attorneys' fees and expenses) incurred in connection with amending this
Agreement to reflect such succession as Servicer pursuant to this Section 7.01
shall be paid by the predecessor Servicer (or if the predecessor Servicer is the
Indenture Trustee, the initial Servicer) upon presentation of reasonable
documentation of such costs and expenses. If such costs and expenses are not
paid by the predecessor or initial Servicer, as applicable, such costs shall be
paid out of the Trust Estate.
Notwithstanding the foregoing, a delay in or failure of performance
under Section 7.01(i) for a period of one Business Day or under Section 7.01(ii)
for a period of thirty (30) days, shall not constitute an Event of Servicing
Termination if such delay or failure could not be prevented by the exercise of
reasonable diligence by the Servicer and such delay or failure was caused by an
event of FORCE MAJEURE, acts of declared or undeclared war, public disorder,
rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes,
earthquakes or floods. The preceding sentence shall not relieve the Servicer
from using its best efforts to perform its respective obligations in a timely
manner in accordance with the terms of this Agreement and the Servicer shall
provide the Indenture Trustee, the Depositor and the Noteholders and Residual
Certificateholders with an Officer's Certificate giving prompt notice of such
failure or delay by it, together with a description of its efforts to so perform
its obligations. The Servicer shall immediately notify the Indenture Trustee in
writing of any Events of Servicing Termination.
Section 7.02. INDENTURE TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Servicer receives a notice
of termination pursuant to Section 7.01 or resigns pursuant to Section 6.04, the
Indenture Trustee shall be the successor in all respects to the Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof and shall use the same degree of care and skill as is required of the
Servicer under this Agreement; provided, however, if the Indenture Trustee
becomes the Servicer hereunder, it shall have no responsibility or obligation
(i) of repurchase or substitution with respect to any Mortgage Loan, (ii) with
respect to any representation or warranty of the Servicer, and (iii) for any
liabilities, act or omission of either a predecessor or successor Servicer other
than the Indenture Trustee. As compensation therefor, the Indenture Trustee
shall be entitled to such compensation as the Servicer would have been entitled
to hereunder if no such notice of termination had been given. In addition, the
Indenture Trustee will be entitled to compensation with respect to its expenses
in connection with conversion of certain information, documents and record
keeping, as provided in
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Section 6.07 of the Indenture. Notwithstanding the above, (i) if the Indenture
Trustee is unwilling to act as successor Servicer, or (ii) if the Indenture
Trustee is legally unable so to act, the Indenture Trustee may appoint or
petition a court of competent jurisdiction to appoint, any established housing
and home finance institution, bank or other mortgage loan or home equity loan
servicer with all licenses and permits required to perform its obligations under
this Agreement and having a net worth of not less than $15,000,000 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; PROVIDED that
that the appointment of any such successor Servicer will not result in the
qualification, reduction or withdrawal of the ratings assigned to the Notes by
the Rating Agencies. Pending appointment of a successor to the Servicer
hereunder, unless the Indenture Trustee is prohibited by law from so acting, the
Indenture Trustee shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the successor shall be entitled
to receive compensation out of payments on Mortgage Loans in an amount equal to
not more than the compensation which the Servicer would otherwise have received
pursuant to Section 4.08. The Indenture Trustee and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
(b) Any successor, including the Indenture Trustee, to the
Servicer as servicer shall during the term of its service as servicer (i)
continue to service and administer the Mortgage Loans for the benefit of the
Noteholders and the Residual Certificateholders and (ii) maintain in force a
policy or policies of insurance covering errors and omissions in the performance
of its obligations as Servicer hereunder and a fidelity bond in respect of its
officers, employees and agents to the same extent as the Servicer is so required
pursuant to Section 4.13. The appointment of a successor Servicer shall not
affect any liability of the predecessor Servicer which may have arisen under
this Agreement prior to its termination as Servicer (including, without
limitation, any deductible under an Insurance Policy pursuant to Section 4.04),
nor shall any successor Servicer be liable for any acts or omissions of the
predecessor Servicer or for any breach by such Servicer of any of its
representations or warranties contained herein.
Section 7.03. NOTIFICATION TO NOTEHOLDERS AND RESIDUAL
CERTIFICATEHOLDERS. Upon the occurrence of any Event of Servicing Termination of
which a Responsible Officer of the Indenture Trustee has actual knowledge or
written notice (or any event that with the lapse of time would become an Event
of Servicing Termination unless cured), the Indenture Trustee shall promptly
notify the Owner Trustee in writing. Upon any termination or appointment of a
successor to the Servicer pursuant to this Article VII or Section 4.04, the
Indenture Trustee shall give prompt written notice thereof to the Noteholders,
Residual Certificateholders (at their respective addresses appearing in the Note
Register and in the Certificate Register) and each Rating Agency.
Section 7.04. ADDITIONAL REMEDIES OF INDENTURE TRUSTEE UPON EVENT OF
SERVICER TERMINATION. During the continuance of any Event of Servicer
Termination, so long as such Event of Servicer Termination shall not have been
remedied, the Indenture Trustee, in addition to the rights specified in Section
7.01, shall have the right, in its own name and as trustee of an express trust,
to take all actions now or hereafter existing at law, in equity or by statute to
enforce its rights and remedies and to protect the interests, and enforce the
rights and remedies, of the Securityholders (including the institution and
prosecution of all judicial, administrative and other proceedings and the
filings of proofs of claim and debt in connection therewith). Except as
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otherwise expressly provided in this Agreement, no remedy provided for by this
Agreement shall be exclusive of any other remedy, and each and every remedy
shall be cumulative and in addition to any other remedy, and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Event of Servicer Termination.
Section 7.05. WAIVER OF DEFAULTS. The Majority Securityholders may, on
behalf of all Securityholders, waive any default or Event of Servicer
Termination by the Servicer in the performance of its obligations hereunder,
except that a default in the making of any required deposit to the Payment
Account or the Certificate Account that would result in a failure of the
Indenture Trustee to make any required payment of principal of or interest on
the Securities may only be waived with the consent of 100% of the affected
Securityholders. Upon any such waiver of a past default, such default shall
cease to exist, and any Event of Servicer Termination arising therefrom shall be
deemed to have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived.
Section 7.06. DIRECTIONS BY SECURITYHOLDERS AND DUTIES OF INDENTURE
TRUSTEE DURING EVENT OF SERVICER TERMINATION. During the continuance of any
Event of Servicer Termination, the Majority Securityholders may direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee, or exercising any Issuer or power conferred upon the
Indenture Trustee, under this Agreement; PROVIDED, HOWEVER, that the Indenture
Trustee shall be under no obligation to pursue any such remedy, or to exercise
any of the trusts or powers vested in it by this Agreement (including, without
limitation, (i) the conducting or defending of any administrative action or
litigation hereunder or in relation hereto and (ii) the terminating of the
Servicer or any successor Servicer from its rights and duties as Servicer
hereunder) at the request, order or direction of the Majority Securityholders,
unless such Majority Securityholders shall have offered to the Indenture Trustee
security or indemnity satisfactory to it against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided further,
that, the Indenture Trustee shall have the right to decline to follow any such
direction if the Indenture Trustee, in accordance with an Opinion of Counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Indenture Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability for which it is
not indemnified to its satisfaction.
Section 7.07. ACTION UPON CERTAIN FAILURES OF THE SERVICER AND UPON
EVENT OF SERVICER TERMINATION. In the event that a Responsible Officer of the
Indenture Trustee shall have actual knowledge or written notice of any action or
inaction of the Servicer that would become an Event of Servicer Termination upon
the Servicer's failure to remedy the same after notice, the Indenture Trustee
shall give notice thereof to the Servicer.
Section 7.08. PREPARATION OF REPORTS.
(a) Within 15 days after each Payment Date, the Indenture Trustee
shall, in accordance with industry standards customary for securities similar to
the Securities as required by the Exchange Act and the rules and regulations of
the Securities and Exchange Commission (the "Commission"), file with the
Commission via the Electronic Data Gathering and Retrieval
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System (▇▇▇▇▇), a Form 8-K with a copy of the statement to the Securityholders
for such Payment Date as an exhibit thereto. Prior to January 30, 2006, the
Indenture Trustee shall, in accordance with industry standards applicable to the
Securities, file a Form 15 Suspension Notification with respect to the Issuer,
if applicable. Prior to March 31, 2006, the Indenture Trustee shall file (but
will not execute) a Form 10-K, in substance conforming to industry standards
applicable to the Securities, with respect to the Issuer. The Form 10-K shall
include the certification in the form set forth in Exhibit G required pursuant
to Rule 13a-14 under the Securities and Exchange Act of 1934, as amended (the
"Form 10-K Certification") signed by an appropriate party or parties designated
by the Depositor (which Form 10-K Certification the Indenture Trustee shall not
be required to sign). The Indenture Trustee shall prepare such Form 10-K and
provide the Depositor with such Form 10-K not later than March 20th of each year
in which a Form 10-K shall be filed. Following its receipt thereof, the
Depositor shall execute such Form 10-K and provide the original of such Form
10-K to the Indenture Trustee not later than March 25th (or, if the applicable
March 25th is not a Business Day, the next succeeding Business Day) of each
year; provided, however, that if the filing of such Form 10-K shall be required
to occur on a date earlier than March 30th of each year as may be required by
the Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission, then the time periods for preparation and execution of such Form
10-K set forth in this sentence shall be adjusted accordingly. Such Form 10-K
when filed shall include as exhibits the Servicer's annual statement of
compliance described under Section 4.09 and the accountant's report described
under Section 4.10 in each case to the extent they have been timely delivered to
the Indenture Trustee.
(b) The Indenture Trustee shall have no liability for any delay in
filing the Form 10-K due to the failure of such party to timely sign the Form
10-K or Form 10-K Certification. The Depositor hereby grants to the Indenture
Trustee a limited power of attorney to execute and file each such document on
behalf of the Depositor (other than the Form 10-K and the related Form 10-K
Certification). To the extent any certifications pursuant to Rule 13a-14 under
the Securities and Exchange Act of 1934, as amended, or any similar
certifications which may be required to be filed with any Form 8-K, the
Depositor shall designate the appropriate party to sign such certification
(which shall not be the Indenture Trustee). Such power of attorney shall
continue until either the earlier of (i) receipt by the Indenture Trustee from
the Depositor of written termination of such power of attorney and (ii) the
termination of the Issuer. The Depositor agrees to promptly furnish to the
Indenture Trustee, from time to time upon request, such further information,
reports, and financial statements within its control related to this Agreement
and the Mortgage Loans as the Depositor reasonably deems appropriate to prepare
and file all necessary reports with the Commission. The Indenture Trustee shall
have no responsibility to file any items other than those specified in this
Section 7.08.
(c) If so requested, the Indenture Trustee shall sign a
certification (in the form attached hereto as Exhibit I for the benefit of the
Person(s) signing the Form 10-K Certification regarding certain aspects of such
Form 10-K Certification (PROVIDED, HOWEVER, that the Indenture Trustee shall not
be required to undertake an analysis of, and shall have no responsibility for,
any financial information, accountant's report, certification or other matter
contained therein, except for computations performed by the Indenture Trustee
and reflected in distribution reports prepared by it. Nothing in this Section
6.01(l) shall relieve the Indenture Trustee of its responsibility for the
matters as to which it is certifying in the form attached hereto as Exhibit I.
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(d) Each person (including their officers or directors) that signs
any Form 10-K Certification shall be entitled to indemnification from the Trust
Estate for any liability or expense incurred by it in connection with such
certification, other than any liability or expense attributable to such Person's
own bad faith, negligence or willful misconduct. The provisions of this
subsection shall survive any termination of this Agreement and the resignation
or removal of such Person.
(e) If the Form 10-K is signed by the Depositor pursuant to
Section 7.07(a) of this Agreement then not later than March 15 of the calendar
year in which the Form 10-K is filed (or, if such day is not a Business Day, the
preceding Business Day), the Servicer shall deliver a certification in the form
attached hereto as Exhibit H.
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ARTICLE VIII
TERMINATION
Section 8.01. TERMINATION. The respective obligations and
responsibilities of the Servicer, the Depositor, the Issuer and the Indenture
Trustee created hereby (other than obligations expressly stated to survive the
termination of the Trust) shall terminate on the date (the "Termination Date")
which is the earlier to occur of:
(i) the day after the day on which the Securities are
paid in full (including payment pursuant to Section 8.02 below);
(ii) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust (including, without limitation,
the disposition of the Mortgage Loans pursuant to Section 5.04 of the
Indenture) or the disposition of all property acquired upon foreclosure
or deed in lieu of foreclosure of any Mortgage Loan and
(iii) the date that is 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador
of the United States to the Court of St. James's, living on the date
hereof.
Section 8.02. TERMINATION PRIOR TO FINAL SCHEDULED PAYMENT DATE; AND
OPTIONAL REDEMPTION.
(a) The Holder of the majority interest in the Class C
Certificates (or if such Holder fails to exercise such right, the Servicer, with
the consent of the Depositor) (the "Redeemer") shall have the right to redeem
the Notes on any Optional Redemption Date. If the holder of the majority
interest in the Class C Certificates does not exercise such optional redemption,
then the Servicer (with the consent of the Depositor) shall have the right to
redeem the Notes on any such Payment Date. If the Optional Redemption Holder
elects to exercise its right it shall notify the Issuer, the Servicer and the
Indenture Trustee no later than thirty-five (35) days prior to the Payment Date
on which the redemption is to take place. The Indenture Trustee, on behalf of
the Trust, shall make the transfer the assets of the Trust Estate on such
Payment Date and provided that the Redemption Price for the Notes has been
deposited with it on or prior to such Payment Date.
(b) The Optional Redemption Holder, at its expense, shall prepare
and deliver to the Indenture Trustee, on behalf of the Trust, for execution, at
the time the related Mortgage Loans are to be released to the Optional
Redemption Holder, appropriate documents assigning each such Mortgage Loan from
the Indenture Trustee to the Optional Redemption Holder and shall promptly
record such assignments.
Section 8.03. ADDITIONAL REQUIREMENTS.
(a) In the event that the Notes are redeemed pursuant to this
Section 8.02, each REMIC elected under the Indenture shall be terminated in
accordance with the following additional requirements, unless the Indenture
Trustee shall have been furnished with an Opinion of Counsel to the effect that
the failure of to comply with the requirements of this Section will
63
not (i) result in the imposition of taxes on "prohibited transactions" of the
Trust as defined in Section 860F of the Code or (ii) cause any REMIC
constituting part of the Trust to fail to qualify as a REMIC at any time that
any Notes or Certificates are outstanding:
(i) Within 90 days prior to the final Payment Date, the
Redeemer shall adopt and the Indenture Trustee shall sign a plan of
complete liquidation of each REMIC created under the Indenture meeting
the requirements of a "Qualified Liquidation" under Section 860F of the
Code and any regulations thereunder (as evidenced by an Opinion of
Counsel, which shall be at the expense of the Redeemer); and
(ii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Payment Date, the
Indenture Trustee shall distribute the proceeds of such sale to the
Noteholders and Certificateholders in complete liquidation of the Trust
Estate and the REMICs then in existence.
(b) By their acceptance of Notes, the Holders thereof hereby agree
to appoint the Indenture Trustee as their attorney in fact to: adopt such a plan
of complete liquidation (and the Noteholders hereby appoint the Indenture
Trustee as their attorney in fact to sign such plan) as appropriate.
Section 8.04. CERTAIN NOTICES UPON FINAL PAYMENT. The Servicer or the
Administrator, as applicable, shall give the Issuer, the Indenture Trustee, each
Rating Agency, each Securityholder and the Depositor at least 30 days' prior
written notice of the date on which the Issuer is expected to terminate in
accordance with Section 8.01, or the date on which the Securities will be
redeemed in accordance with Section 8.02. Not later than the fifth Business Day
in the Collection Period in which the final distribution in respect to the
Securities is payable to the Securityholders, the Indenture Trustee shall mail
to the Securityholders a notice specifying the procedures with respect to such
final distribution. The Indenture Trustee shall give a copy of such notice to
each Rating Agency at the time such notice is given to Securityholders.
Following the final distribution thereon, such Securities shall become void, no
longer outstanding and no longer evidence any right or interest in the Mortgage
Loans, the Mortgage Files or any proceeds of the foregoing.
Section 8.05. BENEFICIARIES. This Agreement will inure to the benefit
of and be binding upon the parties hereto, the Securityholders, and their
respective successors and permitted assigns. No other Person will have any right
or obligation hereunder.
64
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. BINDING NATURE OF AGREEMENT; ASSIGNMENT. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 9.02. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof.
Section 9.03. Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Issuer, the Servicer and the Indenture Trustee, without notice to
or the consent of any of the Holders of the Notes, (i) to cure any ambiguity,
(ii) to cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Securities, the Issuer or
this Agreement in any Prospectus or Offering Document, or to correct or
supplement any provision herein which may be inconsistent with any other
provisions herein or in any other Operative Agreement, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement or
(iv) to add, delete, or amend any provisions to the extent necessary or
desirable to comply with any requirements imposed by the Code, ERISA and their
related regulations. No such amendment effected pursuant to the preceding
sentence shall, as evidenced by an Opinion of Counsel (which shall be an expense
of the party requesting such amendment and shall not be an expense of the
Trust), adversely affect the tax status of the REMICs created by the Indenture,
nor shall such amendment adversely affect in any material respect the interests
of any Holder. Prior to entering into any amendment without the consent of
Holders pursuant to this paragraph, the Indenture Trustee may require an Opinion
of Counsel (at the expense of the party requesting such amendment) to the effect
that such amendment is permitted under this paragraph. Any such amendment shall
be deemed not to adversely affect in any material respect any Holder and the
opinion to such effect will not be required to be given, if the Indenture
Trustee receives written confirmation from each Rating Agency that such
amendment will not cause such Rating Agency to reduce the then current rating
assigned to the Notes.
(b) This Agreement may also be amended from time to time by the
Depositor, the Issuer, the Servicer and the Indenture Trustee with the consent
of the Holders of not less than 66-2/3% of the Note Balance of each Class of
Note and of the Holder of the Residual 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 Holders;
PROVIDED, HOWEVER, that no such amendment shall be made unless the Indenture
Trustee receives an Opinion of Counsel, at the expense of the party requesting
the change (but at no expense to the Indenture Trustee), that no such amendment
will (i) reduce in any manner the amount of, or
65
delay the timing of, payments which are required to be distributed on any Class
of Notes, without the consent of the Noteholders of such Class or (ii) reduce
the aforesaid percentages of Note Balance of Notes, the Holders of which are
required to consent to any such amendment unless the Indenture Trustee receives
the consent of the Holders of 100% of the Note Balance of the Notes. For
purposes of this paragraph, references to "Holder" or "Holders" shall be deemed
to include, in the case of Book-Entry Notes, the related Note Owners.
(c) Promptly after the execution of any such amendment, the
Indenture Trustee shall furnish written notification of the substance of such
amendment to each Holder, the Depositor and to each Rating Agency.
(d) It shall not be necessary for the consent of Holders under
this Section 9.03 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Indenture Trustee may prescribe.
Section 9.04. ACTS OF SECURITYHOLDERS. Except as otherwise specifically
provided herein, whenever Securityholder 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 Securityholders
if the Majority Securityholders agree to take such action or give such consent
or approval.
Section 9.05. 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 subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Depositor on direction and at the expense of Holders of
not less than 66-2/3% of the Note Balance of each Class of Notes and of the
Holder of the Residual Certificates requesting such recordation, but only when
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Securityholders, or is
necessary for the administration or servicing of the Mortgage Loans.
Section 9.06. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
Section 9.07. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (a) in the case of the Depositor, Financial Asset Securities Corp.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal, (b) in the
case of the Indenture Trustee or the Paying Agent, at its Corporate Trust
Office, (c) in the case of the Servicer, GreenPoint Mortgage Funding, Inc., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secondary Marketing, (d)
in the case of the Issuer, c/o Wilmington Trust Company, ▇▇▇▇▇▇ Square North,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or as to each party
such other address as may hereafter be
66
furnished by such party to the other parties in writing. Any notice required or
permitted to be mailed to a Holder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the applicable 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 Holder
receives such notice.
Section 9.08. SEVERABILITY OF PROVISIONS. 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 Securities or
the rights of the Holders thereof.
Section 9.09. INDULGENCES; NO WAIVERS. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
Section 9.10. HEADINGS NOT TO AFFECT INTERPRETATION. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 9.11. BENEFITS OF AGREEMENT. Nothing in this Agreement or in
the Securities, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of the
Securities, any benefit or any legal or equitable right, power, remedy or claim
under this Agreement.
Section 9.12. SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Seller shall give prompt notice to each Rating Agency of
the occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section
9.03; and
(ii) the making of a final payment hereunder.
(b) All notices to the Rating Agencies provided for by this
Section 9.12 shall be in writing and sent by first class mail, telecopy or
overnight courier, as follows: (i) if to Fitch: Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgages, Fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇, (ii) if to Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgages, Fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇ and (iii) if to S&P: Standard & Poors Ratings Service, a
divisionof The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Residential Mortgages, Fax no.: (▇▇▇) ▇▇▇-▇▇▇▇.
67
(c) The Servicer shall make available to the Rating Agencies each
report prepared pursuant to Section 4.09.
Section 9.13. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
Section 9.14. EXECUTION BY THE ISSUER. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as Owner
Trustee of the Issuer, in the exercise of the powers and authority conferred and
vested in it as trustee, (b) each of the representations, undertakings and
agreements herein made on the part of the Issuer is made and intended not as
personal representations, undertakings and agreements by Wilmington Trust
Company but is made and intended for the purpose of binding only the Issuer, (c)
nothing herein contained shall be construed as creating any liability on
Wilmington Trust Company, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any person claiming by, through or
under the parties hereto and (d) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness or expenses of
the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under this
Agreement or any other document.
68
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers hereunto duly authorized as of the
day and year first above written.
GREENPOINT MORTGAGE FUNDING TRUST
2005-HE1
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
FINANCIAL ASSET SECURITIES CORP.,
as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
GREENPOINT MORTGAGE FUNDING, INC.,
as Servicer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC., as Seller
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
ANNEX A
"Accepted Servicing Practices": As defined in each Servicing Agreement.
"Accountant": A person engaged in the practice of accounting that
(except when this Agreement provides that an Accountant must be Independent) may
be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
"Accrual Period": With respect to the Class A Notes, the Mezzanine
Notes and the Class B Notes and each Payment Date, the period commencing on the
preceding Payment Date (or in the case of the first such Accrual Period,
commencing on the Closing Date) and ending on the day preceding the current
Payment Date. With respect to the Class C Certificates and each Payment Date,
the calendar month prior to the month of such Payment Date.
"Act": The meaning specified in Section 12.03(a) of the Indenture.
"Actual Knowledge": With respect to the Owner Trustee, any officer
within the Corporate Trust Office of the Owner Trustee responsible for
administering the Trust hereunder, or under the Operative Agreements, who has
actual knowledge of an action taken or an action not taken with regard to the
Trust. Actions taken or actions not taken of which the Owner Trustee should have
had knowledge, or has constructive knowledge, do not meet the definition of
Actual Knowledge hereunder. With respect to the Administrator, any Responsible
Officer of the Administrator who has actual knowledge of an action taken or an
action not taken with regard to the Trust. Actions taken or actions not taken of
which the Administrator should have had knowledge, or has constructive
knowledge, do not meet the definition of Actual Knowledge hereunder.
"Additional Balance": With respect to the Mortgage Loans and any date
of determination, the aggregate amount of all Draws conveyed to the Issuer with
respect to such Mortgage Pool pursuant to Section 2.01.
"Additional Balance Advance Amount": As to any Payment Date the sum of
(a) the excess, if any, of (i) the aggregate principal amount of all Additional
Balances in respect of the Mortgage Loans created during the Collection Period
relating to such Payment Date over (ii) Principal Remittance Amount in respect
of the Mortgage Loans relating to such Payment Date, and (b) the Additional
Balance Advance Amounts remaining unreimbursed to the Holder of the Class G
Certificates pursuant to Section 5.03(b)(II)(i) and Section 5.03(b)(III)(i) of
this Agreement from the prior Payment Date.
"Adjusted Net Maximum Loan Rate": With respect to any Mortgage Loan (or
the related REO Property), as of any date of determination, a per annum rate of
interest equal to the applicable Maximum Rate for such Mortgage Loan as of the
first day of the month preceding the month in which the related Payment Date
occurs minus the Servicing Fee Rate.
"Adjusted Net Mortgage Rate": With respect to any Mortgage Loan (or the
related REO Property), as of any date of determination, a per annum rate of
interest equal to the applicable Loan Rate for such Mortgage Loan as of the
first day of the month preceding the month in which the related Payment Date
occurs minus the Servicing Fee Rate.
A-1
"Administration Agreement": The Administration Agreement dated as of
March 30, 2005 among the Issuer, the Administrator and the Depositor, as may be
amended or supplemented from time to time.
"Administrator": Greenwich Capital Financial Products, Inc., or any
successor in interest thereto, in its capacity as Administrator under the
Administration Agreement.
"Advance Notice": A notice to the Class G Certificateholder
substantially in the form of Exhibit D.
"Adverse REMIC Event": As defined in Section 11.04(f) of the Indenture.
"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, 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 and all amendments and
supplements hereto.
"Allocated Realized Loss Amount": With respect to any Payment Date and
the Class A-5 Notes, any Class of Mezzanine Notes, Class B Notes or Class G
Notes, the sum of (i) any Realized Losses allocated to such Class of Notes or
Certificates on such Payment Date and (ii) the amount of any Allocated Realized
Loss Amounts for such Class of Notes or Certificates remaining unpaid from the
previous Payment Date and reduced by the amount of any Subsequent Recoveries
added to the Note Balance of such Class of Notes.
"Anniversary Year": The one-year period beginning on the Closing Date
and ending on the first anniversary thereof, and each subsequent one-year period
beginning on the day after the end of the preceding Anniversary Year and ending
on the next succeeding anniversary of the Closing Date.
"Appraised Value": With respect to any Mortgage Loan, the amount set
forth in an appraisal made in connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property.
"Assignment of Mortgage": An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the assignment of the Mortgage to the Indenture Trustee for the benefit of the
Noteholders, which assignment, notice of transfer or equivalent instrument may
be in the form of one or more blanket assignments covering the Mortgage Loans
secured by Mortgaged Properties located in the same jurisdiction, if permitted
by law; PROVIDED, HOWEVER, that neither the Issuer nor the Indenture Trustee
shall be responsible for determining whether any such assignment is in
recordable form.
"Authorized Officer": With respect to the Depositor, any Person who may
execute an Officer's Certificate on behalf of the Depositor. With respect to the
Issuer, any officer of the
A-2
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) and, so long as
the Administration Agreement is in effect, any Vice President, Assistant Vice
President, Trust Officer or more senior officer of the Administrator who is
authorized to act for the Administrator in matters relating to the Issuer and to
be acted upon by the Administrator pursuant to the Administration Agreement and
who is identified on the list of Authorized Officers delivered by the
Administrator to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter).
"Available Funds": With respect to any Payment Date, the sum of the
following amounts with respect to the Mortgage Loans, net of amounts
reimbursable therefrom to the Servicer, the Indenture Trustee or the Owner
Trustee: (i) the aggregate amount of monthly payments on the Monthly Payments
due on the related Due Date and received by the Servicer by the Determination
Date, after deduction of the Indenture Trustee Fee for such Payment Date, the
Servicing Fee for such Payment Date and any accrued and unpaid Indenture Trustee
Fees and Servicing Fees in respect of any prior Payment Dates, (ii) certain
unscheduled payments in respect of the Mortgage Loans, including prepayments,
Insurance Proceeds, Net Liquidation Proceeds, Subsequent Recoveries and proceeds
from repurchases of and substitutions for such Mortgage Loans occurring during
the related Collection Period, (iii) at the end of the Funding Period, any
excess amounts transferred from the Pre-Funding Account, exclusive of any
investment income thereon and (iv) on the first Payment Date, the Closing Date
Deposit.
the amount then on deposit in the Payment Account, after taking into
account the deposits thereto made pursuant to Section 5.03(a) of this Agreement,
if any.
"Bank": Wilmington Trust Company, in its individual capacity and not as
Owner Trustee under this Agreement.
"Bankruptcy": As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief, or
seeking, consenting to or acquiescing in the appointment of a trustee, receiver
or liquidator, dissolution, or termination, as the case may be, of such Person
pursuant to the provisions of the Bankruptcy Code or any other similar federal
or state laws.
"Bankruptcy Code": The United States Bankruptcy Code, 11 U.S.C. 101 ET
SEQ., as amended.
"Base Rate": For any Payment Date and the Class A Notes, the Mezzanine
Notes and the Class B Notes, the sum of (i) LIBOR plus (ii) the related Note
Margin.
"Basic Principal Payment Amount": With respect to any Payment Date, the
Net Principal Collections for such Payment Date.
"Book-Entry Notes": Beneficial interests in Notes designated as "Book
Entry Notes" in the Indenture, ownership and transfers of which shall be
evidenced or made through book entries by a Clearing Agency as described in
Section 2.10 of the Indenture; provided, that after the
A-3
occurrence of a condition whereupon Book-Entry Notes become Definitive Notes
that are to be issued to Note Owners, such Book Entry Notes shall no longer be
"Book Entry Notes."
"Business Day": Any day other than (i) a Saturday or a Sunday, (ii) a
day on which banking institutions in New York, New York or, if other than New
York, the city in which the Corporate Trust Office of the Indenture Trustee is
located, or the States of New York or Delaware are authorized or obligated by
law or executive order to be closed, or (iii) with respect to any Servicer
Remittance Date or any Servicer reporting date, the States specified in the
definition of "Business Day" in the related Servicing Agreement, are authorized
or obligated by law or executive order to be closed.
"Cap Contract": The Cap Contract between the counterparty and the
Indenture Trustee, a form of which is attached hereto as Exhibit I.
"Certificate Account": The account maintained by the Administrator
pursuant to Section 5.07.
"Certificate of Trust": The certificate of trust of the Issuer
substantially in the form of Exhibit C to the Trust Agreement.
"Certificate Paying Agent": Initially, the Indenture Trustee, in its
capacity as Certificate Paying Agent, or any successor to the Indenture Trustee
in such capacity.
"Certificate Principal Balance": With respect to the Class G
Certificates and any Payment Date, the Additional Balance Advance Amount for
such Payment Date. With respect to the Class C Certificates as of any date of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC 2 Regular Interests over (B) the
then aggregate Note Balance of the Class A Notes, the Mezzanine Notes and the
Class B Notes then outstanding.
"Certificate Register": The register maintained by the Certificate
Registrar in which the Certificate Registrar shall provide for the registration
of the Residual Certificates and of transfers and exchanges of such Residual
Certificates.
"Certificate Registrar": Initially, Deutsche Bank National Trust
Company, in its capacity as Certificate Registrar, or any successor.
"Certificateholder": The Person in whose name a Residual Certificate is
registered in the Certificate Register.
"Charged-Off Mortgage Loan": Means any Mortgage Loan with a Principal
Balance that has been written down on the related Servicer's servicing system in
accordance with Section 4.06(h) hereof.
"Class": All Notes and Certificates bearing the same class designation.
"Class A Note": Any Note designated as a "Class A Note" on the face
thereof, substantially in the form of Exhibit A-1 to the Indenture.
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"Class B Note": Any Note designated as a "Class B Note" on the face
thereof, substantially in the form of Exhibit A-3 to the Indenture.
"Class B-1 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date), (ii) the
Note Balance of the Class M-1 Notes (after taking into account the payment of
the Class M-1 Principal Payment Amount on such Payment Date), (iii) the Note
Balance of the Class M-2 Notes (after taking into account the payment of the
Class M-2 Principal Payment Amount on such Payment Date), (iv) the Note Balance
of the Class M-3 Notes (after taking into account the payment of the Class M-3
Principal Payment Amount on such Payment Date), (v) the Note Balance of the
Class M-4 Notes (after taking into account the payment of the Class M-4
Principal Payment Amount on such Payment Date), (vi) the Note Balance of the
Class M-5 Notes (after taking into account the payment of the Class M-5
Principal Payment Amount on such Payment Date), (vii) the Note Balance of the
Class M-6 Notes (after taking into account the payment of the Class M-6
Principal Payment Amount on such Payment Date), (viii) the Note Balance of the
Class M-7 Notes (after taking into account the payment of the Class M-7
Principal Payment Amount on such Payment Date), (ix) the Note Balance of the
Class M-8 Notes (after taking into account the payment of the Class M-8
Principal Payment Amount on such Payment Date) and (x) the Note Balance of the
Class B-1 Notes immediately prior to such Payment Date over (y) the lesser of
(A) the product of (i) 97.00% and (ii) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) and (B) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) minus the Overcollateralization Floor. "Class
B-2 Principal Payment Amount": The excess of (x) the sum of (i) the aggregate
Note Balance of the Class A Notes (after taking into account the payment of the
Senior Principal Payment Amount on such Payment Date), (ii) the Note Balance of
the Class M-1 Notes (after taking into account the payment of the Class M-1
Principal Payment Amount on such Payment Date), (iii) the Note Balance of the
Class M-2 Notes (after taking into account the payment of the Class M-2
Principal Payment Amount on such Payment Date), (iv) the Note Balance of the
Class M-3 Notes (after taking into account the payment of the Class M-3
Principal Payment Amount on such Payment Date), (v) the Note Balance of the
Class M-4 Notes (after taking into account the payment of the Class M-4
Principal Payment Amount on such Payment Date), (vi) the Note Balance of the
Class M-5 Notes (after taking into account the payment of the Class M-5
Principal Payment Amount on such Payment Date), (vii) the Note Balance of the
Class M-6 Notes (after taking into account the payment of the Class M-6
Principal Payment Amount on such Payment Date), (viii) the Note Balance of the
Class M-7 Notes (after taking into account the payment of the Class M-7
Principal Payment Amount on such Payment Date), (ix) the Note Balance of the
Class M-8 Notes (after taking into account the payment of the Class M-8
Principal Payment Amount on such Payment Date), (x) the Note Balance of the
Class B-1 Notes (after taking into account the payment of the Class B-1
Principal Payment Amount on such Payment Date) and (xi) the Note Balance of the
Class B-2 Notes immediately prior to such Payment Date over (y) the lesser of
(A) the product of (i) 98.00% and (ii) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
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Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) and (B) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) minus the Overcollateralization Floor.
"Class B-3 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date), (ii) the
Note Balance of the Class M-1 Notes (after taking into account the payment of
the Class M-1 Principal Payment Amount on such Payment Date), (iii) the Note
Balance of the Class M-2 Notes (after taking into account the payment of the
Class M-2 Principal Payment Amount on such Payment Date), (iv) the Note Balance
of the Class M-3 Notes (after taking into account the payment of the Class M-3
Principal Payment Amount on such Payment Date), (v) the Note Balance of the
Class M-4 Notes (after taking into account the payment of the Class M-4
Principal Payment Amount on such Payment Date), (vi) the Note Balance of the
Class M-5 Notes (after taking into account the payment of the Class M-5
Principal Payment Amount on such Payment Date), (vii) the Note Balance of the
Class M-6 Notes (after taking into account the payment of the Class M-6
Principal Payment Amount on such Payment Date), (viii) the Note Balance of the
Class M-7 Notes (after taking into account the payment of the Class M-7
Principal Payment Amount on such Payment Date), (ix) the Note Balance of the
Class M-8 Notes (after taking into account the payment of the Class M-8
Principal Payment Amount on such Payment Date), (x) the Note Balance of the
Class B-1 Notes (after taking into account the payment of the Class B-1
Principal Payment Amount on such Payment Date), (xi) the Note Balance of the
Class B-2 Notes (after taking into account the payment of the Class B-2
Principal Payment Amount on such Payment Date) and (xii) the Note Balance of the
Class B-3 Notes immediately prior to such Payment Date over (y) the lesser of
(A) the product of (i) 99.00% and (ii) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) and (B) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) minus the Overcollateralization Floor.
"Class C Certificate": A Residual Certificate, substantially in the
form of Exhibit A-1 to the Trust Agreement.
"Class C Interest": An uncertificated interest evidencing a Regular
Interest in REMIC 3 for purposes of the REMIC Provisions.
"Class G Certificate": A Residual Certificate, substantially in the
form of Exhibit A-2 to the Trust Agreement.
"Class M Note": Any Note designated as a "Class M Note" on the face
thereof, substantially in the form of Exhibit A-2 to the Indenture.
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"Class M-1 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date) and (ii)
the Note Balance of the Class M-1 Notes immediately prior to such Payment Date
over (y) the lesser of (A) the product of (i) 76.70% and (ii) the excess of (1)
aggregate Principal Balance of the Mortgage Loans as of the last day of the
related Collection Period over (2) the Certificate Principal Balance of the
Class G Certificates (after taking into account the payment of any principal to
the Class G Certificates on such Payment Date) and (B) the excess of (1)
aggregate Principal Balance of the Mortgage Loans as of the last day of the
related Collection Period over (2) the Certificate Principal Balance of the
Class G Certificates (after taking into account the payment of any principal to
the Class G Certificates on such Payment Date) minus the Overcollateralization
Floor.
"Class M-2 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date), (ii) the
Note Balance of the Class M-1 Notes (after taking into account the payment of
the Class M-1 Principal Payment Amount on such Payment Date) and (iii) the Note
Balance of the Class M-2 Notes immediately prior to such Payment Date over (y)
the lesser of (A) the product of (i) 79.30% and (ii) the excess of (1) aggregate
Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period over (2) the Certificate Principal Balance of the Class G
Certificates (after taking into account the payment of any principal to the
Class G Certificates on such Payment Date) and (B) the excess of (1) aggregate
Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period over (2) the Certificate Principal Balance of the Class G
Certificates (after taking into account the payment of any principal to the
Class G Certificates on such Payment Date) minus the Overcollateralization
Floor.
"Class M-3 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date), (ii) the
Note Balance of the Class M-1 Notes (after taking into account the payment of
the Class M-1 Principal Payment Amount on such Payment Date), (iii) the Note
Balance of the Class M-2 Notes (after taking into account the payment of the
Class M-2 Principal Payment Amount on such Payment Date) and (iv) the Note
Balance of the Class M-3 Notes immediately prior to such Payment Date over (y)
the lesser of (A) the product of (i) 83.40% and (ii) the aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period and (B) the aggregate Principal Balance of the Mortgage Loans as of the
last day of the related Collection Period minus the Overcollateralization Floor.
"Class M-4 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date), (ii) the
Note Balance of the Class M-1 Notes (after taking into account the payment of
the Class M-1 Principal Payment Amount on such Payment Date), (iii) the Note
Balance of the Class M-2 Notes (after taking into account the payment of the
Class M-2 Principal Payment Amount on such Payment Date), (iv) the Note Balance
of the Class M-3 Notes (after taking into account the payment of the Class M-3
Principal Payment Amount on such Payment Date) and (v) the Note Balance of the
Class M-4 Notes immediately prior to such Payment Date over (y) the lesser of
(A) the product of (i) 87.10% and (ii) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into
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account the payment of any principal to the Class G Certificates on such Payment
Date) and (B) the excess of (1) aggregate Principal Balance of the Mortgage
Loans as of the last day of the related Collection Period over (2) the
Certificate Principal Balance of the Class G Certificates (after taking into
account the payment of any principal to the Class G Certificates on such Payment
Date) minus the Overcollateralization Floor.
"Class M-5 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date), (ii) the
Note Balance of the Class M-1 Notes (after taking into account the payment of
the Class M-1 Principal Payment Amount on such Payment Date), (iii) the Note
Balance of the Class M-2 Notes (after taking into account the payment of the
Class M-2 Principal Payment Amount on such Payment Date), (iv) the Note Balance
of the Class M-3 Notes (after taking into account the payment of the Class M-3
Principal Payment Amount on such Payment Date), (v) the Note Balance of the
Class M-4 Notes (after taking into account the payment of the Class M-4
Principal Payment Amount on such Payment Date) and (vi) the Note Balance of the
Class M-5 Notes immediately prior to such Payment Date over (y) the lesser of
(A) the product of (i) 89.10% and (ii) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) and (B) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) minus the Overcollateralization Floor.
"Class M-6 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date), (ii) the
Note Balance of the Class M-1 Notes (after taking into account the payment of
the Class M-1 Principal Payment Amount on such Payment Date), (iii) the Note
Balance of the Class M-2 Notes (after taking into account the payment of the
Class M-2 Principal Payment Amount on such Payment Date), (iv) the Note Balance
of the Class M-3 Notes (after taking into account the payment of the Class M-3
Principal Payment Amount on such Payment Date), (v) the Note Balance of the
Class M-4 Notes (after taking into account the payment of the Class M-4
Principal Payment Amount on such Payment Date), (vi) the Note Balance of the
Class M-5 Notes (after taking into account the payment of the Class M-5
Principal Payment Amount on such Payment Date) and (vii) the Note Balance of the
Class M-6 Notes immediately prior to such Payment Date over (y) the lesser of
(A) the product of (i) 91.10% and (ii) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) and (B) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) minus the Overcollateralization Floor.
"Class M-7 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date), (ii) the
Note Balance of the Class M-1 Notes (after
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taking into account the payment of the Class M-1 Principal Payment Amount on
such Payment Date), (iii) the Note Balance of the Class M-2 Notes (after taking
into account the payment of the Class M-2 Principal Payment Amount on such
Payment Date), (iv) the Note Balance of the Class M-3 Notes (after taking into
account the payment of the Class M-3 Principal Payment Amount on such Payment
Date), (v) the Note Balance of the Class M-4 Notes (after taking into account
the payment of the Class M-4 Principal Payment Amount on such Payment Date),
(vi) the Note Balance of the Class M-5 Notes (after taking into account the
payment of the Class M-5 Principal Payment Amount on such Payment Date), (vii)
the Note Balance of the Class M-6 Notes (after taking into account the payment
of the Class M-6 Principal Payment Amount on such Payment Date) and (viii) the
Note Balance of the Class M-7 Notes immediately prior to such Payment Date over
(y) the lesser of (A) the product of (i) 93.40% and (ii) the excess of (1)
aggregate Principal Balance of the Mortgage Loans as of the last day of the
related Collection Period over (2) the Certificate Principal Balance of the
Class G Certificates (after taking into account the payment of any principal to
the Class G Certificates on such Payment Date) and (B) the excess of (1)
aggregate Principal Balance of the Mortgage Loans as of the last day of the
related Collection Period over (2) the Certificate Principal Balance of the
Class G Certificates (after taking into account the payment of any principal to
the Class G Certificates on such Payment Date) minus the Overcollateralization
Floor.
"Class M-8 Principal Payment Amount": The excess of (x) the sum of (i)
the aggregate Note Balance of the Class A Notes (after taking into account the
payment of the Senior Principal Payment Amount on such Payment Date), (ii) the
Note Balance of the Class M-1 Notes (after taking into account the payment of
the Class M-1 Principal Payment Amount on such Payment Date), (iii) the Note
Balance of the Class M-2 Notes (after taking into account the payment of the
Class M-2 Principal Payment Amount on such Payment Date), (iv) the Note Balance
of the Class M-3 Notes (after taking into account the payment of the Class M-3
Principal Payment Amount on such Payment Date), (v) the Note Balance of the
Class M-4 Notes (after taking into account the payment of the Class M-4
Principal Payment Amount on such Payment Date), (vi) the Note Balance of the
Class M-5 Notes (after taking into account the payment of the Class M-5
Principal Payment Amount on such Payment Date), (vii) the Note Balance of the
Class M-6 Notes (after taking into account the payment of the Class M-6
Principal Payment Amount on such Payment Date), (vii) the Note Balance of the
Class M-7 Notes (after taking into account the payment of the Class M-7
Principal Payment Amount on such Payment Date) and (viii) the Note Balance of
the Class M-8 Notes immediately prior to such Payment Date over (y) the lesser
of (A) the product of (i) 95.10% and (ii) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) and (B) the excess of (1) aggregate Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period over (2) the Certificate Principal Balance of the Class G Certificates
(after taking into account the payment of any principal to the Class G
Certificates on such Payment Date) minus the Overcollateralization Floor.
"Class R Certificate": A Class R Certificate, substantially in the form
of Exhibit A-3 to the Trust Agreement.
"Class R-X Certificate": A Class R-X Certificate, substantially in the
form of Exhibit A-4 to the Trust Agreement.
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"Class R-1 Interest": The uncertificated Residual Interest in REMIC 1.
"Class R-2 Interest": The uncertificated Residual Interest in REMIC 2.
"Class R-3 Interest": The uncertificated Residual Interest in REMIC 3.
"Class R-4 Interest": The uncertificated Residual Interest in REMIC 4.
"Clearing Agency": An organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act, as amended. As of the Closing Date,
the Clearing Agency shall be The Depository Trust Company.
"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": March 30, 2005.
"Closing Date Deposit": An amount equal to all collections received by
the Seller with respect to the Initial Mortgage Loans after the Initial Cut-off
Date to but not including the Closing Date (excluding interest collections due
on or prior to the Initial Cut-off Date) which amount shall equal $
18,021,427.23.
"Code": The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto.
"Collateral": As defined in the Granting Clause of the Indenture.
"Collection Account": A separate account established and maintained by
the Servicer pursuant to Section 4.02(b).
"Collection Period": With respect to any Payment Date and Mortgage
Loan, the calendar month immediately preceding such Payment Date.
"Combined Loan-to-Value Ratio" or "CLTV": With respect to any Mortgage
Loan as of any date, the percentage equivalent of a fraction, the numerator of
which is the sum of (A) the Credit Limit and (B) the outstanding Principal
Balance as of the date of application for the credit line (or as of any
subsequent date, if any, as of which such outstanding principal balance may be
determined in connection with an increase in the Credit Limit for such Mortgage
Loan) of any mortgage loan or mortgage loans that are senior in priority to such
Mortgage Loan and which are secured by the same Mortgaged Property, and the
denominator of which is (I) the Appraised Value of the related Mortgaged
Property as set forth in the related Mortgage File as of the date of the
appraisal or on such subsequent date, if any, or (II) in the case of a Mortgaged
Property purchased within one year of the date of execution of the related
Credit Line Agreement, the lesser of (x) the Appraised Value of such Mortgaged
Property as set forth in the related Mortgage File as of the date of the related
appraisal and (y) the purchase price of the related Mortgaged Property.
"Commission": The Securities and Exchange Commission.
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"Control": The meaning specified in Section 8-106 of the New York UCC.
"Corporate Trust Office": With respect to the Indenture Trustee, the
Paying Agent or the Certificate Registrar, the principal corporate trust office
of the Indenture Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Trust
Administration GC05G1. With respect to the Owner Trustee, the corporate trust
office of the Owner Trustee located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; or at such other address in the State
of Delaware as the Owner Trustee may designate by notice to the
Certificateholders, 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 Certificateholders).
"Corresponding Note": With respect to each REMIC 2 Regular Interest set
forth below, the corresponding Regular Certificate set forth in the table below:
REMIC 2 REGULAR INTEREST REGULAR NOTE
-------------------------- --------------
LTA1 Class A-1
LTA2 Class A-2
LTA3 Class A-3
LTA4 Class A-4
LTA5 Class A-5
LTM1 Class M-1
LTM2 Class M-2
LTM3 Class M-3
LTM4 Class M-4
LTM5 Class M-5
LTM6 Class M-6
LTM7 Class M-7
LTM8 Class M-8
LTB1 Class B-1
LTB2 Class B-2
LTB3 Class B-3
"Credit Enhancement Percentage": For any Payment Date, the percentage
equivalent of a fraction, the numerator of which is the sum of (i) the aggregate
Note Balance of the Mezzanine Certificates and the Class B Certificates and (ii)
the Certificate Principal Balance Class C Certificates, and the denominator of
which is the sum of (a) the aggregate Principal Balance of the Mortgage Loans
less the Certificate Principal Balance of the Class G Certificates and (b) any
remaining funds on deposit in the Pre-Funding Account (exclusive of any
investment income therein), calculated prior to taking into account payments of
principal on the Mortgage Loans and payment of the Principal Payment Amount to
the Holders of the Notes then entitled to payments of principal on such Payment
Date.
"Credit Limit": As to any Mortgage Loan, the maximum principal balance
permitted under the terms of the related Credit Line Agreement.
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"Credit Limit Utilization Rate": As to any Mortgage Loan, the
percentage equivalent of a fraction the numerator of which is the Principal
Balance of such Mortgage Loan as of the Cut-Off Date and the denominator of
which is the related Credit Limit.
"Credit Line Agreement": With respect to any Mortgage Loan, the related
home equity line of credit agreement or promissory note executed by the related
Mortgagor and any amendment or modification thereof.
"Credit Scores": With respect to the Mortgage Loans, statistical credit
scores obtained by mortgage lenders in connection with the loan application to
help assess a borrower's creditworthiness.
"Cumulative Realized Loss Percentage": With respect to any Payment
Date, the percentage equivalent of a fraction, the numerator of which is the
aggregate amount of Realized Losses incurred from the Cut-off Date to the last
day of the preceding calendar month and the denominator of which is the
aggregate Pool Balance of the Initial Mortgage Loans as of the Cut-off Date and
the Original Pre-Funded Amount.
"Custodian": Deutsche Bank National Trust Company.
"Cut-off Date": For (i) the Initial Mortgage Loans, the Initial Cut-off
Date, (ii) for any Subsequent Mortgage Loan, the related Subsequent Cut-off Date
and (iii) for any Qualifying Substitute Mortgage Loan, the Substitute Cut-Off
Date.
"Definitive Notes": As defined in Section 2.10 of the Indenture.
"Delaware Trust Statute": Chapter 38 of Title 12 of the Delaware Code,
12 Del.C. Section 3801 et seq., as the same may be amended from time to time.
"Deleted Mortgage Loan": A Mortgage Loan that is repurchased from the
Trust Estate pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
"Delinquency Percentage": For any Payment Date, the percentage obtained
by dividing (x) the aggregate Principal Balance of Mortgage Loans that are
Delinquent 60 days or more (including Mortgage Loans that are REO Properties, in
foreclosure or in bankruptcy that are also Delinquent 60 days or more), as of
the last day of the previous Collection Period by (y) the aggregate Principal
Balance of the Mortgage Loans, in each case, as of the last day of the previous
Collection Period.
"Delinquent": A Mortgage Loan is "delinquent" if any payment due
thereon is not made by the close of business on the day such payment is
scheduled to be due. A Mortgage 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.
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"Deposit Date": With respect to each Payment Date, three Business Days
immediately preceding such Payment Date.
"Depositor": Financial Asset Securities Corp., a Delaware corporation
having its principal place of business in New York, or its successors in
interest.
"Depository Institution": Any depository institution or trust company,
including the Indenture Trustee, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short term unsecured debt obligations that
are rated in the highest rating category by each Rating Agency, or is otherwise
acceptable to each Rating Agency.
"Determination Date": With respect to any Payment Date, the 18th day of
the month, or if such day is not a Business Day, the immediately preceding
Business Day or such earlier day as shall be designated by the Indenture
Trustee.
"Disqualified Organization": A "disqualified organization" under
Section 860E of the Code, which as of the Closing Date is any of: (i) the United
States, any state or political subdivision thereof, any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (ii) any organization (other than a cooperative described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
unless such organization is subject to the tax imposed by Section 511 of the
Code, (iii) any organization described in Section 1381(a)(2)(C) of the Code or
(iv) an "electing large partnership" within the meaning of Section 775 of the
Code. A corporation will not be treated as an instrumentality of the United
States or of any state or political subdivision thereof, if all of its
activities are subject to tax and, a majority of its board of directors is not
selected by a governmental unit. The term "United States", "state" and
"international organizations" shall have the meanings set forth in Section 7701
of the Code.
"Draw": With respect to any Mortgage Loan, an additional borrowing by
the related Mortgagor subsequent to the Cut-Off Date in accordance with the
related Credit Line Agreement.
"Draw Period": With respect to any Mortgage Loan, the period of time
specified in the related Credit Line Agreement whereby a Mortgagor may make a
Draw under the related Credit Line Agreement, not to exceed five or fifteen
years (as applicable) unless extended pursuant to such Credit Line Agreement and
this Agreement.
"Due Date": With respect to any Mortgage Loan, the date on which
principal and/or interest is due under the related Credit Line Agreement.
"Eligible Account": Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable to
the Rating Agencies or (ii) an account or accounts the deposits in which are
insured by the FDIC to the limits established by such corporation, provided that
any such deposits not so insured shall be maintained in an account at a
depository institution or trust company whose commercial paper or other short
term debt obligations (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the commercial
paper or other short term debt or
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deposit obligations of such holding company or depository institution, as the
case may be) have been rated by each Rating Agency in its highest short-term
rating category, or (iii) a segregated trust account or accounts maintained with
the Indenture Trustee or any other federal or state chartered depository
institution or trust company, acting in its fiduciary capacity, in a manner
acceptable to the Indenture Trustee and the Rating Agencies. Eligible Accounts
may bear interest.
"Eligible Investments": Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the
United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith
and credit of the United States of America ("Direct Obligations");
(ii) federal funds, or demand and time deposits in,
certificates of deposits of, or bankers' acceptances issued by, any
depository institution or trust company (including U.S. subsidiaries of
foreign depositories and the Indenture Trustee or any agent of the
Indenture Trustee, acting in its respective commercial capacity)
incorporated or organized under the laws of the United States of
America or any state thereof and subject to supervision and examination
by federal or state banking authorities, so long as at the time of
investment or the contractual commitment providing for such investment
the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each Rating
Agency in its highest short-term rating category or one of its two
highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by GNMA, ▇▇▇▇▇▇ ▇▇▇ or FHLMC with
any registered broker/dealer subject to Securities Investors'
Protection Corporation jurisdiction or any commercial bank insured by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which have a credit rating from
each Rating Agency, at the time of investment or the contractual
commitment providing for such investment, at least equal to one of the
two highest long-term credit rating categories of each Rating Agency;
PROVIDED, HOWEVER, that securities issued by any particular corporation
will not be Eligible Investments to the extent that investment therein
will cause the then outstanding principal amount of securities issued
by such corporation and held as part of the Trust Estate to exceed 20%
of the sum of the Pool Balance and the aggregate principal amount of
all Eligible Investments in the Payment Account; PROVIDED, FURTHER,
that such securities will not be Eligible Investments if they are
published as being under review with negative implications from any
Rating Agency;
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(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than 180 days after the date of
issuance thereof) rated by each Rating Agency in its highest short-term
rating category;
(vi) a Qualified GIC;
(vii) certificates or receipts representing direct
ownership interests in future interest or principal payments on
obligations of the United States of America or its agencies or
instrumentalities (which obligations are backed by the full faith and
credit of the United States of America) held by a custodian in
safekeeping on behalf of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or
time deposit or obligation, or interest-bearing or other security or
investment (including those managed or advised by the Indenture Trustee
or any Affiliate thereof), (A) rated in the highest rating category by
each Rating Agency or (B) that would not adversely affect the then
current rating assigned by each Rating Agency of any of the Notes. Such
investments in this subsection (viii) may include money market mutual
funds or common Trust Estates, including any fund for which Deutsche
Bank National trust Company (the "Bank") in its capacity other than as
Indenture Trustee, the Servicer or an affiliate thereof serves as an
investment advisor, administrator, shareholder servicing agent, and/or
custodian or subcustodian, notwithstanding that (x) the Bank, the
Indenture Trustee, the Servicer or any affiliate thereof charges and
collects fees and expenses from such funds for services rendered, (y)
the Bank, the Indenture Trustee, the Servicer or any affiliate thereof
charges and collects fees and expenses for services rendered pursuant
to this Agreement, and (z) services performed for such funds and
pursuant to this Agreement may converge at any time;
PROVIDED, HOWEVER, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, provided that any such
investment will be a "permitted investment" within the meaning of Section
860G(a)(5) of the Code.
"Entitlement Order": The meaning specified in Section 8-102(a)(8) of
the New York UCC (I.E., generally, orders directing the transfer or redemption
of any Financial Asset).
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Errors and Omission Insurance Policy": Any errors or omission
insurance policy required to be obtained by each Servicer satisfying the
requirements of the related Servicing Agreement.
"Escrow Account": Any account with respect to tax and insurance escrow
payments established and maintained by each Servicer pursuant to the related
Servicing Agreement.
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"Event of Default": With respect to the Indenture, any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the failure by the Issuer to pay, by the Final Stated
Maturity Date, all interest accrued on the Notes and the Note Balance
of the Notes; or
(ii) there occurs a default in the observance or
performance of any covenant or agreement of the Issuer made in the
Indenture, or any representation or warranty of the Issuer made in the
Indenture 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 representation 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 Holders of at least 25% of the
aggregate Note Balance of the Outstanding 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
(iii) there occurs 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 Trust Estate 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 Trust Estate,
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
(iv) there occurs 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 assets of the Trust Estate,
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.
"Event of Servicer Termination": Any one of the conditions or
circumstances enumerated in Section 7.01(i)-(iv).
"Excess Interest": As defined in Section 5.06(a).
"Excess Losses": As defined in Section 5.06(a).
"Excess Overcollateralized Amount": With respect to the Class A Notes,
the Mezzanine Notes and the Class B Notes and any Payment Date, the excess, if
any, of (i) the
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Overcollateralized Amount for such Payment Date, assuming that 100% of the
Principal Remittance Amount is applied as a principal payment on such Payment
Date over (ii) the Overcollateralization Target Amount for such Payment Date.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Executive Officer": With respect to any corporation or limited
liability company, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Manager, Executive Vice President, any Vice
President, the Secretary or the Treasurer of such entity; and with respect to
any partnership, any general partner thereof.
"Expenses": The meaning specified in Section 7.02 of the Trust
Agreement.
"Extra Principal Payment Amount": With respect to any Payment Date, the
lesser of (x) the Monthly Interest Payable Amount payable on the Class C
Certificates on such Payment Date as reduced by Realized Losses allocated
thereto with respect to such Payment Date pursuant to Section 5.06 and (y) the
Overcollateralization Deficiency Amount for such Payment Date.
"▇▇▇▇▇▇ ▇▇▇": Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC" or "▇▇▇▇▇▇▇ Mac": The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created and existing under Title
III of the Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
"Fidelity Bond": Any fidelity bond required to be obtained by the
Servicer or any Servicer satisfying the requirements of Section 4.13.
"Final Certification": The certification, in the form attached hereto
as Exhibit A-3.
"Final Stated Maturity Date": The Payment Date in September 2034
whereby the Holders of each Class of Notes shall be entitled to receive a
payment of principal in an amount equal to the Note Balance of such Class of
Notes and any accrued and unpaid interest thereon.
"Financial Asset": The meaning specified in Section 8-102(a)(9) of the
New York UCC.
"Fitch": Fitch, Inc. or any successor in interest.
"Formula Rate": For any Payment Date and the Class A Notes, the
Mezzanine Notes and the Class B Notes, the lesser of (i) the Base Rate and (ii)
the Maximum Cap Rate.
"GAAP": Generally accepted accounting principles as in effect in the
United States of America, consistently applied.
"Grant": Mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a security
interest in and a right of set off
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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.
"GreenPoint": GreenPoint Mortgage Funding, Inc., a New York
Corporation, or any successor thereto.
"GNMA": The Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
"Highest Priority": As of any date of determination, the Class A-5
Notes, any Class of Mezzanine Notes or Class B Notes then outstanding with a
Note Balance greater than zero, with the highest priority for payments pursuant
to Section 5.03, in the following order: Class A-5, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class B-1, Class B-2
and Class B-3 Notes.
"Holder," "Noteholder" or "Securityholder": The registered holder of
any Note or Residual Certificates as recorded on the books of the Note Registrar
or the Certificate Registrar except that, solely for the purposes of taking any
action or giving any consent pursuant to this Agreement, any Note or Residual
Certificates registered in the name of the Depositor, the Servicer or the
Indenture Trustee or any Affiliate thereof shall be deemed not to be outstanding
in determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Indenture
Trustee shall be protected in relying upon any such consent, only Notes and
Residual Certificates which a Responsible Officer of the Indenture Trustee
actually knows to be so held shall be disregarded. The Indenture Trustee may
request and conclusively rely on certifications by the Depositor in determining
whether any Notes or the Residual Certificates are registered to an Affiliate of
the Depositor.
"HUD": The United States Department of Housing and Urban Development,
or any successor thereto.
"Indenture": The Indenture dated as of March 30, 2005, between the
Issuer and the Indenture Trustee, as such may be amended or supplemented from
time to time.
"Indenture Trustee": Deutsche Bank National Trust Company, a national
banking association, not in its individual capacity but solely as Indenture
Trustee, or any successor in interest.
"Indenture Trustee Issuer Secured Obligations": All amounts and
obligations which the Issuer may at any time owe to the Indenture Trustee for
the benefit of the Noteholders under the Indenture or the Notes.
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"Independent": When used with respect to any specified Person, that
such Person (a) is in fact independent of the Issuer, any other obligor on the
Notes, the Seller, the Depositor 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 Seller,
the Depositor or any Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, the Seller, the Depositor 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 12.01, made by an
Independent appraiser or other expert appointed by an Issuer Order, and such
opinion or certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
"Index": The index specified in the related Credit Line Agreement for
calculation of the Loan Rate thereof.
"Initial Certification": The certification in the form attached hereto
as Exhibit A-1.
"Initial Cut-off Date": March 1, 2005.
"Initial Holder": With respect to the Class C Certificates, Greenwich
Capital Financial Products, Inc., or any successor in interest. With respect to
the Class G Certificates, GreenPoint Mortgage Funding, Inc., or any successor in
interest. With respect to the Class R and Class R-X Certificates, Greenwich
Capital Markets, Inc., or any successor in interest.
"Initial Mortgage Loans": The Mortgage Loans transferred to the Trust
on the Closing Date.
"Initial Note Balance": With respect to the Notes, the amounts set
forth below:
Class A-1 $ 462,000,000
Class A-2 $ 112,000,000
Class A-3 $ 195,000,000
Class A-4 $ 73,664,000
Class A-5 $ 23,940,000
Class M-1 $ 73,414,000
Class M-2 $ 13,832,000
Class M-3 $ 21,811,000
Class M-4 $ 19,683,000
Class M-5 $ 10,640,000
Class M-6 $ 10,640,000
Class M-7 $ 12,236,000
Class M-8 $ 9,044,000
Class B-1 $ 10,108,000
Class B-2 $ 5,320,000
Class B-3 $ 5,320,000
"Initial Pool Balance": $ 734,644,145.70.
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"Insurance Proceeds": Proceeds paid by any insurer pursuant to any
insurance policy covering a Mortgage Loan, net of any component thereof applied,
pursuant to the related Servicing Agreement, to the restoration of the related
Mortgaged Property or released to the related Mortgagor in accordance with the
related Servicing Agreement.
"Interest Determination Date": With respect to the Class A Notes, the
Mezzanine Notes and the Class B Notes and each Accrual Period, the second LIBOR
Business Day preceding the commencement of such Accrual Period.
"Interest Remittance Amount": With respect to any Payment Date, that
portion of the Available Funds for such Payment Date attributable to interest
received with respect to the Mortgage Loans.
"Interim Certification": The certification, in the form attached hereto
as Exhibit A-2.
"Intervening Assignments": The original intervening assignments of the
Mortgage, notices of transfer or equivalent instrument.
"Issuer": GreenPoint Mortgage Funding Trust 2005-HE1, a Delaware
statutory trust, or any successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the Notes.
"Issuer Order" or "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.
"LIBOR": With respect to each Accrual Period, the rate determined by
the Indenture Trustee on the related Interest Determination Date on the basis of
the London interbank offered rate for one-month United States dollar deposits,
as such rate appears on the Telerate Page 3750, as of 11:00 a.m. (London time)
on such Interest Determination Date. If such rate does not appear on Telerate
Page 3750, the rate for such Interest Determination Date will be determined on
the basis of the offered rates of the Reference Banks for one-month United
States dollar deposits, as of 11:00 a.m. (London time) on such Interest
Determination Date. The Indenture Trustee will request the principal London
office of each of the Reference Banks to provide a quotation of its rate. On
such Interest Determination Date, LIBOR for the related Accrual Period will be
established by the Indenture Trustee as follows:
(i) If on such Interest Determination Date two or more
Reference Banks provide such offered quotations, LIBOR for the related
Accrual Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16 of
1%); and
(ii) If on such Interest Determination Date fewer than two
Reference Banks provide such offered quotations, LIBOR for the related
Accrual Period shall be the higher of (i) LIBOR as determined on the
previous Interest Determination Date and (ii) the Reserve Interest
Rate.
"LIBOR Business Day": Any day on which banks in London, England are
open and conducting transactions in foreign currency and exchange.
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"Liquidated Mortgage Loan": Any defaulted Mortgage Loan as to which the
Servicer or the applicable Servicer has determined that all amounts that it
expects to recover from or on account of such Mortgage Loan have been recovered.
"Liquidation Expenses": Expenses that are incurred by the Servicer or a
Servicer in connection with the liquidation of any defaulted Mortgage Loan and
are not recoverable under the applicable primary mortgage insurance policy, if
any, including, without limitation, foreclosure and rehabilitation expenses,
legal expenses and unreimbursed amounts, if any, expended pursuant to Sections
4.06.
"Liquidation Loss Amounts": With respect to any Payment Date and
Mortgage Loan that became a Liquidated Mortgage Loan during the related
Collection Period, the unrecovered portion of the related Principal Balance
thereof at the end of such Collection Period, after giving effect to the Net
Liquidation Proceeds applied in reduction of such Principal Balance.
"Liquidation Proceeds": Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale, payment in full,
discounted payoff or otherwise, or the sale of the related Mortgaged Property if
such Mortgaged Property is acquired in satisfaction of such Mortgage Loan,
including any amounts remaining in the related Escrow Account.
"Loan Purchase Price": With respect to any Mortgage Loan purchased from
the Issuer pursuant to the Sale and Servicing Agreement, an amount equal to the
sum of (i) the product of (A) 100% and (B) the Principal Balance of such
Mortgage Loan as of the date of purchase, (ii) one month's interest on the
outstanding Principal Balance of such Mortgage Loan as of the beginning of the
preceding Collection Period computed at the related Loan Rate less, if such
Mortgage Loan is being purchased from the Issuer by the Servicer, the Servicing
Fee Rate, (iii) any costs and damages incurred by the Issuer in connection with
any violation of any predatory or abusive lending law in connection with such
Mortgage Loan and (iv) without duplication, the aggregate amount of all
delinquent interest, all advances made by the related Servicer and not
subsequently recovered from such Mortgage Loan.
"Loan Rate": With respect to any Mortgage Loan and as of any day, the
per annum rate of interest applicable under the related Credit Line Agreement to
the calculation of interest for such day on the Principal Balance of such
Mortgage Loan.
"Loan-to-Value Ratio" or "LTV": With respect to any Mortgage Loan as of
any date, the percentage equivalent of a fraction, the numerator of which is the
(A) the Credit Limit and the denominator of which is (I) the Appraised Value of
the related Mortgaged Property as set forth in the related Mortgage File as of
the date of the appraisal or on such subsequent date, if any, or (II) in the
case of a Mortgaged Property purchased within one year of the date of execution
of the related Credit Line Agreement, the lesser of (x) the Appraised Value of
such Mortgaged Property as set forth in the related Mortgage File as of the date
of the related appraisal and (y) the purchase price of the related Mortgaged
Property.
"Majority Securityholders": The holder or holders of in excess of 50%
of the Note Balance of the Notes, and following the reduction of the aggregate
Note Balance of the Notes to zero, the holders of the Residual Certificates
(voting collectively as a single class).
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"Margin": With respect to each Mortgage Loan, the fixed percentage
amount set forth in the related Credit Line Agreement which amount is added to
the Prime Rate in accordance with the terms of such Credit Line Agreement to
determine the Loan Rate for such Mortgage Loan, subject to any maximum rate of
interest.
"Marker Rate": With respect to the Class C Interest and any Payment
Date, a per annum rate equal to two (2) times the weighted average of the
Uncertificated REMIC 2 Remittance Rates for REMIC 2 Regular Interest LTA1A,
REMIC 2 Regular Interest LTA1B, REMIC 2 Regular Interest LTA2, REMIC 2 Regular
Interest LTA3, REMIC 2 Regular Interest LTA4, REMIC 2 Regular Interest LTA5,
REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular
Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5,
REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular
Interest LTM8, REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2,
REMIC 2 Regular Interest LTB3 and REMIC 2 Regular Interest LTZZ, with the rate
on each such REMIC 2 Regular Interest (other than REMIC 2 Regular Interest LTZZ)
subject to a cap equal to the lesser of (i) LIBOR plus the Note Margin for the
Corresponding Note and (ii) the Net WAC Rate for the purpose of this
calculation; and with the rate on REMIC 2 Regular Interest LTZZ subject to a cap
of zero for the purpose of this calculation; provided, however, that for this
purpose, calculations of the Uncertificated REMIC 2 Remittance Rate and the
related caps with respect to each such REMIC 2 Regular Interest (other than
REMIC 2 Regular Interest LTZZ) shall be multiplied by a fraction, the numerator
of which is the actual number of days elapsed in the related Accrual Period and
the denominator of which is 30.
"Material Defect": As defined in Section 2.02(c).
"Maximum Cap Rate": For any Payment Date and the Class A Notes, the
Mezzanine Notes and the Class B Notes, a per annum rate equal to the product of
(x) the weighted average of the Adjusted Net Maximum Mortgage Rates of the
Mortgage Loans, weighted on the basis of the outstanding Principal Balances of
the Mortgage Loans as of the first day of the month preceding the month of such
Payment Date and (y) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days elapsed in the related Accrual
Period.
"Maximum Uncertificated Accrued Interest Deferral Amount": With respect
to any Payment Date, the excess of (a) accrued interest at the Uncertificated
REMIC 2 Remittance Rate applicable to REMIC 2 Regular Interest LTZZ for such
Payment Date on a balance equal to the Uncertificated Principal Balance of REMIC
2 Regular Interest LTZZ minus the REMIC 2 Overcollateralization Amount, in each
case for such Payment Date, over (b) the sum of the Uncertificated Accrued
Interest on REMIC 2 Regular Interest LTA1, REMIC 2 Regular Interest LTA2, REMIC
2 Regular Interest LTA3, REMIC 2 Regular Interest LTA4, REMIC 2 Regular Interest
LTA5, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest
LTB2 and REMIC 2 Regular Interest LTB3 with the rate on each such REMIC 2
Regular Interest subject to a cap equal to the lesser of (i) LIBOR plus the
related Note Margin for the Corresponding Note and (ii) the Net WAC Rate for the
purpose of this calculation; provided, however, that for this purpose,
calculations of the Uncertificated REMIC 2 Pass-Through Rate and the related
caps with respect to each such REMIC 2 Regular Interest shall be multiplied by a
fraction, the numerator of which
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is the actual number of days elapsed in the related Accrual Period and the
denominator of which is 30.
"MERS": Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
"MERS Mortgage Loan": Any Mortgage Loan as to which the related
Mortgage, or an Assignment of Mortgage, has been or will be recorded in the name
of MERS, as nominee for the holder from time to time of the Credit Line
Agreement.
"Mezzanine Note": Any Class M Note.
"Minimum Monthly Payment": With respect to any Mortgage Loan and any
month, the minimum amount required to be paid by the related Mortgagor in that
month.
"Monthly Interest Payable Amount": With respect to the Class A Notes,
the Mezzanine Notes, the Class B Notes and the Class C Certificates and any
Payment Date, the amount of interest accrued during the related Accrual Period
at the related Note Rate on the Note Balance (or Notional Amount in the case of
the Class C Certificates) of such Class immediately prior to such Payment Date,
in each case, reduced by any Relief Act Interest Shortfalls allocated to such
Note or Certificate, as applicable.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., or any successor in
interest.
"Mortgage": A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Credit Line Agreement, together
with improvements thereto.
"Mortgage File": The mortgage documents listed in Section 2.01(d)
pertaining to a particular Mortgage Loan required to be delivered to the
Indenture Trustee pursuant to this Agreement.
"Mortgage Loan": A Mortgage and the related Credit Line Agreement or
other evidences of indebtedness secured by each such Mortgage conveyed,
transferred, sold, assigned to or deposited with the Indenture Trustee for the
benefit of Securityholders pursuant to Section 2.01 or Section 3.04, including
without limitation, each Mortgage Loan listed on the Mortgage Loan Schedule, as
amended from time to time.
"Mortgage Loan Schedule": The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended from
time to time to reflect the addition of Mortgage Loans (including the addition
of any Qualifying Substitute Mortgage Loans) to, or the deletion of Mortgage
Loans from, the Trust Estate. Such schedule shall set forth, among other things,
the following information with respect to each Mortgage Loan: (i) the Mortgage
Loan identifying number; (ii) the original principal amount of the Mortgage
Loan; (iii) the Loan Rate at origination; (iv) the monthly payment of principal
and interest at origination; (v) the Custodian with respect to the Mortgage File
related to such Mortgage Loan; (vi) the Principal Balance as of the Cut-off
Date, (vii) the Credit Limit, (viii) the Gross Margin, (ix) the maximum Loan
Rate, (x) the current Loan Rate, (xi) the Combined Loan-to-Value Ratio, (xvi) a
code specifying the property type, (xii) a code specifying documentation type,
(xiii) a code specifying lien position and (xiv) the Draw Period. The Depositor
shall be responsible for
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providing the Indenture Trustee and the Servicer with all amendments to the
Mortgage Loan Schedule.
"Mortgaged Property": The fee simple interest in real property,
together with improvements thereto including any exterior improvements to be
completed within 120 days of disbursement of the related Mortgage Loan proceeds.
"Mortgagor": The obligor on a Credit Line Agreement.
"Net Liquidation Proceeds": With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds received and retained in connection with
the liquidation of such Mortgage Loan net of (i) unreimbursed expenses, (ii) any
unreimbursed Servicing Advances, and (iii) in the case of a defaulted Second
Lien Mortgage Loan, the amount necessary to repay the related senior lien
mortgage loan.
"Net Monthly Excess Cashflow": With respect to each Payment Date, the
excess of (x) Available Funds for such Payment Date over (y) the sum for such
Payment Date of (A) the Monthly Interest Payable Amounts for the Class A Notes,
the Mezzanine Notes and the Class B Notes, (B) the Unpaid Interest Shortfall
Amounts for the Class A Notes and (C) the Principal Remittance Amount.
"Net Principal Collections": With respect to the Mortgage Loans and any
Collection Period, the excess of (x) the Principal Remittance Amount for such
Collection Period over (y) the sum of (A) the aggregate amount of all Additional
Balances arising during such Collection Period plus (B) the Additional Balance
Advance Amount outstanding as of the opening of business on the related Payment
Date; PROVIDED, HOWEVER, that in no event will Net Principal Collections be less
than zero with respect to any Payment Date.
"Net Proceeds from the Notes": The proceeds received by the Trust from
time to time from the issuance and sale of its Notes, less the costs and
expenses incurred in connection with the issuance and sale of such Notes.
"Net WAC Rate": For any Payment Date and the Class A Notes, the
Mezzanine Notes and the Class B Notes, a per annum rate equal to the product of
(a) a fraction, expressed as a percentage, the numerator of which is the amount
of interest which accrued on the Mortgage Loans in the prior calendar month
minus the aggregate Servicing Fee accrued for the Mortgage Loans and the
denominator of which is the sum of (i) the aggregate Principal Balance of the
Mortgage Loans as of the first day of the calendar month preceding the month of
such Payment Date (or as of the Cut-off Date with respect to the first Payment
Date) and (ii) any amounts on deposit in the Pre-Funding Account and (b) a
fraction whose numerator is 360 and whose denominator is the actual number of
days in the related Accrual Period. For federal income tax purposes, the
economic equivalent of such rate shall be expressed as the weighted average of
the REMIC 2 Pass-Through Rates on the REMIC 2 Regular Interests, weighted on the
basis of the Uncertificated Principal Balance of each such REMIC 2 Regular
Interest.
"Net WAC Rate Carryover Amount": With respect to the Class A Notes, the
Mezzanine Notes and the Class B Notes and any Payment Date, the sum of (A) the
positive excess of (i) the amount of interest accrued on such Class of Notes on
such Payment Date calculated at the related Formula Rate, over (ii) the amount
of interest accrued on such Class of Notes at the Net WAC
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Rate for such Payment Date and (B) the Net WAC Rate Carryover Amount for the
previous Payment Date not previously paid, together with interest thereon at a
rate equal to the related Formula Rate for such Class of Notes for such Payment
Date and for such Accrual Period.
"Net WAC Rate Carryover Reserve Account": The account established and
maintained pursuant to Section 5.04.
"New York UCC": The Uniform Commercial Code as in effect in the State
of New York.
"Non-MERS Mortgage Loan": Any Mortgage Loan other than a MERS Mortgage
Loan.
"Non-U.S. Person": Any person other than a "United States person" as
defined in Section 7701(a)(30) of the Code.
"Note Balance": With respect to any Class of Notes immediately prior to
any Payment Date, an amount equal to the Initial Note Balance thereof plus any
Subsequent Recoveries added to the Note Balance of such Note pursuant to Section
5.03 reduced by the sum of all amounts actually paid in respect of principal of
such Class and, in the case of a Class A-5 Note, Mezzanine Note or Class B Note,
Realized Losses allocated thereto on all prior Payment Dates.
"Note Depository Agreement": The agreement dated March 30, 2005, among
the Issuer, the Indenture Trustee and The Depository Trust Company, as the
initial Clearing Agency, relating to the Notes.
"Note Margin": With respect to the Class A Notes, the Mezzanine Notes
and the Class B Notes on each Payment Date, the following percentage:
Margin
---------------------
Class (1) (2)
------------- ------- --------
A-1A 0.060% 0.120%
A-1B 0.055% 0.110%
A-2 0.100% 0.200%
A-3 0.170% 0.340%
A-4 0.240% 0.480%
A-5 0.300% 0.600%
M-1 0.400% 0.600%
M-2 0.450% 0.675%
M-3 0.600% 0.900%
M-4 0.680% 1.020%
M-5 0.730% 1.095%
M-6 1.200% 1.800%
M-7 1.800% 2.700%
M-8 3.250% 4.875%
B-1 3.250% 4.875%
B-2 3.250% 4.875%
B-3 3.250% 4.875%
----------
(1) On or prior to the Optional Redemption Date.
(2) After the Optional Redemption Date.
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"Note Owner" or "Owner": With respect to a Book Entry Note, the Person
that 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), and with respect to a Definitive Note, the Person that is the
registered owner of such Note as reflected in the Note Register.
"Note Paying Agent": The Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.11 of the Indenture and is authorized by the Issuer to make payments to and
distributions from the Payment Account, including payment of principal of or
interest on the Notes on behalf of the Issuer.
"Note Rate": With respect to the Class A Notes, the Mezzanine Notes and
the Class B Notes and any Payment Date, the lesser of (x) the related Formula
Rate for such Payment Date and (y) the Net WAC Rate for such Payment Date. With
respect to the Class C Interest and any Payment Date, a per annum rate equal to
the percentage equivalent of a fraction, the numerator of which is (x) the
interest on the Uncertificated Principal Balance of each REMIC 2 Regular
Interest listed in clause (y) below at a rate equal to the related
Uncertificated REMIC 2 Pass-Through Rate minus the Marker Rate and the
denominator of which is (y) the aggregate Uncertificated Principal Balance of
REMIC 2 Regular Interests ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, ▇▇▇▇, LTM1, LTM2, LTM3,
LTM4, LTM5, LTM6, LTM7, LTM8, LTB1, LTB2, LTB3, and LTZZ.
With respect to the Class C Certificates, 100% of the interest
distributable to the Class C Interest, expressed as a per annum rate.
"Note Register" and "Note Registrar": The respective meanings specified
in Section 2.04 of the Indenture.
"Notes": The Class A Notes, the Mezzanine Notes and the Class B Notes,
collectively.
"Notional Amount": Immediately prior to any Payment Date with respect
to the Class C Interest, the aggregate Uncertificated Principal Balance of the
REMIC 2 Regular Interests.
"Offering Document": The private placement memorandum or other offering
document dated March 30, 2005 relating to the Class B Notes.
"Officer": Those officers of the Trust referred to in Article XI of the
Trust Agreement.
"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 12.01 of the Indenture, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference in
this Indenture to an Officer's Certificate shall be to an Officer's Certificate
of any Authorized Officer of the Issuer.
"Operative Agreements": The Trust Agreement, the Certificate of Trust,
this Agreement, the Indenture, the Administration Agreement, the Custodial
Agreements, the Servicing Agreements, the Residual Certificates, the Notes and
each other document contemplated by any
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of the foregoing to which the Depositor, the Owner Trustee, the Administrator,
the Indenture Trustee or the Issuer is a party.
"Opinion of Counsel": A written opinion of counsel, reasonably
acceptable in form and substance to the Indenture Trustee, who may be in-house
or outside counsel to the Depositor, the Servicer, the Indenture Trustee or the
Issuer but which must be Independent outside counsel with respect to any such
opinion of counsel concerning federal income tax (including, without limitation,
REMIC) matters.
"Optional Redemption Date": Any Payment Date occurring on or after the
end of a Collection Period on which the outstanding Pool Balance on such Payment
Date is less than or equal to ten percent (10%) of the excess of (i) the sum of
(x) the Original Pool Balance and (y) the Original Pre-Funded Amount over (ii)
the outstanding Certificate Principal Balance of the Class G Certificates.
"Optional Redemption Holder": Either the holder of the majority
interest in the Class C Certificates or the Servicer, as applicable, as set
forth in Section 8.02 of the Sale and Servicing Agreement.
"Optional Redemption Price": An amount equal to the greater of: (i) the
sum of (a) the aggregate outstanding Principal Balance of each Mortgage Loan,
plus accrued interest at the applicable Loan Rate, (b) any costs and damages
incurred by the Trust in connection with a violation of any federal, state or
local predatory or abusive lending law, (c) the fair market value of all other
property being purchased and (d) any unreimbursed Servicing Advances and any
outstanding fees due to the Servicers and the Owner Trustee and (ii) the sum of
(a) the Note Balance of the Class A Notes, the Mezzanine Notes and the Class B
Notes with interest due thereon (including Unpaid Interest Shortfall Amounts),
and (b) any outstanding Servicing Advances and fees due to the Servicer and the
Owner Trustee and any outstanding amounts owed to the Indenture Trustee.
"Original Loan-to-Value Ratio": With respect to any Mortgage Loan, the
ratio of the principal balance of such Mortgage Loan at origination, or such
other date as is specified, to the Original Value of the related Mortgaged
Property.
"Original Pre-Funded Amount": $329,327,300.97.
"Original Value": The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price paid for the Mortgaged Property by the Mortgagor at
the time the related Mortgage Loan was originated.
"Originator": GreenPoint Mortgage Funding, Inc..
"Outstanding": As of the date of determination, all Notes theretofore
authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
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(ii) Notes 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 Holders 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); and
(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, HOWEVER, that in determining whether the Holders of the requisite
Outstanding Balance of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Operative Agreement,
Notes owned by the Issuer, any other obligor upon the Notes, the Depositor, the
Owner Trustee, the Indenture Trustee, the Servicer, the Administrator 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 a Responsible Officer of the
Indenture Trustee actually knows to be so owned shall be so disregarded (unless
such action requires the consent, waiver, request or demand of 100% of the
Outstanding Balance and 100% of the Outstanding Balance is registered in the
name of one or more of the foregoing entities). 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 Owner Trustee, the Indenture Trustee, the
Servicer, the Administrator or any Affiliate of any of the foregoing Persons.
"Outstanding Balance": With respect to any Class of Notes or all of the
Notes, as applicable, and any date of determination, the Note Balance or
aggregate Note Balance that is Outstanding as of such date.
"Overcollateralization Deficiency Amount": With respect to any Payment
Date, the amount, if any, by which the Overcollateralization Target Amount
exceeds the Overcollateralized Amount on such Payment Date (assuming that 100%
of the Principal Remittance Amount is applied as a principal payment on such
Payment Date).
"Overcollateralization Floor": $5,319,857.23.
"Overcollateralization Target Amount": With respect to any Payment
Date, 0.50% of the sum of (i) the aggregate Principal Balance of the Mortgage
Loans as of the Cut-off Date and (ii) the Original Pre-Funded Amount.
Notwithstanding the foregoing, on and after any Payment Date following the
reduction of the aggregate Note Balance of the Class A Notes, the Mezzanine
Notes and the Class B Notes to zero, the Overcollateralization Target Amount
shall be zero.
"Overcollateralized Amount": For any Payment Date, the amount equal to
(i) the excess of (1) the sum of (x) the aggregate Principal Balance of the
Mortgage Loans as of the last day of the related Collection Period and (y) any
funds on deposit in the Pre-Funding Account (exclusive of any investment income
therein) over (2) the Certificate Principal Balance of the Class G Certificates
(after giving effect to payments to be made on such Payment Date) minus (ii) the
A-28
aggregate Note Balance of the Class A Notes, the Mezzanine Notes and the Class B
Notes as of such Payment Date after giving effect to payments to be made on such
Payment Date.
"Owner Trustee": Wilmington Trust Company, a Delaware banking
corporation, and any successor in interest, not in its individual capacity, but
solely as owner trustee under the Trust Agreement.
"Owner Trustee Fee": The fee payable to the Owner Trustee by the Seller
pursuant to a Fee Letter Agreement specified in Section 7.03 of the Trust
Agreement as notified to the Indenture Trustee.
"Ownership Interest": As to any Residual Certificate, any ownership or
security interest in such Residual Certificate, including any interest in such
Residual Certificate as the Holder thereof and any other interest therein,
whether direct or indirect, legal or beneficial, as owner or as pledgee.
"Paying Agent": The Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11 of
the Indenture and is authorized by the Issuer to make payments to and
distributions from the Trust Accounts, including payments of principal and/or
interest on the Notes on behalf of the Issuer.
"Payment Account": The account designated as the "Payment Account" and
established pursuant to Section 5.02.
"Payment Date": The 25th day of each month or, if such 25th day is not
a Business Day, the next succeeding Business Day, commencing in April 2005.
"Percentage Interest": With respect to the Notes of any Class, the
percentage obtained by dividing the principal denomination of such Note by the
aggregate of the principal denominations of all Notes of such Class. With
respect to a Residual Certificate, the percentage set forth on the face of such
Residual Certificate.
"Permitted Transferee": Any Person other than (i) a Disqualified
Organization or (ii) a Non-U.S. Person, other than a Non-U.S. Person that holds
a Residual Certificate in connection with the Conduct of a trade or business
within the United States and has furnished to the Certificate Registrar an
Internal Revenue Service Form W8-ECI (or successor form) at the time and in the
manner specified in the Code.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": The meaning specified in Section 2.03 of the Indenture.
"Pool Balance": With respect to any date, the aggregate of the
Principal Balances of all of the Mortgage Loans as of such date.
"Pool Delinquency Rate": With respect to any Collection Period, the
fraction, expressed as a percentage, equal to (x) the aggregate Principal
Balances of all Mortgage Loans that are 60
A-29
or more days delinquent (including all foreclosures and REO properties) as of
the close of business on the last day of such Collection Period over (y) the
Pool Balance as of the close of business on the last day of such Collection
Period.
"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 2.05 of the Indenture 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.
"Pre-Funded Amount": As of any date of determination, the amount on
deposit in the Pre-Funding Account.
"Pre-Funding Account": The custodial account or accounts established
and maintained with the Indenture Trustee for the benefit of the Noteholders and
the Certificateholders pursuant to Section 5.01 of the Sale and Servicing
Agreement. The Pre-Funding Account shall be an Eligible Account.
"Pre-Funding Period": The period commencing on the Closing Date and
ending on the earlier of (i) the close of business on June 27, 2005 and (ii) the
date on which the amount on deposit in the Pre-Funding Account is less than
$10,000.
"Prime Rate": As of any date, the prime rate of the United States money
center commercial banks as published in the latest edition of THE WALL STREET
JOURNAL, Northeast Edition.
"Principal Balance": As of any date and with respect to any Mortgage
Loan other than a Liquidated Mortgage Loan, the principal balance of such
Mortgage Loans as of the Cut-off Date, plus (i) any Additional Balance in
respect of such Mortgage Loan, minus (ii) all collections credited as principal
against the principal balance of any such Mortgage Loan in accordance with the
related Credit Line Agreement prior to such day. For purposes of this
definition, a Liquidated Mortgage Loan shall be deemed to have a Principal
Balance equal to the Principal Balance of such Mortgage Loan immediately prior
to the final recovery of related Liquidation Proceeds and a Principal Balance of
zero thereafter.
"Principal Remittance Amount": With respect to any Payment Date, that
portion of Available Funds equal to the sum of (i) each scheduled payment of
principal collected or advanced on the Mortgage Loans by the Servicer that was
due during the related Collection Period, (ii) the principal portion of all
partial and full Principal Prepayments applied by the Servicer during the
related Collection Period, (iii) the principal portion of all related Net
Liquidation Proceeds, Insurance Proceeds and Subsequent Recoveries received
during the related Collection Period, (iv) that portion of the Loan Purchase
Price, representing principal of any repurchased Mortgage Loan, deposited in the
Collection Account during the related Collection Period, (v) the principal
portion of any related Substitution Amounts deposited in the Collection Account
during the related Collection Period, (vi) on the Payment Date on which an
optional redemption occurs, that portion of the Optional Redemption Price in
respect of principal and (vii) on the Payment Date immediately following the end
of the Funding Period, any amounts
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remaining in the Pre-Funding Account (exclusive of any investment income
therein) after giving effect to any purchase of Subsequent Mortgage Loans.
"Principal Payment Amount": With respect to any Payment Date, the sum
of (i) the Basic Principal Payment Amount for such Payment Date and (ii) the
Extra Principal Payment Amount for such Payment Date.
"Proceeding": Any suit in equity, action at law or other judicial or
administrative proceeding.
"Prospective Owner": Each prospective purchaser and any subsequent
transferee of a Note.
"Prospectus": The prospectus supplement dated March __, 2005, together
with the accompanying prospectus dated February 22, 2005, relating to the Class
A Notes and the Mezzanine Notes.
"Purchase Price": With respect to all Additional Balances, at least
100% of the principal balance of such Additional Balances.
"QIB": A "qualified institutional buyer" as defined in Rule 144A.
"Qualified GIC": A guaranteed investment contract or surety bond
providing for the investment of funds in the Collection Account, Reserve Account
or the Payment Account and insuring a minimum, fixed or floating rate of return
on investments of such funds, which contract or surety bond shall:
(i) be an obligation of an insurance company or other
corporation whose long-term debt is rated by each Rating Agency in one
of its two highest rating categories or, if such insurance company has
no long-term debt, whose claims paying ability is rated by each Rating
Agency in one of its two highest rating categories, and whose
short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide that the Indenture Trustee may exercise all
of the rights under such contract or surety bond without the necessity
of taking any action by any other Person;
(iii) provide that if at any time the then current credit '
standing of the obligor under such guaranteed investment contract is
such that continued investment pursuant to such contract of funds would
result in a downgrading of any rating of the Notes as evidenced by a
letter from the Rating Agencies delivered to the Indenture Trustee, the
Indenture Trustee shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder,
together with accrued interest thereon at the interest rate provided
under such contract to the date of delivery of such funds to the
Indenture Trustee;
(iv) provide that the Indenture Trustee's interest therein
shall be transferable to any successor trustee hereunder; and
A-31
(v) provide that the funds reinvested thereunder and
accrued interest thereon be returnable to the Collection Account, the
Reserve Account or the Payment Account, as the case may be, not later
than the Business Day prior to any Payment Date.
"Qualifying Substitute Mortgage Loan": In the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement,
a Mortgage Loan that, on the date of such substitution, (i) has an outstanding
Principal Balance (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate Principal Balance), after
application of the Principal Remittance Amount and Interest Remittance Amount
due during or prior to the month of substitution, not in excess of, and not more
than 5% less than, the outstanding Principal Balance of the Deleted Mortgage
Loan as of the Due Date in the calendar month during which the substitution
occurs, (ii) has a Loan Rate not less than the Loan Rate on the Deleted Mortgage
Loan, (iii) has a maximum Loan Rate not less than the maximum Loan Rate on the
Deleted Mortgage Loan, (iv) has a minimum Loan Rate not less than the minimum
Loan Rate of the Deleted Mortgage Loan, (v) has a Margin equal to or greater
than the Margin of the Deleted Mortgage Loan, (vi) has a next adjustment date
not later than the next adjustment date on the Deleted Mortgage Loan, (vii) has
the same Due Date as the Deleted Mortgage Loan, (viii) has a remaining stated
term to maturity not longer than 18 months and not more than 18 months shorter
than the remaining stated term to maturity of the related Deleted Mortgage Loan
and has a remaining stated term to maturity not later than the Mortgage Loan
with the latest stated term to maturity as of the Closing Date, (ix) is current
as of the date of substitution, (x) has an original Combined Loan-to-Value Ratio
as of the date of substitution equal to or lower than the original Combined
Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (xi) has been
underwritten by the Originator or in accordance with the same underwriting
criteria and guidelines as the Deleted Mortgage Loan, (xii) has a risk grading
determined by the Originator at least equal to the risk grading assigned on the
Deleted Mortgage Loan, (xiii) is secured by the same property type as the
Deleted Mortgage Loan, (xiv) conforms to each representation and warranty
applicable to the Deleted Mortgage Loan made in the Sale and Servicing
Agreement, (xv) has the same or higher lien position as the Deleted Mortgage
Loan, (xvi) has a Credit Score greater than or equal to the Credit Score of the
Deleted Mortgage Loan at the time such Deleted Mortgage Loan was transferred to
the Issuer, (xvii) the related Mortgaged Property is not an investment property
(unless the Mortgaged Property related to the Deleted Mortgage Loan was an
investment property), (xviii) the related Mortgaged Property is not a second
home (unless the Mortgaged Property related to the Deleted Mortgage Loan was a
second home), (xix) the Combined Loan-to-Value Ratio is not greater than 100%,
and (xx) is no longer in its teaser period. In the event that one or more
mortgage loans are substituted for one or more Deleted Mortgage Loans, the
amounts described in clause (i) hereof shall be determined on the basis of
aggregate Principal Balances, the Loan Rates described in clause (ii) hereof
shall be determined on the basis of weighted average Loan Rates, the risk
gradings described in clause (xi) hereof shall be satisfied as to each such
mortgage loan, the terms described in clause (viii) hereof shall be determined
on the basis of weighted average remaining term to maturity, the Original
Loan-to-Value Ratios described in clause (x) hereof shall be satisfied as to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (xiv) hereof
must be satisfied as to each Qualifying Substitute Mortgage Loan or in the
aggregate, as the case may be.
"Rating Agency": Each of Fitch, ▇▇▇▇▇'▇ and S&P.
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"Rating Agency Condition": With respect to any action to which the
Rating Agency Condition applies, that each Rating Agency shall have been given
10 days (or such shorter period as is acceptable to such Rating Agency) prior
notice thereof and that each Rating Agency shall have notified the Depositor,
the Issuer and the Indenture Trustee in writing that such action will not result
in a reduction or withdrawal of the then current rating of the rated Notes.
"Realized Losses": For any Payment Date will equal (a) with respect to
Mortgage Loans that were liquidated during the related Collection Period, the
positive difference between (i) the Principal Balances of all such Mortgage
Loans and (ii) the principal portion of Net Liquidation Proceeds of such
Mortgage Loans, and (b) with respect to Charged-Off Mortgage Loans, the lesser
of (x) the amount of the Principal Balance that has been written down by the
Servicer and (y) the entire Principal Balance of such Mortgage Loan minus the
Appraised Value of the related Mortgaged Property.
"Record Date": The Business Day immediately preceding the related
Payment Date; PROVIDED, HOWEVER, that following the date on which Definitive
Notes are available, the Record Date for the Notes shall be the last Business
Day of the calendar month preceding the month in which the related Payment Date
occurs.
"Recordation Event": Any of (i) the resignation of a Servicer, (ii) the
occurrence of an Event of Servicer Termination, or (iii) the occurrence of a
bankruptcy, insolvency or foreclosure relating to a Servicer; PROVIDED, that any
Recordation Event may be waived by the Majority Securityholders.
"Reference Banks": Those banks (i) with an established place of
business in London, England, (ii) not controlling, under the control of or under
common control with the Originator or the Servicer or any affiliate thereof and
(iii) which have been designated as such by the Indenture Trustee after
consultation with the Depositor; provided, however, that if fewer than two of
such banks provide a LIBOR rate, then any leading banks selected by the
Indenture Trustee after consultation with the Depositor which are engaged in
transactions in United States dollar deposits in the international Eurocurrency
market.
"Regular Notes": The Class A Notes, the Mezzanine Notes, the Class B
Notes and the Class C Interest.
"Relief Act": The Servicemembers Civil Relief Act.
"Relief Act Interest Shortfall": With respect to any Payment Date and
any Mortgage Loan, any reduction in the amount of interest collectible on such
Mortgage Loan for the most recently ended calendar month as a result of the
application of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
"REMIC 1": The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with respect
to which a REMIC election is to be made consisting of: (i) such Mortgage Loans
as from time to time are subject to this Agreement, together with the Mortgage
Files relating thereto, and together with all collections thereon and proceeds
thereof, (ii) any REO Property, together with all collections thereon and
A-33
proceeds thereof, (iii) the Indenture Trustee's rights with respect to the
Mortgage Loans under all insurance policies, required to be maintained pursuant
to this Agreement and any proceeds thereof and (iv) the Collection Account, the
Payment Account (subject to the last sentence of this definition) and any REO
Account and such assets that are deposited therein from time to time and any
investments thereof, together with any and all income, proceeds and payments
with respect thereto. Notwithstanding the foregoing, however, a REMIC election
will not be made with respect to the Pre-Funding Account, any Subsequent
Mortgage Loan Interest or the Net WAC Rate Carryover Reserve Account.
"REMIC 1 Regular Interests": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. Each REMIC 1 Regular Interest shall accrue interest
at the related Uncertificated REMIC 1 Remittance Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions of the Trust Agreement, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Trust Agreement.
The following is a list of each of the REMIC 1 Regular Interests: REMIC 1
Regular Interest LT1 and REMIC 1 Regular Interest LT1PF.
"REMIC 2": The segregated pool of assets consisting of all of the REMIC
1 Regular Interests and conveyed in trust to the Indenture Trustee, for the
benefit of REMIC 3, as holder of the REMIC 2 Regular Interests, and the Class R
Certificateholders, as Holders of the Class R-2 Interest, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
"REMIC 2 Interest Loss Allocation Amount": With respect to any Payment
Date, an amount equal to (a) the product of (i) the aggregate Principal Balance
of the Mortgage Loans and related REO Properties then outstanding and (ii) the
Uncertificated REMIC 2 Remittance Rate for REMIC 2 Regular Interest LTAA minus
the Marker Rate, divided by (b) 12.
"REMIC 2 Overcollateralization Target Amount": 1.00% of the
Overcollateralization Target Amount.
"REMIC 2 Overcollateralization Amount": With respect to any date of
determination, (i) 1.00% of the aggregate Uncertificated Principal Balance of
the REMIC 2 Regular Interests minus (ii) the aggregate Uncertificated Principal
Balance of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTA1, REMIC 2
Regular Interest LTA2, REMIC 2 Regular Interest LTA3, REMIC 2 Regular Interest
LTA4, REMIC 2 Regular Interest LTA5, REMIC 2 Regular Interest LTM1, REMIC 2
Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest
LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2
Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest
LTB1, REMIC 2 Regular Interest LTB2 and REMIC 2 Regular Interest LTB3, in each
case as of such date of determination.
"REMIC 2 Principal Loss Allocation Amount": With respect to any Payment
Date, an amount equal to the product of (i) the aggregate Principal Balance of
the Mortgage Loans and related REO Properties then outstanding and the amounts
on deposit in the Pre-Funding Account (exclusive of any investment income
therein) and (ii) 1 minus a fraction, the numerator of which is two times the
aggregate Uncertificated Principal Balance of REMIC 2 Regular Interest LTA1,
A-34
REMIC 2 Regular Interest LTA2, REMIC 2 Regular Interest LTA3, REMIC 2 Regular
Interest LTA4, REMIC 2 Regular Interest LTA5, REMIC 2 Regular Interest LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTB1, REMIC 2 Regular Interest LTB2, REMIC 2 Regular Interest LTB3 and
REMIC 2 Regular Interest LTB4 and the denominator of which is the aggregate
REMIC 2 Regular Interest LTA1, REMIC 2 Regular Interest LTA2, REMIC 2 Regular
Interest LTA3, REMIC 2 Regular Interest LTA4, REMIC 2 Regular Interest LTA5,
REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular
Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5,
REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular
Interest LTM8, REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2,
REMIC 2 Regular Interest LTB3, REMIC 2 Regular Interest LTB4 and REMIC 2 Regular
Interest LTZZ.
"REMIC 2 Regular Interests": One of the separate non-certificated
beneficial ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. Each REMIC 2 Regular Interest shall accrue interest
at the related Uncertificated REMIC 2 Remittance Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Trust Agreement. The
following is a list of each of the REMIC 2 Regular Interests: REMIC 2 Regular
Interest LTAA, REMIC 2 Regular Interest LTA1, REMIC 2 Regular Interest LTA2,
REMIC 2 Regular Interest LTA3, REMIC 2 Regular Interest LTA4, REMIC 2 Regular
Interest LTA5, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2,
REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular
Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7,
REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTB1, REMIC 2 Regular
Interest LTB2, REMIC 2 Regular Interest LTB3, REMIC 2 Regular Interest LTB4 and
REMIC 2 Regular Interest LTZZ.
"REMIC 3": The segregated pool of assets consisting of all of the REMIC
2 Regular Interests conveyed in trust to the Indenture Trustee, for the benefit
of the Holders of the Regular Notes (other than the Class C Certificates), the
Class C Interest and the Class R Certificates (in respect of the Class R-3
Interest), pursuant to the Trust Agreement, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
"REMIC 4": The segregated pool of assets consisting of the Class C
Interest conveyed in trust to the Indenture Trustee, for the benefit of the
Holders of the Class C Certificates and the Class R-X Certificates (in respect
of the Class R-4 Interest), pursuant to the Trust Agreement, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
"REMIC Regular Interests": The REMIC 1 Regular Interests, the REMIC 2
Regular Interests and the Class C Interest.
A-35
"REO Property": A Mortgaged Property acquired by the Servicer through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
"Reserve Interest Rate": With respect to any Interest Determination
Date, the rate per annum that the Indenture Trustee determines to be either (i)
the arithmetic mean (rounded upwards if necessary to the nearest whole multiple
of 1/16 of 1%) of the one-month United States dollar lending rates which banks
in The City of New York selected by the Depositor are quoting on the relevant
Interest Determination Date to the principal London offices of leading banks in
the London interbank market or (ii) in the event that the Indenture Trustee can
determine no such arithmetic mean, in the case of any Interest Determination
Date after the initial Interest Determination Date, the lowest one-month United
States dollar lending rate which such New York banks selected by the Depositor
are quoting on such Interest Determination Date to leading European banks.
"Residual Certificate": Any of the Class G, Class C, Class R and Class
R-X Certificates.
"Residual Certificateholder" or "Certificateholder": Any holder of a
Residual Certificate.
"Responsible Officer": With respect to the Indenture Trustee, any
Managing Director, Director, Vice President, any Assistant Vice President, any
Assistant Secretary, any Assistant Treasurer, any Associate or any other officer
of the Indenture Trustee customarily performing functions similar to those
performed by any of the above-designated officers and, in each case, having
direct responsibility for the administration of the Operative Agreements 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. With respect to the Owner Trustee, any officer within the
Corporate Trust Office of the Owner Trustee with direct responsibility for the
administration of the Trust 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; and with respect to
the Administrator, any officer with direct responsibility for the administration
of the Trust 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.
"Reserve Account": The Account designated as the "Reserve Account" and
established pursuant to Section 5.05.
"Rule 144A": Rule 144A under the Securities Act.
"S&P": Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor in interest.
"Secretary of State": The Secretary of State of the State of Delaware.
"Second Lien Mortgage Loan": Any Mortgage Loan that is secured by a
second lien on the related Mortgaged Property.
"Secured Obligations": All amounts and obligations which the Issuer may
at any time owe the Indenture Trustee for the benefit of the Noteholders under
the indenture or the Notes.
A-36
"Securities": The Notes and the Residual Certificates.
"Securities Act": The Securities Act of 1933, as amended.
"Securities Intermediary": The Person acting as Securities Intermediary
under this Agreement (which, as of the date hereof, is Deutsche Bank National
Trust Company), its successor in interest, and any successor Securities
Intermediary appointed pursuant to Section 5.08.
"Security Entitlement": The meaning specified in Section 8-102(a)(17)
of the New York UCC.
"Securityholders": The Noteholders and the Certificateholders.
"Seller": Greenwich Capital Financial Products, Inc., or any successor
in interest.
"Senior Principal Payment Amount": The excess of (x) the aggregate Note
Balance of the Class A Notes immediately prior to such Payment Date over (y) the
lesser of (A) the product of (i) 62.90% and (ii) the excess of (1) aggregate
Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period over (2) the Certificate Principal Balance of the Class G
Certificates (after taking into account the payment of any principal to the
Class G Certificates on such Payment Date) and (B) the excess of (1) aggregate
Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period over (2) the Certificate Principal Balance of the Class G
Certificates (after taking into account the payment of any principal to the
Class G Certificates on such Payment Date) minus the Overcollateralization
Floor.
"Servicer Remittance Amount": With respect to any Payment Date, (a) the
sum of (i) the Interest Remittance Amount for such date and (ii) the Principal
Remittance Amount for such date.
"Servicer Remittance Date": With respect to each Payment Date, the
third Business Day prior to such Payment Date.
"Servicer": GreenPoint, in the capacity of servicer, or any of its
successors in interest.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by a Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
inspection, restoration and protection of any Mortgaged Property, (b) any
enforcement or administrative or judicial proceedings, including foreclosures,
(c) the management and liquidation of any Mortgaged Property if such Mortgaged
Property is acquired in satisfaction of the related Mortgage, (d) taxes,
assessments, water rates, sewer rents and other charges which are or may become
a lien upon any Mortgaged Property, (e) any fire or hazard insurance coverage on
any Mortgaged Property required under the terms of the related Servicing
Agreement and (f) any losses sustained by a Servicer with respect to the
liquidation of any related Mortgaged Property.
A-37
"Servicing Certificate": The monthly certificate to be delivered by the
Servicer pursuant to Section 4.17 of the Sale and Servicing Agreement.
"Servicing Fee": As to any Payment Date and each Mortgage Loan, an
amount equal to the product of (a) one-twelfth of the Servicing Fee Rate and (b)
the outstanding principal balance of such Mortgage Loan as of the first day of
the related Collection Period.
"Servicing Fee Rate": With respect to each Mortgage Loan, 0.50%.
"Servicing File": The mortgage documents relating to a particular
Mortgage Loan retained by the Servicer for purposes of the servicing such
Mortgage Loan pursuant to this Agreement.
"Single Certificate": A Residual Certificate representing a 100%
Percentage Interest.
"Startup Day": As defined in Section 11.04(b) of the Indenture.
"State": Any one of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ or
the District of Columbia.
"Stepdown Date": The earlier to occur of (i) the first Payment Date on
which the aggregate Note Balance of the Class A Notes has been reduced to zero
and (ii) the later to occur of (x) the Payment Date occurring in April 2008 and
(y) the first Payment Date on which the Credit Enhancement Percentage
(calculated for this purpose only after taking into account payments of
principal on the Mortgage Loans but prior to payment of the Principal Payment
Amount to the Notes then entitled to payments of principal on such Payment Date)
is equal to or greater than 37.10%.
"Subsequent Cut-Off Date": With respect to any Subsequent Mortgage
Loan, the later to occur of (x) the first day of the calendar month in which the
related Subsequent Transfer Date occurs and (y) the date of origination of such
Subsequent Mortgage Loan.
"Subsequent Mortgage Loan Interest": Any amount constituting a monthly
payment of interest received or advanced at the Adjusted Net Mortgage Rate with
respect to a Subsequent Mortgage Loan during the Collection Period relating to
the first three Payment Dates in excess of 0.00% per annum. The Subsequent
Mortgage Loan Interest shall be distributable to the Class C Certificates. The
Subsequent Mortgage Loan Interest shall not be an asset of any REMIC.
"Subsequent Mortgage Loans": Each Mortgage Loan acquired pursuant to
Section 2.05 of the Sale and Servicing Agreement and a Subsequent Transfer
Agreement, which Mortgage Loan shall be listed on a revised Mortgage Loan
Schedule delivered pursuant to the Sale and Servicing Agreement and attached as
Exhibit A to the Subsequent Transfer Agreement, with funds on deposit in the
Pre-Funding Account during the Pre-Funding Period on the related Subsequent
Transfer Date.
"Subsequent Recoveries": With respect to any Mortgage Loan that becomes
a Liquidated Mortgage Loan prior to the Collection Period relating to a Payment
Date, all amounts received in respect of principal on such Liquidated Mortgage
Loan during the calendar month prior to such Payment Date, net of reimbursable
expenses in respect thereof.
A-38
"Subsequent Transfer Agreement": A Subsequent Transfer Agreement
substantially in the form of Exhibit F to the Sale and Servicing Agreement.
"Subsequent Transfer Date": For any Subsequent Mortgage Loan, the
Business Day on which such Subsequent Mortgage Loan is transferred to the Trust
pursuant to the related Subsequent Transfer Agreement. With respect to any
Eligible Substitute Mortgage Loan, the opening of business on the first day of
the calendar month in which such Eligible Substitute Mortgage Loan is conveyed
to the Trust.
"Subsequent Transfer Notice": With respect to the transfer of
Subsequent Mortgage Loans pursuant to Section 2.05 of the Sale and Servicing
Agreement, a notice delivered by the Depositor to the Servicer, the Indenture
Trustee and the Rating Agencies identifying the related Subsequent Mortgage
Loans.
"Substitute Cut-Off Date": With respect to any Qualifying Substitute
Mortgage Loan, the opening of business on the first day of the calendar month in
which such Qualifying Substitute Mortgage Loan is conveyed to the Trust.
"Substitution Amount": In connection with the delivery of any
Qualifying Substitute Mortgage Loan, if the outstanding principal amount of such
Qualifying Substitute Mortgage Loan as of the applicable Substitute Cut-Off Date
is less than the related Principal Balance of the Mortgage Loan being replaced
as of such Substitute Cut-Off Date, an amount equal to such difference together
with accrued and unpaid interest on such amount calculated at the Loan Rate of
the Mortgage Loan being replaced.
"Tax Matters Person": The tax matters person appointed pursuant to
Section 11.04(e) of the Indenture.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of the REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed by the Indenture Trustee on behalf of each REMIC, together
with any and all other information reports or returns that may be required to be
furnished to the Noteholders or filed with the Internal Revenue Service or any
other governmental taxing authority under any applicable provisions of federal,
state or local tax laws.
"Telerate Page 3750": The display currently so designated as "Page
3750" on the Bridge Telerate Service (or such other page selected by the
Indenture Trustee (after consultation with the Depositor) as may replace Page
3750 on that service for the purpose of displaying daily comparable rates on
prices).
"Termination Date": The date on which the Indenture Trustee shall have
received payment and performance of all Indenture Trustee Issuer Secured
Obligations.
"Title Insurance Policy": A title insurance policy maintained with
respect to a Mortgage Loan.
"Trigger Event": A Trigger Event is in effect with respect to any
Payment Date on or after the Stepdown Date if:
A-39
(i) the sum of the percentages obtained by dividing (x)
the aggregate Principal Balance of the Mortgage Loans that are
Delinquent 60 days or more (including Mortgage Loans that are REO
Properties, in foreclosure or bankruptcy and that are also Delinquent
60 days or more) by (y) the aggregate Principal Balance of the Mortgage
Loans, each case, as of the last day of the previous three calendar
months divided by 3 exceeds 10.75% of the Credit Enhancement Percentage
or
(ii) the aggregate amount of Realized Losses incurred
since the Cut-off Date through the last day of the related Collection
Period (reduced by the aggregate amount of Subsequent Recoveries
received since the Cut-off Date through the last day of the related
Collection Period) divided by the sum of (x) the aggregate Principal
Balance of the Initial Mortgage Loans as of the Cut-off Date and (y)
the Original Pre-Funded Amount exceeds the applicable percentages set
forth below with respect to such Payment Date:
PAYMENT DATE OCCURRING IN PERCENTAGE
------------------------------------------ ----------------------------------------------------------------
April 2007 through March 2008 1.75% for the first month plus an additional 1/12th of
0.50% for each month thereafter
April 2008 through March 2009 2.25% for the first month plus an additional 1/12th of
1.00% for each month thereafter
April 2009 through March 2010 3.25% for the first month plus an additional 1/12th of
1.00% for each month thereafter
April 2010 through March 2011 4.25% for the first month plus an additional 1/12th of
0.25% for each month thereafter
April 2011 and thereafter 4.50%
"Trust" or "Trust Fund": The Issuer.
"Trust Account Property": The Trust Accounts, all amounts and
investments held from time to time in the Trust Accounts (whether in the form of
deposit accounts, physical property, book-entry securities, uncertificated
securities, securities entitlements, investment property or otherwise) and all
proceeds of the foregoing.
"Trust Accounts": The Reserve Account, the Pre-Funding Account, the
Collection Account, the Certificate Account and the Payment Account.
"Trust Agreement": The Trust Agreement dated as of March 30, 2005,
among the Depositor, the Certificate Registrar and the Owner Trustee, as such
may be amended or supplemented from time to time.
"Trust Estate": The assets subject to this Agreement and the Indenture,
transferred by the Depositor to the Issuer and pledged by the Issuer to the
Indenture Trustee, which assets consist of all accounts, accounts receivable,
contract rights, general intangibles, chattel paper, instruments, documents,
money, deposit accounts, certificates of deposit, goods, notes, drafts, letters
of credit, advices of credit, investment property, uncertificated securities and
rights to payment of any and every kind consisting of, arising from or relating
to any of the following: (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, and principal due and payable after the Cut-off Date, but not
including interest and principal due and payable on any Mortgage Loans on or
before the Cut-off Date, together with the Mortgage Files relating to such
Mortgage Loans; (b) any Insurance Proceeds, REO Property, Liquidation Proceeds
and other recoveries (in each case, subject to clause (a) above), (c) the Trust
Accounts, Subsequent Recoveries, any
A-40
Escrow Account and all amounts deposited therein pursuant to the applicable
provisions of this Agreement, (d) any Insurance Policies, and (e) all income,
revenues, issues, products, revisions, substitutions, replacements, profits,
rents and all cash and non-cash proceeds of the foregoing.
"Trust Indenture Act" or "TIA": The Trust Indenture Act of 1939 as in
force on the date hereof, unless otherwise specifically provided.
"UCC": The Uniform Commercial Code as enacted in the relevant
jurisdiction.
"Unadjusted Net WAC 30/360 Rate": For any Payment Date, a per annum
rate equal to the weighted average of the Adjusted Net Mortgage Rates of the
Mortgage Loans for such Payment Date.
"Uncertificated Accrued Interest": With respect to each REMIC Regular
Interest on each Payment Date, an amount equal to one month's interest at the
related Uncertificated REMIC Remittance Rate on the Uncertificated Principal
Balance of such REMIC Regular Interest. In each case, Uncertificated Accrued
Interest will be reduced by any Relief Act Interest Shortfalls (allocated to
such REMIC Regular Interests based on their respective entitlements to interest
irrespective of any Relief Act Interest Shortfalls for such Payment Date).
"Uncertificated Principal Balance": With respect to each REMIC Regular
Interest, the amount of such REMIC Regular Interest outstanding as of any date
of determination. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC Regular Interest shall equal the amount set forth in the Trust
Agreement as its initial Uncertificated Principal Balance. On each Payment Date,
the Uncertificated Principal Balance of each REMIC Regular Interest shall be
reduced by all distributions of principal made on such REMIC Regular Interest on
such Payment Date and, if and to the extent necessary and appropriate, shall be
further reduced on such Payment Date by Realized Losses, and the Uncertificated
Principal Balance of REMIC 2 Regular Interest LTZZ shall be increased by
interest deferrals. With respect to the Class C Interest as of any date of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC 2 Regular Interests over (B) the
then aggregate Note Balance of the Class A Notes, the Mezzanine Notes and the
Class B Notes then outstanding. The Uncertificated Principal Balance of each
REMIC Regular Interest that has an Uncertificated Principal Balance shall never
be less than zero.
"Uncertificated REMIC Remittance Rate": The Uncertificated REMIC 1
Remittance Rate or Uncertificated REMIC 2 Remittance Rate, as applicable.
"Uncertificated REMIC 1 Remittance Rate": With respect to REMIC 1
Regular Interest LT1 and (i) the first three Payment Dates, the weighted average
of the Adjusted Net Mortgage Rates of the Initial Mortgage Loans and (ii)
thereafter, the weighted average of the Adjusted Net Mortgage Rates of the
Mortgage Loans. With respect to REMIC 1 Regular Interest LT1PF and (i) the first
three Payment Dates, _____% and (ii) thereafter, the weighted average of the
Adjusted Net Mortgage Rates of the Mortgage Loans.
"Uncertificated REMIC 2 Remittance Rate": For any Payment Date and each
REMIC 2 Regular Interest, the weighted average of the Uncertificated REMIC 1
Remittance Rate on the REMIC 1 Regular Interests, weighted on the basis of the
Uncertificated Principal Balance of each such REMIC 1 Regular Interest.
A-41
"Undercollateralized Amount": As defined in Section 5.06(b).
"Underwriter": RBS Greenwich Capital Inc.
"United States Person" or "U.S. Person": A citizen or resident of the
United States, a corporation, partnership (or other entity treated as a
corporation or partnership for United States federal income tax purposes)
created or organized in, or under the laws of, the United States, any state
thereof, or the District of Columbia (except in the case of a partnership, to
the extent provided in Treasury regulations) provided that, for purposes solely
of the restrictions on the transfer of Residual Certificates, no partnership or
other entity treated as a partnership for United States federal income tax
purposes shall be treated as a United States Person unless all persons that own
an interest in such partnership either directly or through any entity that is
not a corporation for United States federal income tax purposes are required by
the applicable operative agreement to be United States Persons, or an estate the
income of which from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have authority to control all substantial decisions of the trust. The
term "United States" shall have the meaning set forth in Section 7701 of the
Code or successor provisions.
"Unpaid Interest Shortfall Amount": With respect to the Class A Notes,
the Mezzanine Notes and the Class B Notes and (i) the first Payment Date, zero,
and (ii) any Payment Date after the first Payment Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Payable Amount for such Class for
the immediately preceding Payment Date and (2) the outstanding Unpaid Interest
Shortfall Amount, if any, for such Class for such preceding Payment Date exceeds
(b) the aggregate amount distributed on such Class in respect of interest
pursuant to clause (a) of this definition on such preceding Payment Date, plus
interest on the amount of interest due but not paid on the Notes of such Class
on such preceding Payment Date, to the extent permitted by law, at the Note Rate
for such Class for the related Accrual Period.
▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF INITIAL CERTIFICATION
-------------------
Date
[Indenture Trustee]
[Depositor]
[Servicer]
Re: Sale and Servicing Agreement (the "Sale and Servicing
Agreement") dated as of March 30, 2005 by and among Financial
Asset Securities Corp., as Depositor, Deutsche Bank National
Trust Company, as Indenture Trustee, GreenPoint Mortgage
Funding, Inc, as Servicer and Originator, Greenwich Capital
Financial Products, Inc., as Seller and GreenPoint Mortgage
Funding Trust 2005-HE1, as - ISSUER
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the Sale and Servicing Agreement,
subject to review of the contents thereof, the undersigned hereby certifies that
it has received the documents required by Section 2.01(d)(i)-(v) and, to the
extent actually provided to it, the documents in Section 2.01(d)(vi)-(vii) of
the Sale and Servicing Agreement for each Mortgage File pertaining to each
Mortgage Loan listed on Schedule A, to the Sale and Servicing Agreement, subject
to any exceptions noted on Schedule I hereto.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Sale and
Servicing Agreement. This certificate is subject to and qualified in all
respects to the terms of the Sale and Servicing Agreement and the Sale and
Servicing Agreement sections cross-referenced therein.
[Indenture Trustee]
By:_____________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF INTERIM CERTIFICATION
-------------------
Date
[Indenture Trustee]
[Depositor]
[Servicer]
Re: Sale and Servicing Agreement (the "Sale and Servicing
Agreement") dated as of March 30, 2005 by and among Financial
Asset Securities Corp., as Depositor, Deutsche bank National
Trust Company, as Indenture Trustee, GreenPoint Mortgage
Funding, Inc, as Servicer and Originator, Greenwich Capital
Financial Products, Inc., as Seller and GreenPoint Mortgage
Funding Trust 2005-HE1, as - ISSUER
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the Sale and Servicing Agreement,
the undersigned hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
Schedule I hereto) it has received the applicable documents required by Section
2.01(d)(i)-(v) and, to the extent actually provided to it, the documents in
Section 2.01(d)(vi)-(vii) of the Sale and Servicing Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed on
Schedule I hereto, it has reviewed the documents identified above and has
determined that each such document appears regular on its face and appears to
relate to the Mortgage Loan identified in such document.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Sale and Servicing Agreement. This certificate
is subject to and qualified in all respects by the terms of said Sale and
Servicing Agreement including, but not limited to, Section 2.02(b).
[Indenture Trustee]
By:_____________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF FINAL CERTIFICATION
-------------------
Date
[Indenture Trustee]
[Depositor]
[Servicer]
Re: Sale and Servicing Agreement (the "Sale and Servicing
Agreement") dated as of March 30, 2005 by and among Financial
Asset Securities Corp., as Depositor, Deutsche Bank National
Trust Company, as Indenture Trustee, GreenPoint Mortgage
Funding, Inc, as Servicer and Originator, Greenwich Capital
Financial Products, Inc., as Seller and GreenPoint Mortgage
Funding Trust 2005-HE1, as - ISSUER
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(d) of the Sale and Servicing Agreement,
the undersigned hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
Schedule I hereto) it has received the applicable documents required by Section
2.01(d)(i)-(v) and, to the extent actually provided to it, the documents in
Section 2.01(d)(vi)-(vii) of the Sale and Servicing Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed on
Schedule I hereto, it has reviewed the documents listed above and has determined
that each such document appears to be complete and, based on an examination of
such documents, the information set forth in items (i) and (iv) of the
definition of Mortgage Loan Schedule is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Sale and Servicing Agreement. This certificate
is qualified in all respects by the terms of said Sale and Servicing Agreement.
[Indenture Trustee]
By:_____________________________________
Name:
Title:
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EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
GreenPoint Mortgage Funding, Inc. (the "Originator") hereby makes the
representations and warranties set forth in this Schedule B to the Depositor,
the Servicer, the Seller and the Indenture Trustee, as of the Closing Date and
each Subsequent Transfer Date, or if so specified herein, with respect to the
Cut-off Date. With respect to each Mortgage Loan:
(1) The information set forth in the Mortgage Loan Schedule is
complete, true and correct in all material respects as of the Cut-off Date;
(2) The Mortgage creates a first or second lien (as indicated on
the Mortgage Loan Schedule) or a first or second priority ownership interest (as
indicated on the Mortgage Loan Schedule) in an estate in fee simple in real
property securing the related Mortgage Note;
(3) All payments due on or prior to the Cut-off Date for such
Mortgage Loan have been made as of the Closing Date, the Mortgage Loan is not
delinquent in payment more than 29 days and has not been dishonored; there are
no material defaults under the terms of the Mortgage Loan; the Originator has
not advanced funds, or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount required by the
Mortgage Loan; and no payment has been 30 days delinquent during the preceding
twelve-month period;
(4) All taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or escrow funds have been
established in an amount sufficient to pay for every such escrowed item which
remains unpaid and which has been assessed but is not yet due and payable;
(5) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by law, or, necessary to protect the interest of the Purchaser. No
instrument of waiver, alteration or modification has been executed, and no
Mortgagor has been released, in whole or in part, from the terms thereof except
in connection with an assumption agreement and which assumption agreement is
part of the Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule; the substance of any such waiver, alteration or modification has
been approved by the issuer of any related title insurance policy, to the extent
required by the related policies;
(6) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render the Mortgage Note or Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense, including
the defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto; and the Mortgagor was not a
debtor in any state or federal bankruptcy or insolvency proceeding at the time
the Mortgage Loan was originated;
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(7) All buildings or other customarily insured improvements upon
the Mortgaged Property are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇
Guides, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the ▇▇▇▇▇▇ Mae Guides or by ▇▇▇▇▇▇▇ Mac, as well
as all additional requirements set forth in Section 4.10 of this Agreement. All
such standard hazard policies are in full force and effect and on the date of
origination contained a standard mortgagee clause naming the Originator and its
successors in interest and assigns as loss payee and such clause is still in
effect and all premiums due thereon have been paid. If required by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered by a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration which policy conforms to ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇
Mac requirements, as well as all additional requirements set forth in Section
4.10 of this Agreement. Such policy was issued by an insurer acceptable under
▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac guidelines. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and expense,
and upon the Mortgagor's failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(8) Each Mortgage Loan at the time it was made complied in all
material respects with applicable federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, disclosure and predatory and
abusive lending laws applicable to such Mortgage Loan;
(9) The Mortgage has not been satisfied, canceled or subordinated,
in whole or in part, or rescinded, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Originator has not waived the performance by
the Mortgagor of any action, if the Mortgagor's failure to perform such action
would cause the Mortgage Loan to be in default, nor has the Originator waived
any default resulting, from any action or inaction by the Mortgagor;
(10) With respect to any first lien Mortgage Loan, the related
Mortgage is a valid, subsisting, enforceable and perfected first lien on the
Mortgaged Property and, with respect to any Second Lien Mortgage Loan, the
related Mortgage is a valid, subsisting, enforceable and perfected second lien
on the Mortgaged Property, including all buildings on the Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems affixed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing securing the
Mortgage Note's original principal balance. The Mortgage and the Mortgage Note
do not contain any evidence of any security interest or other interest or right
thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first or second lien, as applicable, of
the Mortgage subject only to (1) with respect to any second lien Mortgage Loan,
the related first lien, (2) the lien of non-delinquent current real property
taxes and assessments not yet due and payable, (3) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record as
of the date of recording which are acceptable to mortgage lending institutions
generally and (A) are referred to in the lender's title insurance policy, or (B)
do not adversely affect the market value of the Mortgaged Property or the
intended use of the Mortgaged Property, and (4) other matters to which like
properties are commonly subject which do not
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materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates (1) with respect to any first lien Mortgage Loan, a
valid, subsisting, enforceable and perfected first lien and first priority
security interest and (2) with respect to any second lien Mortgage Loan, a
valid, subsisting, enforceable and perfected second lien and second priority
security interest, in each case, on the property described therein;
(11) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject to
bankruptcy, insolvency, moratorium, reorganization and other laws of general
application affecting the rights of creditors and by general equitable
principles. All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken place
on the part of Originator or the Mortgagor, or, on the part of any other party
involved in the origination of the Mortgage Loan. The proceeds of the Mortgage
Loan have been fully disbursed and there is no requirement for future advances
thereunder, and 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, except Draws as permitted under the Mortgage Note. All
costs, fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid or are in the process of being paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due under the
Mortgage Note or Mortgage;
(12) Immediately prior to the transfer and assignment to the
Seller, the Mortgage Loan, including the Mortgage Note and the Mortgage, were
not subject to an assignment or pledge, and the Originator had good and
marketable title to and was the sole owner thereof and had full right to
transfer and sell the Mortgage Loan to the Seller free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest.
(13) With respect to each Mortgage Loan, a lender's policy of title
insurance, lender master protection program (standard mortgage guaranty) or a
commitment letter (binder) to issue the same or an attorney's certificate or
opinion of title was effective on the date of the origination of each Mortgage
Loan and each such policy or certificate or opinion of title is valid and
remains in full force and effect. Such lender's policy of title insurance is
acceptable to ▇▇▇▇▇▇ Mae and FHLMC, issued by a title insurer acceptable to
▇▇▇▇▇▇ ▇▇▇ and FHLMC and qualified to do business in the jurisdiction where the
related Mortgaged Property is located, insuring (subject to the exceptions
contained in clauses (j)(3)(A) and (B) above) the Originator, its successors and
assigns as to the lien priority specified on the Mortgage Loan Schedule with
respect to the related Mortgage in the original principal amount of such
Mortgage Loan and against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of such Mortgage
providing for adjustment to the applicable Loan Rate and Monthly Payment.
Additionally, either such lender's title insurance policy affirmatively insures
that there is ingress and egress to and from the Mortgaged Property or the
Originator warrants that there is ingress and egress to and from the Mortgaged
Property and the lender' s title insurance policy affirmatively insures against
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encroachments by or upon the related Mortgaged Property or any interest therein
or any other adverse circumstance that either is disclosed or would have been
disclosed by an accurate survey. The Originator is the sole insured of such
lender's title insurance policy, and such lender's title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement and will inure to the benefit
of the Purchaser without any further act. No claims have been made under such
lender's title insurance policy, neither the Originator, any prior holder of the
related Mortgage has done, by act or omission, anything that would impair the
coverage of such lender's insurance policy, and there is no act, omission,
condition, or information that would impair the coverage of such lender's
insurance policy;
(14) There is no default, breach, violation or event of
acceleration existing under the 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
permitting acceleration; and neither the Originator nor any prior mortgagee has
waived any default, breach, violation or event permitting acceleration. With
respect to each second lien Mortgage Loan, (i) the first lien is in full force
and effect, (ii) there is no default, breach, violation or event of acceleration
existing under such prior mortgage or the related mortgage note, (iii) 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 thereunder, and either (A) the prior mortgage contains a provision
which allows or (B) applicable law requires, the mortgagee under the second lien
Mortgage Loan to receive notice of, and affords such mortgagee an opportunity to
cure any default by payment in full or otherwise under the prior mortgage;
(15) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding that under
law could give rise to such liens) affecting the related Mortgaged Property
which are or may be liens prior to or equal to the lien of the related Mortgage;
(16) All improvements subject to the Mortgage which were considered
in determining the appraised value of the Mortgaged Property lie wholly within
the boundaries and building restriction lines of the Mortgaged Property (and
wholly within the project with respect to a condominium unit) and no
improvements on adjoining properties encroach upon the Mortgaged Property except
those which are insured against by the title insurance policy referred to in
clause (m) above and all improvements on the property comply with all applicable
zoning and subdivision laws and ordinances;
(17) The Mortgage Loan was originated by or for the Originator. The
Mortgage Loan complies with all the terms, conditions and requirements of the
Originator's Underwriting Standards in effect at the time of origination of such
Mortgage Loan. Each Mortgage Note and Mortgage are on the forms set forth in
Exhibit K hereto. The Mortgage Loan bears interest at the Loan Rate as set forth
in the Mortgage Loan Schedule, and Minimum Monthly Payments under the Mortgage
Note are due and payable on the first day of each month. The Mortgage contains
the usual and enforceable provisions of the originator at the time of
origination for the acceleration of the payment of the unpaid principal amount
of the Mortgage Loan if the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder;
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(18) The Mortgaged Property is not subject to any material damage
by waste, fire, earthquake, windstorm, flood or other casualty. At origination
of the Mortgage Loan there was, and there currently is, no proceeding pending
for the total or partial condemnation of the Mortgaged Property. There have not
been any condemnation proceedings with respect to the Mortgaged Property and
there are no such proceedings scheduled to commence at a future date. To the
best of the Originator's knowledge, no Mortgage Loan is subject to any
litigation as of the date hereof;
(19) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby. There is no homestead or other exemption
available to the Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage;
(20) If the Mortgage constitutes a deed of trust, a trustee,
authorized and duly qualified if required under applicable law to act as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
or attempted sale after default by the Mortgagor;
(21) The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the final approval of the Mortgage Loan
application by a Qualified Appraiser, who had no interest, direct or indirect,
in the Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of ▇▇▇▇▇▇
▇▇▇ and FHLMC and Title XI of FIRREA and the regulations promulgated thereunder,
all as in effect on the date the Mortgage Loan was originated. The appraisal is
in a form acceptable to ▇▇▇▇▇▇ Mae and FHLMC;
(22) All parties which have had any interest in the Mortgage,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period
in which they held and disposed of such interest, were) (A) in compliance with
any and all applicable licensing requirements of the laws of the state wherein
the Mortgaged Property is located, and (B) (1) organized under the laws of such
state, or (2) qualified to do business in such state, or (3) federal savings and
loan associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such state;
(23) The related Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to
above and such collateral does not serve as security for any other obligation;
(24) The Mortgagor has received all disclosure materials required
by applicable law with respect to the making of such Mortgage Loans;
(25) The Mortgage Loan does not contain "graduated payment"
features; to the extent any Mortgage Loan contains any buydown provision, such
buydown funds have been maintained
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and administered in accordance with, and such Mortgage Loan otherwise complies
with, ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇ Mac requirements relating to buydown loans;
(26) The Mortgagor is not in bankruptcy and, the Mortgagor is not
insolvent or in bankruptcy and the Originator has no knowledge of any
circumstances or condition with respect to the Mortgage, the Mortgaged Property,
the Mortgagor or the Mortgagor's credit standing that could reasonably be
expected to cause investors to regard the Mortgage Loan as an unacceptable
investment, cause the Mortgage Loan to become delinquent, or materially
adversely affect the value or marketability of the Mortgage Loan;
(27) The Minimum Monthly Payment with respect to any Mortgage Loan
is not less than the interest accrued at the applicable Loan Rate on the average
daily Principal Balance during the calendar month preceding the date on which
such Minimum Monthly Payment is due;
(28) With respect to each Mortgage Loan, that is not a MERS Loan,
the related Assignment, is in recordable form and (other than with respect to
the blank assignee) is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located and, when endorsed as
provided for in this Agreement, the Mortgage Notes will be duly endorsed under
applicable law, and with respect to each Mortgage Loan that is a MERS Loan, such
Mortgage Loan is recorded on the MERS System. With respect to each MERS Mortgage
Loan, a MIN has been assigned by MERS and such MIN is accurately provided on the
related Mortgage Loan Schedule. The related Assignment of Mortgage to MERS has
been duly and properly recorded. With respect to each MERS Mortgage Loan, the
Originator has not received any notice of liens or legal actions with respect to
such Mortgage Loan and no such notices have been electronically posted by MERS;
(29) As to Mortgage Loans that are not secured by an interest in a
leasehold estate, the Mortgaged Property is located in the state identified in
the Mortgage Loan Schedule and consists of a single parcel of real property with
a detached single family residence erected thereon, or a townhouse, or a two- to
four-family dwelling, or an individual condominium unit in a condominium
project, or an individual unit in a planned unit development or a de minimis
planned unit development, provided, however, that no residence or dwelling is a
single parcel of real property with a cooperative housing corporation erected
thereon, or a mobile home. As of the date of origination, no portion of the
Mortgaged Property was used for commercial purposes, and since the date of
origination no portion of the Mortgaged Property has been used for commercial
purposes;
(30) Each Mortgage Loan accrues interest at an adjustable Loan Rate
computed on the actual number of days in a calendar month and a 365-day year.
Each Loan Rate adjusts monthly (except during a three month initial period) to
equal the sum of the applicable Index and the Margin, subject to a maximum Loan
Rate and a minimum Loan Rate;
(31) Except with respect to ___% of the Mortgage Loans, each
Mortgage Loan requires the payment of a Cancellation Fee, where applicable;
(32) Each Mortgage Loan has an original term to maturity of either
180 months or 300 months. Each Mortgage Loan has a Draw Period of either 5 or 15
years followed by an amortization period of ten years;
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(33) As of the Closing Date, the Mortgaged Property was lawfully
occupied under applicable law, and all inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of the
Mortgaged 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;
(34) If the Mortgaged Property is a condominium unit or a planned
unit development (other than a de minimis planned unit development), such
condominium or planned unit development project meets the Originator's
eligibility requirements as set forth in Originator's Underwriting Standards;
(35) There is no pending action or proceeding directly involving
the Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule or
regulation with respect to the Mortgaged Property; and nothing further remains
to be done to satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to use and enjoyment of said property;
The Mortgagor has not notified the Originator, and the Originator has no
knowledge of any relief requested or allowed to the Mortgagor under the
Servicemembers Civil Relief Act of 2003;
(36) No Mortgage Loan was made in connection with the construction
or rehabilitation of a Mortgaged Property or facilitating the trade-in or
exchange of a Mortgaged Property;
(37) Each Mortgage Loan has been serviced in all material respects
in compliance with Accepted Servicing Practices, applicable law and the terms of
the related Mortgage Loan Documents;
(38) The Mortgage Loan was originated by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to sections 203 and 211
of the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution which is
supervised and examined by a federal or state authority;
(39) With respect to any ground lease to which a Mortgaged Property
may be subject: (i) a true, correct and complete copy of the ground lease and
all amendments, modifications and supplements thereto is included in the
Servicing File, and the Mortgagor is the owner of a valid and subsisting
leasehold interest under such ground lease; (ii) such ground lease is in full
force and effect, unmodified and not supplemented by any writing or otherwise
except as contained in the Mortgage File; (iii) all rent, additional rent and
other charges reserved therein have been fully paid to the extent payable as of
the Closing Date; (iv) the Mortgagor enjoys the quiet and peaceful possession of
the leasehold estate, subject to any sublease; (v) the Mortgagor is not in
default under any of the terms of such ground lease, and there are no
circumstances which, with the passage of time or the giving of notice, or both,
would result in a default under such ground lease; (vi) the lessor under such
ground lease is not in default under any of the terms or provisions of such
ground lease on the part of the lessor to be observed or performed; (vii) the
lessor under such ground lease has satisfied any repair or construction
obligations due as of the Closing Date pursuant to the terms of such ground
lease; (viii) the execution, delivery and performance of the Mortgage do not
require the consent (other than those consents which have been obtained and are
in full force and effect) under, and will not contravene any provision of or
cause a default under, such ground lease; (ix) the ground lease term extends, or
is automatically
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renewable, for at least five years beyond the maturity date of the related
Mortgage Loan; and (x) the Purchaser has the right to cure defaults on the
ground lease;
(40) With respect to any broker fees collected and paid on any of
the Mortgage Loans, all broker fees have been properly assessed to the Mortgagor
and no claims will arise as to broker fees that are double charged and for which
the Mortgagor would be entitled to reimbursement;
(41) With respect to any Mortgage Loan as to which an affidavit has
been delivered to the Purchaser certifying that the original Mortgage Note has
been lost or destroyed and not been replaced, if such Mortgage Loan is
subsequently in default, the enforcement of such Mortgage Loan will not be
materially adversely affected by the absence of the original Mortgage Note;
provided, however, that no more than 1% of the Mortgage Loans, in the aggregate,
have lost note affidavits;
(42) Each Mortgage Loan constitutes a qualified mortgage under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
(43) Except as provided in Section 2.07, the Mortgage Note, the
Mortgage, the Assignment and the other documents set forth in SECTION 2.01 and
required to be delivered on the Closing Date have been delivered to the Seller
or its designee;
(44) All information supplied by, on behalf of, or concerning the
Mortgagor is true, accurate and complete and does not contain any material
statement that is or will be inaccurate or misleading in any material respect;
(45) There does not exist on the related Mortgaged Property 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;
(46) The Mortgagor has executed a statement to the effect that the
Mortgagor has received all disclosure materials required by applicable law with
respect to the making of Mortgage Loans. The Servicer shall maintain such
statement in the Servicing File;
(47) No Mortgage Loan has an LTV or CLTV, as applicable, in excess
of 100% and no second lien Mortgage Loan has an Equity LTV in excess of 100%;
(48) Either (a) no consent for the second lien Mortgage Loan is
required by the holder of the related first lien or (b) such consent has been
obtained and is contained in the Mortgage File;
(49) The Originator has not received notice of: (1) any proceeding
for the total or partial condemnation of any Mortgaged Property, (2) any
subsequent, intervening mortgage, lien, attachment, lis pendens or other
encumbrance affecting any Mortgaged Property or (3) with respect to any second
lien Mortgage Loan, any default under any mortgage, lien or other encumbrance
senior to each Mortgage;
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(50) With respect to any second lien Mortgage Loan and where
required or customary in the jurisdiction in which the Mortgaged Property is
located, the original lender has filed for record a request for notice of any
action by the senior lienholder under the related first lien, and the original
lender has notified any senior lienholder in writing of the existence of the
related second lien Mortgage Loan and requested notification of any action to be
taken against the Mortgagor by the senior lienholder;
(51) With respect to each Mortgage Loan that has a prepayment
penalty feature, each such Prepayment Penalty is enforceable and each prepayment
penalty is permitted pursuant to applicable federal, state and local law,
subject to federal preemption where applicable;
(52) None of the Mortgage Loans are (a) loans subject to 12 CFR
Part 226.31, 12 CFR Part 226.32 or 12 CFR Part 226.34 of Regulation Z, the
regulation implementing TILA, which implements the Home Ownership and Equity
Protection Act of 1994 ("HOEPA"), as amended, (b) classified and/or defined as a
"high cost," "high risk," "threshold," "covered," or "predatory" loan under any
other applicable state, federal or local law, including, but not limited to, the
States of Georgia, New York, North Carolina or the City of New York or (c)
subject to the New Jersey Home Ownership Security Act of 2002 (the "Act"),
unless such Mortgage Loan is a (1) "Home Loan" as defined in the Act that is (A)
a first lien purchase money mortgage loan, which is not a "High Cost Home Loan"
as defined in the Act or (B) a rate and term refinance as set forth in the
Originator's Underwriting Standards which is not a "High Cost Home Loan", or (2)
"Covered Home Loan" as defined in the Act that is a first lien purchase money
mortgage loan, which is not a High Cost Home Loan under the Act;
(53) No Mortgage Loan is (a) subject to the Home Ownership and
Equity Protection Act of 1994 or any comparable state, federal or local law, (b)
subject to any comparable federal, state or local statutes or regulations, or
any other statute or regulation providing for heightened regulatory scrutiny or
assignee liability to holders of such mortgage loans, or (c) a High Cost Loan or
Covered Loan, as applicable (as such terms are defined in the current Standard &
Poor's LEVELS(R) Glossary Revised, Appendix E);
(54) No Mortgage Loan that was originated on or after October 1,
2002 and before March 7, 2003 is secured by a Mortgaged Property located in the
State of Georgia;
(55) As of the Closing Date, with respect to any second lien
Mortgage Loan, the Originator has not received a notice of default of a first
lien which has not been cured;
(56) No Mortgagor was encouraged or required to select a Mortgage
Loan product offered by the originator that is a higher-cost product designed
for less creditworthy borrowers, unless at the time of the loan's origination
such Mortgagor did not qualify (taking into account credit history and
debit-to-income ratios) for a lower cost credit product then offered by the
originator of the Mortgage Loan;
(57) The methodology used in underwriting the extension of credit
for each Mortgage Loan does not rely on the extent of the Mortgagor's equity in
the collateral as the principal determining factor in approving such credit
extension. Such underwriting methodology confirmed that at the time of
origination, the Mortgagor had a reasonable ability to make timely payments on
the Mortgage Loan;
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(58) All points and fees related to each Mortgage Loan were
disclosed in writing to the related Mortgagor in accordance with applicable
state and federal law and regulations. No Mortgagor was charged points and fees
(whether or not financed) in an amount that exceeds the limits described in
▇▇▇▇▇▇ Mae's anti-predatory lending requirements as set forth in the ▇▇▇▇▇▇ Mae
Guides;
(59) Each Mortgage Loan is eligible for sale in the secondary
market or for inclusion in a Pass-Through Transfer without unreasonable credit
enhancement;
(60) No Mortgagor agreed to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage Loan transaction;
(61) No Mortgage Loan is subject to negative amortization;
(62) No Mortgage Loan was originated for the purpose of the
proceeds of such Mortgage Loan being used to finance single-premium credit life
insurance policies; and
(63) The Servicer has fully furnished in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information on the Mortgagor credit files to Equifax, Experian and Trans Union
Credit Information Company on a monthly basis.
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EXHIBIT C-1
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
-------------------
Date
[Addressed to Indenture Trustee
or, if applicable, custodian]
In connection with the administration of the mortgages held by you as
Indenture Trustee under a certain Sale and Servicing Agreement (the "Sale and
Servicing Agreement") dated as of March 30, 2005 by and among Financial Asset
Securities Corp., as Depositor, Deutsche Bank National Trust Company, as
Indenture Trustee, GreenPoint Mortgage Funding, Inc, as Servicer and Originator,
Greenwich Capital Financial Products, Inc., as Seller and GreenPoint Mortgage
Funding Trust 2005-HE1, as Issuer (the "Sale and Servicing Agreement"), the
undersigned Servicer hereby requests a release of the Mortgage File held by you
as Indenture Trustee with respect to the following described Mortgage Loan for
the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. (The Servicer hereby certifies
that all amounts received in connection with the loan have been or will be
credited to the Payment Account pursuant to the Sale and Servicing Agreement.)
2. The Mortgage Loan is being foreclosed.
3. Mortgage Loan substituted. (The Servicer hereby certifies that
a Qualifying Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Sale and Servicing
Agreement.)
4. Mortgage Loan repurchased. (The Servicer hereby certifies that
the Loan Purchase Price has been credited to the Payment Account pursuant to the
Sale and Servicing Agreement.)
5. Other. (Describe)
C-1-1
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Sale and Servicing
Agreement and will be returned to you within ten (10) days of our receipt of the
Mortgage File, except if the Mortgage Loan has been paid in full, or repurchased
or substituted for a Qualifying Substitute Mortgage Loan (in which case the
Mortgage File will be retained by us permanently) and except if the Mortgage
Loan is being foreclosed (in which case the Mortgage File will be returned when
no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Sale and Servicing Agreement.
-------------------------------------
[Name of Servicer]
By:
----------------------------------
Name:
Title: Servicing Officer
C-1-2
EXHIBIT C-2
REQUEST FOR TEMPORARY RELEASE
Available Upon Request
EXHIBIT D
FORM OF ADVANCE NOTICE
-------------------
Date
[Addressed to Holder of Class
G Certificates]
In connection with that certain Sale and Servicing Agreement (the "Sale
and Servicing Agreement") dated as of March 30, 2005 by and among Financial
Asset Securities Corp., as Depositor, Deutsche Bank National Trust Company, as
Indenture Trustee, GreenPoint Mortgage Funding, Inc, as Servicer and Originator,
Greenwich Capital Financial Products, Inc., as Seller and GreenPoint Mortgage
Funding Trust 2005-HE1, as Issuer (the "Sale and Servicing Agreement"), the
undersigned Servicer hereby requests that you make an advance to the Issuer in
the amount of $___________ (such amount to be deposited into the Reserve Account
no later than [date [[two]] Business Days prior to next Payment Date] in
accordance with Section 2.01(b) of the Sale and Servicing Agreement), in respect
of the following Draw[s]:
Loan no.:
Date of Draw:
Amount of Draw:
[Loan no.:
Date of Draw:
Amount of Draw:]
Total amount of Draws:
Amount of total covered by Principal Remittance Amount:
D-1
Capitalized terms used herein shall have the meanings ascribed to them
in the Sale and Servicing Agreement.
-------------------------------------
[Name of Servicer]
By:__________________________________
Name:
Title:
D-2
EXHIBIT E
LOAN DATA REMITTANCE REPORT
Available Upon Request
E-1
EXHIBIT F
SUBSEQUENT TRANSFER AGREEMENT
F-1
Pursuant to this Subsequent Transfer Instrument, dated ________, 2005
(the "Instrument"), between Financial Asset Securities Corp. as seller (the
"Depositor"), and Deutsche Bank National Trust Company as indenture trustee of
the GreenPoint Mortgage Funding Trust 2005-HE1, Asset-Backed Notes, Series
2005-HE1, as purchaser (the "Indenture Trustee"), and pursuant to the Sale and
Servicing Agreement, dated as of March 30, 2005 (the "Sale and Servicing
Agreement"), among the Depositor, GreenPoint Mortgage Funding, Inc. as
originator and servicer (the "Originator" and the "Servicer"), Greenwich Capital
Financial Products, Inc. as seller (the "Seller"), GreenPoint Mortgage Funding
Trust 2005-HE1 as issuer (the "Trust") and the Indenture Trustee, the Seller,
the Depositor and the Indenture Trustee agree to the sale by the Seller to the
Depositor and the sale by the Depositor to the Indenture Trustee in trust, on
behalf of the Trust, of the Mortgage Loans listed on the attached Schedule of
Mortgage Loans (the "Subsequent Mortgage Loans").
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Sale and Servicing Agreement.
Section 1. CONVEYANCE OF SUBSEQUENT MORTGAGE LOANS.
(a) The Seller, concurrently with the execution and delivery of this
Instrument, does hereby sell, assign, set over, and otherwise convey to the
Depositor, without recourse, all of its right, title and interest in and to each
Subsequent Mortgage Loan, including all amounts due on the Subsequent Mortgage
Loans after the related Subsequent Cut-off Date; and all items with respect to
the Subsequent Mortgage Loans required to be delivered pursuant to Sections 2.01
and 2.05(b) of the Sale and Servicing Agreement. The transfer to the Depositor
by the Seller of the Subsequent Mortgage Loans identified on the Mortgage Loan
Schedule shall be absolute and is intended by the Seller, the Depositor, the
Servicer, the Indenture Trustee and the Certificateholders to constitute and to
be treated as a sale by the Seller to the Depositor.
(b) The Depositor does hereby sell, transfer, assign, set over and
convey to the Indenture Trustee in trust, on behalf of the Trust, without
recourse, all of its right, title and interest in and to the Subsequent Mortgage
Loans, and including all amounts due on the Subsequent Mortgage Loans after the
related Subsequent Cut-off Date, and all items with respect to the Subsequent
Mortgage Loans to be delivered pursuant to Sections 2.01 and 2.05(b) of the Sale
and Servicing Agreement; provided, however that the Depositor reserves and
retains all right, title and interest in and to amounts due on the Subsequent
Mortgage Loans on or prior to the related Subsequent Cut-off Date. The
Depositor, contemporaneously with the delivery of this Agreement, has delivered
or caused to be delivered to the Indenture Trustee each item set forth in
Sections 2.01 and 2.05(b) of the Sale and Servicing Agreement. The transfer to
the Indenture Trustee by the Depositor of the Subsequent Mortgage Loans
identified on the Mortgage Loan Schedule shall be absolute and is intended by
the Depositor, the Servicer, the Indenture Trustee and the Certificateholders to
constitute and to be treated as a sale by the Depositor to the Trust Fund.
(c) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. REPRESENTATIONS AND WARRANTIES; CONDITIONS PRECEDENT.
(a) The Depositor hereby confirms that each of the conditions and the
representations and warranties, as applicable, set forth in Sections 3.01, 3.02
and 3.03 of the Sale and Servicing Agreement are satisfied as of the date
hereof.
(b) The Originator hereby confirms that each of the conditions and the
representations and warranties, as applicable, set forth in Sections 3.01, 3.02
and 3.03 of the Sale and Servicing Agreement are satisfied as of the date
hereof.
(c) All terms and conditions of the Sale and Servicing Agreement are
hereby ratified and confirmed; provided, however, that in the event of any
conflict, the provisions of this Instrument shall control over the conflicting
provisions of the Sale and Servicing Agreement.
Section 3. RECORDATION OF INSTRUMENT.
To the extent permitted by applicable law, this Instrument, 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
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Seller at
the Certificateholders' expense on direction of the related Certificateholders,
but only when accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders or is necessary for the administration or servicing of the
Mortgage Loans.
Section 4. GOVERNING LAW.
This Instrument shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, without giving
effect to principles of conflicts of law.
Section 5. COUNTERPARTS.
This Instrument may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same instrument.
Section 6. SUCCESSORS AND ASSIGNS.
This Instrument shall inure to the benefit of and be binding upon the
Seller, the Depositor and the Indenture Trustee and their respective successors
and assigns.
FINANCIAL ASSET SECURITIES CORP.
By:
---------------------------------------
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY, as
Indenture Trustee for GreenPoint Mortgage
Funding Trust 2005-HE1, Asset-Backed
Notes, Series 2005-HE1
By:
---------------------------------------
Name:
Title:
GREENPOINT MORTGAGE FUNDING, INC.
By:
---------------------------------------
Name:
Title:
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
By:
---------------------------------------
Name:
Title:
Attachments
-----------
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
EXHIBIT G
FORM OF 10-K CERTIFICATION
Certification
1. I have reviewed this annual report on Form 10-K, and
all reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of
[identify issuer (i.e., the name of the specific deal to which this
certification relates rather than just the name of the Depositor)];
2. Based on my knowledge, the information in these
reports, taken as a whole, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
as of the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the trustee by the servicer under the
pooling and servicing , or similar, agreement, for inclusion in these reports is
included in these reports;
4. Based on my knowledge and upon the annual compliance
statement included in the report and required to be delivered to the trustee in
accordance with the terms of the pooling and servicing, or similar, agreement,
and except as disclosed in the reports, the servicer has fulfilled its
obligations under the servicing agreement; and
5. The reports disclose all significant deficiencies
relating to the servicer's compliance with the minimum servicing standards based
upon the report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, as set forth in the pooling and servicing, or
similar, agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties: [Indenture
Trustee] and/or [Servicer].
Date: ____________________
By:____________________________________
Name:
Title:
Date:
G-1
EXHIBIT H
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SERVICER TO THE DEPOSITOR
Re: GreenPoint Mortgage Funding Trust 2005-HE1 (the
"Trust") Asset-Backed Notes, Series 2005-HE1
I, [identify the certifying individual], a [title] of
GreenPoint Mortgage Funding, Inc., as Servicer (the "Servicer"), hereby certify
to Financial Asset Securities Corp. (the "Depositor"), and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. I have reviewed the information required to be
delivered to the Indenture Trustee by the Servicer pursuant to the Sale and
Servicing Agreement (the "Servicing Information");
2. Based on my knowledge, the Servicing Information does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the Servicing Information, in light of the circumstances
under which such information was provided, not misleading as of the last day of
the period covered by the Form 10-K Annual Report;
3. Based on my knowledge, the Servicing Information
required to be provided to the Indenture Trustee by the Servicer has been
provided as required under the Sale and Servicing Agreement;
4. I am responsible for reviewing the activities
performed by the Servicer under the Sale and Servicing Agreement and based upon
my knowledge and the annual compliance review required under the Sale and
Servicing Agreement, and except as disclosed by written notice to the Indenture
Trustee or in the annual compliance statement required to be delivered to the
Indenture Trustee in accordance with the terms of the Sale and Servicing
Agreement (which has been so delivered to the Indenture Trustee), the Servicer
has, for the period covered by the Form 10-K Annual Report, fulfilled its
obligations under the Sale and Servicing Agreement; and
5. The Servicer has disclosed to it's certified public
accountants and the Depositor all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards in accordance with a
review conducted in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the Sale and Servicing
Agreement.
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Sale and Servicing Agreement, dated March 30,
2005 (the "Sale and Servicing Agreement"), among Greenwich Capital Financial
Products, Inc. as seller, the Depositor as depositor, GreenPoint Mortgage
Funding, Inc. as originator and servicer, GreenPoint Mortgage Funding Trust
2005-HE1 as issuer and Deutsche Bank National Trust Company as indenture
trustee.
H-1
GREENPOINT MORTGAGE FUNDING, INC.
By:__________________________________
Name:
Title:
Date:
H-2
EXHIBIT I
FORM OF CERTIFICATION TO BE PROVIDED
BY THE INDENTURE TRUSTEE TO THE DEPOSITOR/SERVICER
Re: GreenPoint Mortgage Funding Trust 2005-HE1 (the
"Trust") Asset-Backed Notes, Series 2005-HE1
I, [identify the certifying individual], a [title] of Deutsche
Bank National Trust Company, as Indenture Trustee of the Trust, hereby certify
to Financial Asset Securities Corp. (the "Depositor"), and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. I have reviewed the annual report on Form 10-K for
the fiscal year [___], and all reports on Form 8-K containing distribution
reports filed in respect of periods included in the year covered by that annual
report, of the Depositor relating to the above-referenced trust;
2. Based on my knowledge, the information in these
distribution reports prepared by the Indenture Trustee, taken as a whole, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the period
covered by that annual report; and
3. Based on my knowledge, the distribution information
required to be provided by the Indenture Trustee under the Sale and Servicing
Agreement is included in these reports.
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Sale and Servicing Agreement, dated March 30,
2005 (the "Sale and Servicing Agreement"), among Greenwich Capital Financial
Products, Inc. as seller, the Depositor as depositor, GreenPoint Mortgage
Funding, Inc. as originator and servicer, GreenPoint Mortgage Funding Trust
2005-HE1 as issuer and Deutsche Bank National Trust Company as indenture
trustee.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
By:__________________________________
Name:
Title:
Date:
I-1
EXHIBIT J
FORM OF MORTGAGE NOTE AND MORTGAGE
Available Upon Request
J-1
SCHEDULE A
MORTGAGE LOAN SCHEDULE
Filed Manually
Sch. A-1