EXECUTION COPY
AMENDED AND RESTATED TRUST AGREEMENT
among
▇▇▇▇▇▇ ABS CORPORATION,
as Depositor,
WILMINGTON TRUST COMPANY,
as Owner Trustee
and
LASALLE BANK NATIONAL ASSOCIATION
as Administrator
Dated as of August 1, 2005
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE3,
ASSET-BACKED CERTIFICATES, SERIES 2005-HE3
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................2
Section 1.02 Other Definitional Provisions.................................6
ARTICLE II
ORGANIZATION
Section 2.01 Name..........................................................6
Section 2.02 Office........................................................7
Section 2.03 Purpose and Powers............................................7
Section 2.04 Appointment of the Owner Trustee..............................7
Section 2.05 Initial Capital Contribution; Declaration of Trust............8
Section 2.06 Issuance of Initial Residual Certificates.....................8
Section 2.07 Liability of the Holder of the Residual Certificates..........8
Section 2.08 Situs of Trust................................................8
Section 2.09 Title to Trust Property.......................................9
Section 2.10 Representations and Warranties of the Depositor...............9
Section 2.11 Designation of REMIC and Interests Therein...................10
Section 2.12 Designation of Start-up Day..................................12
Section 2.13 REMIC Notes Maturity Date....................................13
Section 2.14 Withholding Taxes............................................13
Section 2.15 Tax Returns..................................................13
Section 2.16 Investment Company...........................................14
ARTICLE III
THE RESIDUAL CERTIFICATES AND TRANSFERS OF INTERESTS
Section 3.01 The Residual Certificates....................................14
Section 3.02 Execution, Authentication and Delivery of the Residual
Certificates.................................................15
Section 3.03 Registration of and Limitations on Transfers and Exchanges
of the Residual Certificates ................................15
Section 3.04 Lost, Stolen, Mutilated or Destroyed Residual Certificates...19
Section 3.05 Persons Deemed Certificateholders............................19
Section 3.06 Access to List of Certificateholders' Names and Addresses....20
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Section 3.07 ERISA Restrictions...........................................20
Section 3.08 Maintenance of Office or Agency..............................20
Section 3.09 Certificate Paying Agent.....................................20
Section 3.10 Initial Beneficiary..........................................22
Section 3.11 Distributions on Residual Certificates.......................22
ARTICLE IV
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 4.01 Certificate Account..........................................22
Section 4.02 Application of Trust Funds...................................23
Section 4.03 Method of Payment............................................23
Section 4.04 REMIC Related Covenants......................................23
Section 4.05 Segregation of Moneys; No Interest...........................24
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE; ACTION BY CERTIFICATEHOLDERS
Section 5.01 General Authority............................................24
Section 5.02 General Duties...............................................25
Section 5.03 Action Upon Instruction......................................25
Section 5.04 No Duties Except as Specified under Specified Documents
or in Instructions...........................................26
Section 5.05 Restrictions.................................................26
Section 5.06 Prior Notice to the Holders with Respect to Certain Matters..27
Section 5.07 Action by the Holders with Respect to Bankruptcy.............29
Section 5.08 Restrictions on the Holders' Power...........................29
Section 5.09 Insurer's Rights Regarding Actions, Proceedings or
Investigations...............................................30
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01 Acceptance of Trust and Duties...............................31
Section 6.02 Furnishing of Documents......................................32
Section 6.03 Books and Records............................................33
Section 6.04 Representations and Warranties...............................33
Section 6.05 Reliance; Advice of Counsel..................................34
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PAGE
Section 6.06 Not Acting in Individual Capacity............................35
Section 6.07 Owner Trustee Not Liable for Residual Certificates
or Collateral................................................35
Section 6.08 Owner Trustee May Own Residual Certificates and Notes........36
Section 6.09 Licenses.....................................................36
Section 6.10 Doing Business in Other Jurisdictions........................36
Section 6.11 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act...........................................36
ARTICLE VII
INDEMNIFICATION AND COMPENSATION
Section 7.01 Trust Expenses...............................................36
Section 7.02 Indemnification..............................................37
Section 7.03 Compensation.................................................37
Section 7.04 Lien on Trust Estate.........................................37
ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01 Termination of Agreement.....................................37
Section 8.02 Additional Termination Requirements..........................38
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01 Eligibility Requirements for Owner Trustee...................39
Section 9.02 Resignation or Removal of Owner Trustee......................39
Section 9.03 Successor Owner Trustee......................................40
Section 9.04 Merger or Consolidation of Owner Trustee.....................41
Section 9.05 Appointment of Co-Trustee or Separate Trustee................41
ARTICLE X
MISCELLANEOUS
Section 10.01 Supplements and Amendments...................................42
Section 10.02 No Legal Title to Trust Estate in Holders....................44
Section 10.03 Pledge of Collateral by Owner Trustee is Binding.............44
Section 10.04 Limitations on Rights of Others..............................44
Section 10.05 Notices......................................................44
Section 10.06 Severability.................................................45
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PAGE
Section 10.07 Separate Counterparts........................................45
Section 10.08 Successors and Assigns.......................................45
Section 10.09 Headings.....................................................45
Section 10.10 Governing Law................................................45
Section 10.11 No Petition..................................................45
Section 10.12 No Recourse..................................................46
ARTICLE XI
OFFICERS
Section 11.01 Appointment of Officers......................................46
Section 11.02 Officers to Provide Information to the Owner Trustee.........46
Exhibit A-1 Form of Class B Certificate
Exhibit A-2 Form of Class L Certificate
Exhibit A-3 Form of Class R Certificate
Exhibit B [Reserved]
Exhibit C Form of Certificate of Trust
Exhibit D-1 Form of Rule 144A Investment Letter
Exhibit D-2 Form of Non-Rule 144A Investment Letter
Exhibit E Form of Certificate of Non-Foreign Status
Exhibit F-1 Form of Class [L][R] Certificate Transfer Affidavit
(Transferor)
Exhibit F-2 Form of Class [L][R] Certificate Transfer Affidavit
(Transferee)
Exhibit G Owner Trustee Fee Letter Agreement
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This AMENDED AND RESTATED TRUST AGREEMENT, dated as of August 1, 2005, is
by and among ▇▇▇▇▇▇ ABS CORPORATION, a Delaware corporation (the "Depositor"),
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as owner trustee (the
"Owner Trustee"), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, as administrator (the "Administrator"), and amends and restates in
its entirety that certain Trust Agreement, dated as of August 1, 2005, between
the Depositor and the Owner Trustee.
WHEREAS, the Trust was formed pursuant to a Trust Agreement, dated as of
August 1, 2005, among the Depositor and the Owner Trustee.
WHEREAS, pursuant to the Transfer and Servicing Agreement entered into
simultaneously with this Trust Agreement, the Depositor intends to sell,
transfer and assign to a Delaware statutory trust created hereunder certain
Mortgage Loans and related assets (collectively, the "Collateral"), which
statutory trust will then pledge such Collateral under an indenture in order to
secure the issuance of its Asset-Backed Notes, Series 2005-HE3 Class A, Class M1
and Class M2 Notes (the "Notes"), the net proceeds of which would be applied
toward the purchase of the Collateral.
WHEREAS, the Depositor, the Owner Trustee and the Administrator desire to
enter into this Agreement in order to effect the foregoing.
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For all purposes of this Agreement, the following
terms shall have the meanings set forth below.
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.
Agreement or Trust Agreement: This Trust Agreement and any amendments or
modifications hereof.
Authorized Officer: With respect to the Trust, any officer of the Owner
Trustee who is authorized to act for the Owner Trustee in matters relating to
the Trust and who is identified on the list of Authorized Officers delivered by
the Owner Trustee to the Indenture Trustee on the
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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 Trust 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).
Bank: Wilmington Trust Company, in its individual capacity and not as Owner
Trustee under this Agreement.
Certificate: Any Residual Certificate.
Certificate of Trust: The Certificate of Trust to be filed by the Owner
Trustee for the Trust pursuant to Section 3810(a) of the Delaware Trust Statute
in the form of Exhibit C hereto.
Certificate Paying Agent: Initially, the Administrator, in its capacity as
Certificate Paying Agent, or any successor to the Administrator in such
capacity.
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, the Administrator, in its capacity as
Certificate Registrar, or any successor to the Administrator in such capacity.
Certificateholder or Holder: The Person in whose name a Residual
Certificate is registered in the Certificate Register.
Class B Certificate: A Residual Certificate, substantially in the form of
Exhibit A-1 hereto.
Class L Certificate: A Residual Certificate, substantially in the form of
Exhibit A-2 hereto.
Class R Certificate: A Residual Certificate, substantially in the form of
Exhibit A-3 hereto.
Collateral: As defined in the Indenture.
Corporate Trust Office: 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 and, so long as the Class A Notes are Outstanding or any
Reimbursement
3
Amounts remain due and owing to the Insurer, the Insurer, 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 and, so long as the Class A Notes are Outstanding or any
Reimbursement Amounts remain due and owing to the Insurer, the Insurer) and with
respect to the Certificate Registrar, the principal office of the Certificate
Registrar at which at any particular time its corporate trust business shall be
administered, which office is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Global Securities and Trust Services
-GreenPoint 2005-HE3, or at such other address as the Certificate Registrar may
designate from time to time by notice to the Noteholders, the Trust and, so long
as the Class A Notes are Outstanding or any Reimbursement Amounts remain due and
owing to the Insurer, the Insurer, or the principal corporate trust office of
any successor Certificate Registrar at the address designated by such successor
Certificate Registrar by notice to the Noteholders and the Trust.
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.
Depositor: ▇▇▇▇▇▇ ABS Corporation, a Delaware corporation.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Expenses: The meaning specified in Section 7.02.
Indenture: The indenture dated as of August 1, 2005, between the Issuer and
the Indenture Trustee, as such may be amended or supplemented from time to time.
Initial Holder: ▇▇▇▇▇▇ Pass-Through Securities Inc., or any successor in
interest.
Latest Possible Maturity Date: The Payment Date in September 2030.
▇▇▇▇▇▇ Brothers: ▇▇▇▇▇▇ Brothers Inc., or any successor in interest.
Master Servicer: GreenPoint Mortgage Funding, Inc., or any successor in
interest.
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.
Non-U.S. Person: Any person other than a "United States person" as defined
in Section 7701(a)(30) of the Code.
Note: Any Note designated as a "Class A Asset-Backed Note," a "Class M1
Asset-Backed Note" or a "Class M2 Asset-Backed Note" on the face thereof.
Noteholder: A Person in whose name a Note is registered on the Note
Register.
Note Register: As defined in the Indenture.
Officer: Those officers of the Trust referred to in Article XI.
Opinion of Counsel: One or more written opinions of counsel who may, except
as otherwise expressly provided in this Agreement, be employees of or counsel to
the Depositor and
4
who shall be satisfactory to the Owner Trustee and the Administrator, which
opinion shall be addressed to the Owner Trustee and the Administrator.
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.
Ownership Interest: As to any Class L or Class R Certificate, any ownership
or security interest in such Class L or Class R Certificate, including any
interest in such Class L or Class R Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
Percentage Interest: With respect to any Residual Certificate, the
percentage set forth on the face thereof.
Permitted Transferee: Any Person other than (i) a "disqualified
organization," within the meaning of section 860E(e)(5) of the Code, 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.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to real
estate mortgage investment conduits, which appear at Section 860A through 860G
of the Code, and related provisions, and regulations promulgated thereunder, as
the foregoing may be in effect from time to time, as well as provisions of
applicable state laws.
Residual Certificates: The Class B, Class L and Class R Certificates
evidencing, in the aggregate, the beneficial ownership interest of the Residual
Certificateholders in the Trust.
Responsible Officer: 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.
Secretary of State: The Secretary of State of the State of Delaware.
Seller: ▇▇▇▇▇▇ Brothers Holdings Inc.
Similar Law: The meaning specified in Section 3.07.
Single Certificate: A Residual Certificate representing a 100% Percentage
Interest.
5
Transfer and Servicing Agreement: The Transfer and Servicing Agreement
dated as of August 1, 2005, by and among the Trust, the Depositor, as seller,
the Master Servicer and the Indenture Trustee, as such may be amended or
supplemented from time to time.
Trust: The trust established pursuant to this Agreement which shall carry
on its business operations under the name of "GreenPoint Mortgage Funding Trust
2005-HE3."
Section 1.02 Other Definitional Provisions. Capitalized terms used herein
and not defined herein shall have the same meanings assigned to them in the
Transfer and Servicing Agreement or if not so defined therein, then as defined
in the Indenture and the rules of construction therein shall apply herein.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means
such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
ORGANIZATION
Section 2.01 Name. The trust continued by this Agreement shall be referred
to as "GreenPoint Mortgage Funding Trust HE-3" in which name the Owner Trustee
and the Officers
6
may conduct the activities contemplated hereby, including the making and
executing of contracts and other instruments on behalf of the Trust and ▇▇▇ and
be sued.
Section 2.02 Office. The principal office of the Trust shall be in care of
the Owner Trustee at its Corporate Trust Office. The Trust shall also have an
office in care of the Administrator at its Corporate Trust Office.
Section 2.03 Purpose and Powers. The Trust shall have the power and
authority to engage in any of the following activities:
(a) to issue the Notes from time to time pursuant to the Indenture and
the Residual Certificates pursuant to this Agreement and to sell, transfer
and exchange such Notes and such Residual Certificates;
(b) with the proceeds of the sale of the Notes and the Residual
Certificates, to pay the organizational, start-up and transactional
expenses of the Trust and to pay the balance of the Net Proceeds from the
Notes to the Depositor in consideration of the transfer to the Trust of the
Collateral;
(c) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture on behalf of the Noteholders and for the
benefit of the Insurer and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Transfer and Servicing
Agreement any portion of the Collateral released from the lien of, and
remitted to the Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Operative
Agreements to which it is to be a party;
(e) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(f) subject to compliance with the Operative Agreements, to engage in
such other activities as may be required in connection with conservation of
the Trust Estate and the making of distributions and payments, as
applicable, to the Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Operative Agreements.
Section 2.04 Appointment of the Owner Trustee. The Depositor hereby
appoints the Bank to act as Owner Trustee of the Trust effective as of the date
hereof to have all the rights, powers and duties set forth herein with respect
to accomplishing the purposes of the Trust.
The Owner Trustee is hereby authorized to execute this Agreement, the
Indenture, the Administration Agreement, the Transfer and Servicing Agreement
and any other Operative
7
Agreement on behalf of the Trust. The Owner Trustee is hereby authorized to take
all actions required or permitted to be taken by it in accordance with the terms
of this Agreement.
Section 2.05 Initial Capital Contribution; Declaration of Trust.
(a) The Depositor hereby sells, assigns, transfers, conveys and sets
over to the Trust, as of the date hereof, the sum of $1 in exchange for
which the Owner Trustee shall issue to the Depositor the Class L
Certificate. The Owner Trustee hereby acknowledges receipt in trust from
the Depositor, as of the Closing Date, of the foregoing contribution which
shall constitute the initial corpus of the Trust Estate and shall be
deposited in the Certificate Account. The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee. The Depositor's payment of such
amounts will not increase the Class Principal Balance of the Class L
Certificates.
(b) The Owner Trustee hereby declares that it will hold the Trust
Estate in trust upon and subject to the conditions set forth herein for the
use and benefit of the Certificateholders, subject to the obligations of
the Trust under the Operative Agreements. It is the intention of the
parties hereto that the Trust constitutes a statutory trust under the
Delaware Trust Statute and that this Agreement constitutes the governing
instrument of such statutory trust. No later than the Closing Date, the
Owner Trustee shall cause the filing of the Certificate of Trust with the
Secretary of State. Except as otherwise provided in this Agreement, the
rights of the Certificateholders will be those of beneficial owners of the
Trust.
Section 2.06 Issuance of Initial Residual Certificates. Upon the formation
of the Trust by the initial contribution by the Depositor pursuant to Section
2.05, the Owner Trustee will issue the Class L Certificate to the Initial
Holder.
Section 2.07 Liability of the Holder of the Residual Certificates. Each
Certificateholder shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of Delaware.
Section 2.08 Situs of Trust.
The Trust will be located and administered in the State of Delaware. All
bank accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in the States of Delaware, New York, Illinois or the jurisdiction where
the Indenture Trustee maintains bank accounts with respect to collections on the
Collateral (which is currently Illinois). The only office of the Trust will be
as described in Section 2.02 hereof. The Trust shall not have any employees;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
will be received by the Trust only in Delaware, New York, the jurisdiction in
which the Indenture Trustee maintains the Certificate Account or such other
jurisdiction designated by the Depositor, and payments will be made by the Trust
only from Delaware, New York, the jurisdiction in which the Indenture Trustee
maintains the Certificate Account or such other jurisdiction designated by the
Depositor.
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Section 2.09 Title to Trust Property.
(a) Subject to the Indenture, title to all of the Trust Estate shall
be vested at all times in the Trust as a separate legal entity until this
Agreement terminates pursuant to Article VIII hereof; provided, however,
that if the laws of any jurisdiction require that title to any part of the
Trust Estate be vested in the trustee of the Trust, then title to that part
of the Trust Estate shall be deemed to be vested in the Owner Trustee or
any co-trustee or separate trustee, as the case may be, appointed pursuant
to Article IX of this Agreement.
(b) The Certificateholders shall have beneficial but not legal title
to any part of the Trust Estate. No transfer by operation of law or
otherwise of any interest of the Certificateholders shall operate to
terminate this Agreement or the trust created hereunder or entitle any
transferee to an accounting or to the transfer to it of any part of the
Trust Estate.
Section 2.10 Representations and Warranties of the Depositor. The Depositor
hereby represents and warrants to the Owner Trustee, the Insurer and the
Administrator as of the Closing Date, as follows:
(a) The Depositor is a Delaware corporation validly existing and in
good standing. The Depositor has the power and authority to execute and
deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Depositor and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary action of the Depositor;
this Agreement evidences the valid, binding and enforceable obligation of
the Depositor; and all requisite action has been taken by the Depositor to
make this Agreement valid, binding and enforceable upon the Depositor in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally or the application of equitable principles in
any proceeding, whether at law or in equity.
(b) The consummation of the transactions contemplated by this
Agreement will not result in (i) the breach of any terms or provisions of
the Depositor's certificate of incorporation or bylaws, (ii) the breach of
any term or provision of, or conflict with or constitute a default under or
result in the acceleration of any obligation under, any material agreement,
indenture or loan or credit agreement or other material instrument to which
the Depositor, or its property is subject, or (iii) the violation of any
law, rule, regulation, order, judgment or decree to which the Depositor or
its respective property is subject.
(c) To the Depositor's best knowledge, it is not in default with
respect to any order or decree of any court or any order, regulation or
demand of any federal, state, municipal or other governmental agency, which
default might have consequences that would materially and adversely affect
the condition (financial or otherwise) or operations
9
of the Depositor or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
(d) To the Depositor's best knowledge, there are no proceedings or
investigations pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (A) asserting the
invalidity of this Agreement, (B) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement.
Section 2.11 Designation of REMIC and Interests Therein.
(a) For purposes of the REMIC Provisions: the Trust Estate shall be
treated as comprising two segregated accounts each of which will be a real
estate mortgage investment conduit (each a "REMIC" or, in the alternative,
the "Lower Tier REMIC" and the "Upper Tier REMIC"); each of the Notes and
the Class B Certificates shall represent ownership of a regular interest in
the Upper Tier REMIC; the Class L Certificate shall represent the sole
class of residual interest in the Lower Tier REMIC; and the Class R
Certificate represents ownership of the sole class of residual interest in
the Upper Tier REMIC.
(b) For purposes of the REMIC provisions the Lower Tier REMIC shall
hold as its assets the Trust Estate and shall be deemed to have issued the
Class L Certificate and the uncertificated interests in the Lower Tier
REMIC (each, a "Lower-Tier Interest"). The following table describes the
designation, interest rate, and initial principal balance for the Class L
Certificate and each Lower-Tier Interest and shows the Corresponding Class
of Notes.
Lower-Tier Lower-Tier Interest Initial Principal Corresponding Class
Designation Rate Balance of Notes
--------------------------------------------------------------------------------
LT-A (1) $208,559,500.00 Class A
LT-M1 (1) $2,277,000.00 Class M1
LT-M2 (1) $3,578,000.00 Class M2
LT-Q (1) $214,454,500.00 N/A
Class L Certificate (2) $ 0.00 N/A
------------------------------
(1) The interest rate with respect to any Payment Date (and the related
Interest Accrual Period) for each of these Lower-Tier Interests is the
Maximum Rate.
(2) The interest rate with respect to any Payment Date (and the related
Interest Accrual Period) during the Managed Amortization Period for the
Class L Certificates is the Class A Note Rate for such Payment Date, and
for each Payment Date (and the related Interest Accrual Period) thereafter,
the Maximum Rate.
On each Payment Date, for purposes of the REMIC provisions:
(1) The fees and expenses of the Trust paid from amounts on
deposit in the Distribution Account pursuant to Section 5.03(b) of the
Transfer and
10
Servicing Agreement shall be treated as having been paid as an expense
of the Lower Tier REMIC;
(2) During the Managed Amortization Period, amounts remaining in
the Distribution Account after the payments under priority (1) above
shall be paid on the Class L Certificate to the extent of any interest
accrued thereon at the rate described above;
(3) Amounts remaining in the Distribution Account after the
payments under priorities (1) and (2) above shall be paid on each of
the Lower-Tier Interests at the rates described above, pro rata, based
on the amount of interest accrued on each such Lower-Tier Interest for
the related Interest Accrual Period, provided however, that interest
that accrues on the LT-Q Interest shall be deferred in an amount
necessary to make the principal distributions described under priority
(5) below for such Payment Date. Any interest so deferred shall itself
bear interest at the interest rate for the LT-Q Interest;
(4) During the Managed Amortization Period, amounts remaining in
the Distribution Account after the payments under priorities (1), (2),
and (3) above shall be paid on the Class L Certificate until its Class
Principal Balance is reduced to zero;
(5) Amounts remaining in the Distribution Account after the
payments under priorities (1), (2), (3), and (4) above shall be paid
on the ▇▇-▇, ▇▇-▇▇, and LT-M2 Lower-Tier Interests until the principal
balance of each such Lower-Tier Interest equals 50% of the Note
Principal Amount of the Corresponding Class of Notes immediately after
such Payment Date;
(6) Amounts remaining in the Distribution Account after the
payments under priorities (1), (2), (3), (4), and (5) above shall be
paid -
i. During the Managed Amortization Period, on the LT-Q
Lower-Tier Interest until its principal balance is reduced
to zero, and
ii. During the Rapid Amortization Period, first, to the LT-Q
Lower-Tier Interest until the its principal balance equals
the sum of (A) 50% of the Note Principal Amount of the Notes
immediately after such Payment Date plus (B) the excess of
(I) the Overcollateralization Amount immediately after such
Payment Date over (II) the Additional Balance Advance Amount
immediately after such Payment Date, and then, to the Class
L Certificate, any remaining amount.
On each Payment Date, Realized Loss Amounts shall be allocated to and
applied in reduction of the principal balance of the Lower-Tier Interests and
the Class L Certificate in the same manner in which principal is distributed on
the Lower-Tier Interests pursuant to priorities (5) and (6) above.
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(c) For purposes of the REMIC Provisions, the Upper Tier REMIC
shall hold as assets the Lower-Tier Interests and shall issue the
interests described in the table below, each of which will relate to a
particular Class of Notes or Certificates. The following table
describes the designation , interest rate, initial principal balance
and Corresponding Class of Notes or Certificates for each interest.
Corresponding Class
Upper-Tier Upper-Tier Interest Initial Principal of Notes or
Designation Rate Balance Certificates
--------------------------------------------------------------------------------
UT-A (1) $ 417,199,000.00 Class A
UT-M1 (1) $ 4,554,000.00 Class ▇▇
▇▇-▇▇ (1) $ 7,156,000.00 Class M2
UT-B (2) (Initial O/C) B
Class R (3) (3) R
------------------------------
(1) The interest rate with respect to any Payment Date (and the related
Interest Accrual Period) for each of these Upper-Tier Interests is the Note
Rate applicable to the Corresponding Class of Notes for the Payment Date.
(2) The UT-B Upper-Tier Interest shall comprise two components, each of which
is hereby designated as a regular interest in the Upper Tier REMIC. The
first component is a principal-only component and represents the right to
receive distributions from the Upper Tier REMIC in an amount equal to the
Overcollateralization Amount determined as of the Closing Date. The second
component is an interest-only component and represents the right to receive
on each Payment Date interest accrued on the Lower-Tier Interests at a per
annum rate equal to the excess, if any, of (i) the Maximum Rate over (ii)
the product of (a) two multiplied by (b) the weighted average of the
interest rates for such payment date on the Lower-Tier Interests, weighted
on the basis of their principal balances as of the first day of the related
Interest Accrual Period (after taking into account payments made on such
date) and computed for this purpose by subjecting the interest rate on the
LT-Q Lower Tier Interest to a cap of 0.00% and subjecting the interest rate
on each of the ▇▇-▇, ▇▇-▇▇, and LT-M2 Lower-Tier Interests to a cap equal
to the Note Rate in effect for such Payment Date on the Corresponding Class
of Notes.
(3) For purposes of the REMIC Provisions, the R Upper-Tier Interest is the sole
residual interest in the Upper Tier REMIC. It does not have an interest
rate or a principal balance.
On each Payment Date, the payments made on each Upper-Tier Interest
shall correspond to the payments required to be made on the Corresponding
Class of Notes or Certificates under the terms of the Transfer and
Servicing Agreement of this Agreement, provided, however, that any payments
made on any Class of Notes with respect to Deferred Interest shall be
treated as payments made by the Upper Tier REMIC in respect of the UT-B
Interest, and therefore, to the Holder of the Class B Certificates, and
then paid by the Holder of the Class B Certificates to the Holders of the
Notes. For federal income tax purposes, the rights of the Holders of the
Notes to receive payments of Deferred Interest shall be treated as
contractual rights to receive payments under a notional principal contract
written by the Holder of the Class B Certificates in favor of the Holders
of the Notes. For federal income tax reporting purposes, this notional
principal contract shall be deemed to have a value of zero on the Closing
Date.
Section 2.12 Designation of Start-up Day. The Closing Date is hereby
designated as the "start-up day" of each REMIC within the meaning of Section
860G(a)(9) of the Code.
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Section 2.13 REMIC Notes Maturity Date. Solely for purposes of satisfying
Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the "latest possible
maturity date" of each Lower-Tier Interest and each Upper-Tier Interest and,
therefore, each Class of Notes and the Class B Certificates, is the Latest
Possible Maturity Date.
Section 2.14 Withholding Taxes. In the event that any withholding tax is
imposed under federal, state, or local law on the Trust's payment (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to such Certificateholder in accordance with this
Section 2.14. The Administrator is hereby authorized and directed to retain in
the Certificate Account from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Trust (but such authorization shall not prevent the Administrator
from contesting any such tax in appropriate proceedings, and withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings). The
Certificate Registrar will provide the Administrator with a statement indicating
the amount of any such withholding tax. The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash distributed
to such Certificateholder at the time it is withheld by the Administrator and
remitted to the appropriate taxing authority from the Distribution Account at
the direction of the Administrator. If there is a possibility that withholding
tax is payable with respect to a distribution, the Administrator may in its sole
discretion direct the Administrator to withhold such amounts in accordance with
this paragraph. In the event that a Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee and the Administrator
shall reasonably cooperate with such Certificateholder in making such claim so
long as such Certificateholder agrees in writing to reimburse the Owner Trustee
and the Administrator for any out-of-pocket expenses incurred.
Section 2.15 Tax Returns.
(a) For federal income tax purposes, each of the REMICs created
hereunder shall have a calendar year taxable year and shall maintain its
books on the accrual method of accounting.
(b) The Administrator shall prepare or cause to be prepared and shall
file or cause to be filed with the Internal Revenue Service and applicable
state or local tax authorities income tax information returns for each
taxable year with respect to each REMIC containing such information at the
times and in the manner as may be required by the Code or state or local
tax laws, regulations, or rules, and shall furnish or cause to be furnished
to the REMICs and the Certificateholders the schedules, statements or
information at such times and in such manner as may be required thereby.
Within thirty (30) days of the Closing Date, the Administrator shall
furnish or cause to be furnished to the Internal Revenue Service, on Form
8811 or as otherwise required by the Code, the name, title, address and
telephone number of the person that Holders of the Securities may contact
for tax information relating thereto, together with such additional
information at the time or times and in the manner required by the Code.
Such federal, state, or local income tax or information returns shall be
signed by the Administrator, or such other Person as may be required to
sign such returns by the Code or state or local tax laws, regulations, or
rules.
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(c) In the first federal income tax return of each REMIC for their
short taxable year ending December 31, 2005, REMIC status shall be elected
for such taxable year and all succeeding taxable years.
(d) The Administrator shall maintain or cause to be maintained such
records relating to each REMIC, including but not limited to the income,
expenses, assets and liabilities of the Trust, and the fair market value
and adjusted basis of the Trust Estate and assets determined at such
intervals as may be required by the Code, as may be necessary to prepare
the foregoing returns, schedules, statements or information.
(e) If any tax is imposed on "prohibited transactions" (as defined in
Section 860F(a)(2) of the Code) of each REMIC created hereunder, on any
contribution to any REMIC created hereunder after the Closing Date pursuant
to Section 860G(d) of the Code, or any other tax is imposed, including any
minimum tax imposed on any REMIC created hereunder pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the
Administrator, if any such other tax arises out of or results from
negligence of the Administrator in the performance of any of its
obligations under this Agreement, (ii) the Depositor, in the case of any
such minimum tax, if such tax arises out of or results from a breach by the
Depositor of any of its obligations under this Agreement, or (iii) in all
other cases, or if the Administrator or the Depositor fails to honor its
obligations under the preceding clauses (i) or (ii), any such tax will be
paid with amounts otherwise to be distributed to the Residual
Certificateholders pursuant to Section 5.03(b)(xv) of the Transfer and
Servicing Agreement.
Section 2.16 Investment Company. None of the Depositor, the Administrator
and any holder of a Residual Certificate shall take any action which would cause
the Trust to become an "investment company" which would be required to register
under the Investment Company Act of 1940, as amended.
ARTICLE III
THE RESIDUAL CERTIFICATES AND TRANSFERS OF INTERESTS
Section 3.01 The Residual Certificates. The Residual Certificates shall
initially be issued as three certificates in definitive, fully registered form
and shall initially be registered in the name of the Initial Holder. The Class B
Certificate shall be issued in minimum denominations of 1% Percentage Interest
in such Certificates. The Class L Certificates shall not be issued in authorized
denominations of less than a 100% Percentage Interest in such Certificates. The
Class R Certificates shall not be issued in authorized denominations of less
than a 100% Percentage Interest in such Certificates. The Residual Certificates
shall be executed on behalf of the Trust by manual or facsimile signature of an
Authorized Officer of the Owner Trustee and authenticated in the manner provided
in Section 3.02. A Residual Certificate bearing the manual signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Agreement, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Residual Certificate or did not hold such offices at the date
of authentication and delivery of such Residual Certificate.
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A Person shall become a Certificateholder and shall be entitled to the rights
and subject to the obligations of a Certificateholder hereunder upon such
Person's acceptance of a Residual Certificate duly registered in such Person's
name pursuant to Section 3.03.
Section 3.02 Execution, Authentication and Delivery of the Residual
Certificates. Concurrently with the sale of the Collateral to the Trust pursuant
to the Transfer and Servicing Agreement, the Owner Trustee shall cause the
Residual Certificates issued hereunder to be executed on behalf of the Trust and
authenticated and delivered to the Initial Holder. The Depositor hereby directs
the Owner Trustee to so deliver the Residual Certificates. The Residual
Certificates shall not entitle its Holder to any benefits under this Agreement
or be valid for any purpose unless there shall appear on such Residual
Certificate a certificate of authentication substantially in the form set forth
in Exhibits ▇-▇, ▇-▇ and A-3 hereto, respectively, executed by the Owner Trustee
or the Administrator, as the Owner Trustee's authenticating agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Residual Certificate shall have been duly authenticated and delivered hereunder.
A Residual Certificate shall be dated the date of its authentication.
Section 3.03 Registration of and Limitations on Transfers and Exchanges of
the Residual Certificates. (a) The Certificate Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of the
Residual Certificates and of transfers and exchanges of the Residual
Certificates as herein provided; provided, however, that no Class R Certificate
or Class L Certificate shall be issued in any such transfer and exchange
representing less than a 100% Percentage Interest in such Certificate. The
Administrator shall be the initial Certificate Registrar. If the Certificate
Registrar resigns or is removed, the Owner Trustee, with the consent of the
Depositor, shall appoint a successor Certificate Registrar.
Subject to satisfaction of the conditions set forth below, upon
surrender for registration of transfer of a Residual Certificate at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall execute, authenticate and deliver (or cause the Administrator as its
authenticating agent to authenticate and deliver), in the name of the
designated transferee, a new Residual Certificate evidencing the Percentage
Interest of the Residual Certificate so surrendered and dated the date of
authentication by the Owner Trustee or the Certificate Registrar.
Every Residual Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Residual Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of the Residual Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be
15
imposed in connection with any transfer or exchange of the Residual
Certificates or any other expense arising as a result of any registration
of transfer or exchange.
Except for the initial issuance of the Class L and Class R
Certificates on the Closing Date, no Person shall become a
Certificateholder of Class L or Class R Certificates until it shall
establish its non-foreign status by submitting to the Certificate Paying
Agent an IRS Form W-9 and the Certificate of Non-Foreign Status set forth
in Exhibit E hereto.
The preceding provisions of this Section notwithstanding, the Owner Trustee
shall not make and the Certificate Registrar shall not register any transfer or
exchange of a Class L Certificate or a Class R Certificate for a period of 15
days preceding the due date for any payment with respect to such Residual
Certificates.
(b) The Residual Certificates shall be assigned, transferred,
exchanged, pledged, financed, hypothecated or otherwise conveyed
(collectively, for purposes of this Section 3.03 and any other Section
referring to the Residual Certificates, "transferred" or a "transfer") only
in accordance with this Section 3.03.
(c) No transfer of a Residual Certificate shall be made unless such
transfer is exempt from the registration requirements of the Securities Act
and any applicable state securities laws or is made in accordance with the
Securities Act and such laws. Each prospective transferee of a Residual
Certificate, other than the Initial Holder, shall represent and warrant, in
writing, to the Owner Trustee and the Certificate Registrar and any of
their respective successors that:
Such Person is (A) a "qualified institutional buyer" as defined in Rule
144A under the Securities Act of 1933, as amended (the "Securities Act"),
(such Person shall execute an investment letter in the form attached hereto
as Exhibit D-1 to such effect) and is aware that the seller of such
Residual Certificate may be relying on the exemption from the registration
requirements of the Securities Act provided by Rule 144A and is acquiring
such Residual Certificate for its own account or for the account of one or
more qualified institutional buyers for whom it is authorized to act or (B)
in the case of the Class B Certificates, an "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act (such
Person shall execute an investment letter in the form attached hereto as
Exhibit D-2 to such effect) and is aware that the seller of such Residual
Certificate is relying on an exemption from the registration requirements
of the Securities Act and is acquiring such Residual Certificate for its
own account.
Such Person understands that such Residual Certificate has not been and
will not be registered under the Securities Act and may be offered, sold,
pledged or otherwise transferred only to a person (A) whom the seller
reasonably believes is a "qualified institutional buyer" or (B) in the case
of the Class B Certificates, an "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of the Securities Act, in each case in a
transaction exempt from registration under the Securities Act and in
accordance with any applicable securities laws of any state of the United
States.
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Such Person shall comply with the provisions of Section 3.07, as
applicable, relating to the ERISA restrictions with respect to the
acceptance or acquisition of such Residual Certificate.
(d) For so long as any of the Residual Certificates are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
the Administrator agrees to cooperate with the Depositor to provide to any
Certificateholders and to any prospective purchaser of Residual
Certificates designated by such Certificateholder, upon the request of such
Certificateholder or prospective purchaser, any information required to be
provided to such holder or prospective purchaser to satisfy the condition
set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable,
out-of-pocket expenses incurred by the Administrator in providing such
information shall be reimbursed by the Depositor.
(e) Each prospective transferee of any Class L or Class R Certificate,
other than the Initial Holder, shall execute and deliver the Certificate of
Non-Foreign Status (in the form attached hereto as Exhibit E).
(f) Each Person that has or that acquires any Ownership Interest in
any Class L or Class R Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably appointed the Certificate
Registrar or its designee as its attorney-in-fact to negotiate the terms of
any mandatory sale under clause (v) below and to execute all instruments of
transfer and to do all other things necessary in connection with any such
sale, and the rights of each Person acquiring any Ownership Interest in the
Class L or Class R Certificates are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class L or Class R Certificate shall be a Permitted Transferee and
shall promptly notify the Owner Trustee and the Certificate Registrar
of any change or impending change in its status as a Permitted
Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class L
or Class R Certificate unless such Ownership Interest is a pro rata
undivided interest.
(iii) No Ownership Interest in a Class L or Class R Certificate
may be transferred without the express written consent of the Owner
Trustee, the Depositor and the Certificate Registrar. In connection
with any proposed transfer of any Ownership Interest in a Class L or
Class R Certificate, the Owner Trustee shall as a condition to such
consent, require delivery to it, the Depositor and the Certificate
Registrar in form and substance satisfactory to it, of each of the
following:
(A) an affidavit in the form of Exhibit F-1 hereto from the
proposed transferor, and an affidavit in the form of Exhibit F-2
hereto from the proposed transferee to the effect that such
transferee is a
17
Permitted Transferee and that it is not acquiring its Ownership
Interest in the Class L or Class R Certificate that is the
subject of the proposed transfer as a nominee, trustee or agent
for any Person who is not a Permitted Transferee; and
(B) a covenant of the proposed transferee to the effect that
the proposed transferee agrees to be bound by and to abide by the
transfer restrictions applicable to the Class L or Class R
Certificate.
(iv) Any attempted or purported transfer of any Ownership
Interest in a Class L or Class R Certificate in violation of the
provisions of this Section 3.03 shall be absolutely null and void and
shall vest no rights in the purported transferee. If any purported
transferee shall, in violation of the provisions of this Section 3.03,
become a Holder of a Class L or Class R Certificate, then the prior
Holder of such Class L or Class R Certificate that is a Permitted
Transferee shall, upon discovery that the registration of transfer of
such Class L or Class R Certificate was not in fact permitted by this
Section 3.03, be restored to all rights as Holder thereof retroactive
to the date of registration of transfer of such Class L or Class R
Certificate. The Owner Trustee and the Certificate Registrar shall be
under no liability to any Person for any registration of transfer of
any Class L or Class R Certificate that is in fact not permitted by
this Section 3.03 or for making any distributions due on such Class L
or Class R Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this
Agreement so long as the Owner Trustee, the Depositor and the
Certificate Registrar received all affidavits and covenants with
respect to such transfer provided for under this Section 3.03. The
Certificate Paying Agent, on behalf of the Trust, shall be entitled to
recover from any Holder of a Class L or Class R Certificate that was
in fact not a Permitted Transferee at the time such distributions were
made all distributions made on such Class L or Class R Certificate.
Any such distributions so recovered by the Certificate Paying Agent
shall be distributed and delivered by the Certificate Paying Agent to
the prior Holder of such Residual Certificate that is a Permitted
Transferee.
(v) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Class L or Class R Certificate in violation of
the restrictions in this Section 3.03, then the Certificate Registrar
shall have the right but not the obligation, without notice to the
Holder of such Class L or Class R Certificate or any other Person
having an Ownership Interest therein, to notify the underwriter to
arrange for the sale of such Class L or Class R Certificate. The
proceeds of such sale, net of commissions (which may include
commissions payable to the Certificate Registrar or its affiliates),
expenses and taxes due, if any, will be remitted by the Certificate
Paying Agent to the previous Holder of such Class L or Class R
Certificate that is a Permitted Transferee, except that in the event
that the Certificate Paying Agent determines that the Holder of such
Class L or Class R Certificate may be liable for any amount due under
this Section 3.03 or any other provisions of this Agreement, the
Certificate Paying Agent may withhold a corresponding amount from such
remittance as security for
18
such claim. The terms and conditions of any sale under this clause (v)
shall be determined in the sole discretion of the Certificate
Registrar and the Certificate Paying Agent, and neither such Person
shall not be liable to any Person having an Ownership Interest in a
Class L or Class R Certificate as a result of its exercise of such
discretion.
(vi) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Class L or Class R Certificate in violation of
the restrictions in this Section 3.03, then the Administrator will
provide to the Internal Revenue Service, and to the persons specified
in Section 860E(e)(3) of the Code, information needed to compute the
tax imposed under Section 860E(e)(1) of the Code on transfers of
residual interests to disqualified organizations.
(g) Each Person that has or that acquires any Ownership Interest in
any Class L Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound to make advances and
purchase Additional Balances through funding of the Reserve Account as and
to the extent set forth in Section 2.01(b) of the Transfer and Servicing
Agreement.
Section 3.04 Lost, Stolen, Mutilated or Destroyed Residual Certificates. If
(a) a mutilated Residual Certificate is surrendered to the Certificate
Registrar, or (b) the Certificate Registrar receives evidence to its
satisfaction that a Residual Certificate has been destroyed, lost or stolen, and
there is delivered to the Certificate Registrar proof of ownership satisfactory
to the Certificate Registrar, together with such security or indemnity as
required by the Certificate Registrar and the Owner Trustee to save each of them
harmless, then in the absence of notice to the Certificate Registrar or the
Owner Trustee that such Residual Certificate has been acquired by a protected
purchaser, the Owner Trustee shall execute on behalf of the Trust, and the Owner
Trustee or the Certificate Registrar shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Residual
Certificate, a new Residual Certificate of like tenor and Percentage Interest.
In connection with the issuance of any new Residual Certificate under this
Section 3.04, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including any fees and expenses of counsel) and any tax
or other governmental charge that may be imposed in connection therewith. Any
duplicate Residual Certificate issued pursuant to this Section 3.04 shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Residual Certificate shall
be found at any time.
Section 3.05 Persons Deemed Certificateholders. Notwithstanding any other
provision contained herein, prior to due presentation of a Residual Certificate
for registration of transfer, the Owner Trustee, the Certificate Registrar, the
Insurer or any Certificate Paying Agent may treat the Holder as the owner of
such Residual Certificate for the purpose of receiving distributions pursuant to
Section 4.02 and for all other purposes whatsoever, and none of the Trust, the
Owner Trustee, the Certificate Registrar, the Insurer or any Certificate Paying
Agent shall be bound by any notice to the contrary.
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Section 3.06 Access to List of Certificateholders' Names and Addresses. The
Certificate Registrar shall furnish or cause to be furnished to the Depositor,
the Insurer (so long as the Class A Notes are Outstanding or any Reimbursement
Amounts remain due and owing to the Insurer and no Insurer Default has occurred
and is continuing) or the Owner Trustee, within 15 days after receipt by the
Certificate Registrar of a written request therefor from the Depositor or the
Owner Trustee, in such form as the Depositor or the Owner Trustee, as the case
may be, may reasonably require, of the name and address of the Holder as of the
most recent Record Date. A Holder, by receiving and holding a Residual
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar, the Insurer or the Owner Trustee
accountable or liable for damages by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 3.07 ERISA Restrictions. The Residual Certificates may not be
acquired or transferred to a transferee, other than the Initial Holder or its
affiliate, for or, on behalf of, an employee benefit plan or other retirement
arrangement that is subject to ERISA or Section 4975 of the Code or to any
substantially similar law, or any entity deemed to hold the plan assets of the
foregoing (each, a "Benefit Plan"). Each prospective transferee, other than the
Initial Holder or its affiliate, shall represent and warrant to the Certificate
Registrar that it is not a Benefit Plan, in accordance with Exhibit ▇-▇, ▇-▇ or
F-1 or F-2 hereto, as applicable. By accepting and holding its beneficial
ownership interest in its Residual Certificate, the Holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan.
Section 3.08 Maintenance of Office or Agency. The Certificate Registrar on
behalf of the Trust, shall maintain an office or offices or agency or agencies
where a Residual Certificate may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Residual Certificates and the Operative Agreements may be served. The
Certificate Registrar shall give the Owner Trustee prompt notice, in writing, of
any such notice or demand. The Certificate Registrar initially designates the
Corporate Trust Office of the Administrator as its office for such purposes. The
Certificate Registrar shall give prompt written notice to the Depositor, the
Owner Trustee, the Insurer (so long as the Class A Notes are Outstanding or any
Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default
has occurred and is continuing) and the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
Section 3.09 Certificate Paying Agent.
(a) The Owner Trustee may appoint, and hereby appoints, the
Administrator as Certificate Paying Agent under this Agreement. The
Certificate Paying Agent shall make distributions to the Holders from the
Certificate Account pursuant to Section 4.02 hereof and Section 5.07 of the
Transfer and Servicing Agreement and, upon request, shall report the
amounts of such distributions to the Owner Trustee. The Certificate Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Account for the purpose of making the distributions referred to above. The
Administrator hereby accepts such appointment and further agrees that it
will be bound by the provisions of this Agreement and the Transfer and
Servicing Agreement relating to the Certificate Paying Agent and shall:
20
(i) hold all sums held by it for the payment of amounts due with
respect to the Residual Certificates in trust for the benefit of the
Person entitled thereto until such sums shall be paid to such Person
or otherwise disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the Trust of
which a Responsible Officer of the Administrator has actual knowledge
in the making of any payment required to be made with respect to the
Residual Certificates;
(iii) at any time during the continuance of any such default,
upon the written request of the Owner Trustee forthwith pay to the
Owner Trustee on behalf of the Trust all sums so held in Trust by such
Certificate Paying Agent;
(iv) immediately resign as Certificate Paying Agent and forthwith
pay to the Owner Trustee on behalf of the Trust all sums held by it in
trust for the payment of Residual Certificates if at any time it
ceases to meet the standards under this Section 3.09 required to be
met by the Certificate Paying Agent at the time of its appointment;
and
(v) not institute bankruptcy proceedings against the Trust in
connection with this Agreement.
(b) In the event that the Administrator shall no longer be the
Certificate Paying Agent hereunder, the Owner Trustee, with the consent of
the Depositor, shall appoint a successor to act as Certificate Paying Agent
(which shall be a bank or trust company). The Owner Trustee shall cause
such successor Certificate Paying Agent or any additional Certificate
Paying Agent appointed by the Owner Trustee to execute and deliver to the
Owner Trustee an instrument in which such successor Certificate Paying
Agent or additional Certificate Paying Agent shall agree with the Owner
Trustee that as Certificate Paying Agent, such successor Certificate Paying
Agent or additional Certificate Paying Agent will hold all sums, if any,
held by it for payment in trust for the benefit of the Holders entitled
thereto until such sums shall be paid to such Holder. The Certificate
Paying Agent shall return all unclaimed funds to the Owner Trustee, and
upon removal of a Certificate Paying Agent, such Certificate Paying Agent
shall also return all funds in its possession to the Owner Trustee. The
provisions of Sections 5.03, 5.04, 6.01, 6.05, 6.07, 6.08, 7.01 and 7.02
shall apply to the Administrator also in its role as Certificate Paying
Agent for so long as the Administrator shall act as Certificate Paying
Agent and, to the extent applicable, to any other Certificate Paying Agent
appointed hereunder. Any reference in this Agreement to the Certificate
Paying Agent shall include any co-paying agent unless the context requires
otherwise. Notwithstanding anything herein to the contrary, the
Administrator and the Certificate Paying Agent shall be the same entity as
the Indenture Trustee under the Indenture and the Transfer and Servicing
Agreement unless an Indenture Event of Default has occurred and is
continuing and the Indenture Trustee determines or is advised that a
conflict of interest exists or will exist if the Indenture Trustee
continues to act as Administrator and Certificate Paying Agent. In such
event, the Administrator and the Certificate Paying Agent shall resign and
the
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Owner Trustee, with the consent of the Depositor, shall appoint a successor
Administrator in accordance with the Administration Agreement.
Section 3.10 Initial Beneficiary. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the issuance of
the Residual Certificates, the Depositor shall be the sole beneficiary of the
Trust.
Section 3.11 Distributions on Residual Certificates. The Residual
Certificateholders will be entitled to distributions on each Payment Date, as
provided in this Agreement, the Transfer and Servicing Agreement and the
Indenture. With respect to any Payment Date during the Managed Amortization
Period, funds received by the Owner Trustee pursuant to Section 5.03(b)(ii) or
(iii) of the Transfer and Servicing Agreement shall be distributed by the Owner
Trustee to the Class L Certificateholders. With respect to any Payment Date, any
amounts remaining in the Distribution Account for payment to the Residual
Certificateholders pursuant to Section 5.03(b)(xv) of the Transfer and Servicing
Agreement, to the extent such funds are received by the Owner Trustee, shall be
distributed by the Owner Trustee as follows:
(i) with respect to any Payment Date during the Managed
Amortization Period, to the Class B Certificateholders; and
(ii) with respect to any Payment Date during the Rapid
Amortization Period, concurrently, to the Class B Certificateholders
and the Class L Certificateholders, pro rata based on their respective
Class Principal Balances; provided, however, that the Class L
Certificateholders shall have no right to such distributions unless
all unpaid and unreimbursed Expenses due and owing to the Owner
Trustee pursuant to the Operative Agreements (including Section 7.02
herein) shall have been paid from such amounts available for
distribution to the Class L Certificates.
provided, further, on the Payment Date on which the Redemption Price is
distributed, the portion, if any, of the Redemption Price equal to the Class
Principal Balance of the Class L Certificates shall be distributed pursuant to
this Section 3.11 to the Class L Certificateholders and the portion, if any, of
the Redemption Price equal to the Class Principal Balance of the Class B
Certificates shall be distributed pursuant to this Section 3.11 to the Class B
Certificateholders, as applicable.
With respect to each Payment Date, the Indenture Trustee, to the extent the
Master Servicer has provided the Mortgage Loan data delivered by the Master
Servicer to the Indenture Trustee pursuant to Section 4.09(a) of the Transfer
and Servicing Agreement (the "Indenture Trustee Report"), shall deliver or make
available the report to be provided by the Indenture Trustee pursuant to Section
4.09 of the Transfer and Servicing Agreement for such Payment Date to each
Residual Certificateholder.
ARTICLE IV
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 4.01 Certificate Account. All of the right, title and interest of
the Trust in all funds on deposit from time to time in the Certificate Account
and in all proceeds thereof shall be
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held for the benefit of the Holders and such other persons entitled to payments
therefrom. Except as otherwise expressly provided herein or in the Transfer and
Servicing Agreement, the Certificate Account shall be under the sole dominion
and control of the Owner Trustee for the benefit of the Certificateholders.
The Certificate Account shall be subject to and established and maintained
in accordance with the applicable provisions of the Transfer and Servicing
Agreement and the Indenture, including, without limitation, the provisions of
Section 5.07 of the Transfer and Servicing Agreement regarding distributions
from the Certificate Account.
Section 4.02 Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee shall direct the
Certificate Paying Agent to distribute to the Holders, from amounts on
deposit in the Certificate Account, the distributions as provided in
Sections 5.03 and 5.07 of the Transfer and Servicing Agreement with respect
to such Payment Date. The Owner Trustee hereby directs the Certificate
Paying Agent to distribute on each Payment Date to the Holders amounts on
deposit in the Certificate Account in accordance with Section 5.07 of the
Transfer and Servicing Agreement and the Certificate Paying Agent hereby
acknowledges such direction.
(b) All payments to be made under this Agreement by the Certificate
Paying Agent shall be made only from the income and proceeds, including Net
Proceeds from the Notes, of the Trust Estate and only to the extent that
the Certificate Paying Agent has received such income or proceeds. The Bank
shall not be liable to any Holder, the Indenture Trustee or the
Administrator for any amounts payable pursuant to this Section 4.02 except
to the extent that non-payment is due to the Owner Trustee's acts or
omissions amounting to willful misconduct or gross negligence.
(c) Distributions to the Holders shall be subordinated to the
creditors of the Trust, including, without limitation, the Noteholders.
Section 4.03 Method of Payment. Subject to Section 8.01(c), distributions
required to be made to the Holders on any Payment Date as provided in Section
4.02 shall be made to the Person who was the Holder on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if the
Holder shall have provided to the Certificate Registrar appropriate written
instructions at least five Business Days prior to such Payment Date or, if not,
by check mailed to such Holder at the address of such Holder appearing in the
Certificate Register.
Section 4.04 REMIC Related Covenants. For as long as the Trust shall exist,
the Depositor, the Owner Trustee and the Administrator, in connection with any
actions taken by any such Person on behalf of the Trust, shall act in accordance
herewith for the purpose of continuing treatment of each REMIC as a REMIC and
avoid the imposition of tax on any REMIC. In particular:
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(a) The Trust shall not create, or permit the creation of, any
"interests" in any REMIC within the meaning of Code Section 860D(a)(2)
other than the interests described in Section 2.11 hereof;
(b) Except as otherwise provided in the Code, the Depositor shall not
grant and the Trust shall not accept property unless (i) substantially all
of the property held in each REMIC constitutes either "qualified mortgages"
or "permitted investments" as defined in Code Sections 860G(a)(3) and (5),
respectively, and (ii) no property shall be contributed to any REMIC after
the start-up day unless such grant would not subject the Trust to the 100%
tax on contributions to a REMIC after the start-up day of such REMIC
imposed by Code Section 860G(d);
(c) The Trust shall not accept on behalf of any REMIC any fee or other
compensation for services and the Owner Trustee and the Administrator shall
not knowingly accept on behalf of the Trust any income from assets other
than those permitted to be held by such REMIC;
(d) The Trust shall not sell or permit the sale of all or any portion
of the Collateral unless such sale is pursuant to a "qualified liquidation"
as defined in Code Section 860F(a)(4)(A) of the applicable REMIC; and
(e) The Administrator shall maintain books with respect to the Trust
Fund on a calendar year taxable year and on an accrual basis.
(f) The Trust shall not engage in a "prohibited transaction" (as
defined in Code Section 860F(a)(2)), except that, with the prior written
consent of the Depositor, the Trust may engage in the activities otherwise
prohibited by the foregoing paragraphs (b), (c) and (d), provided that the
Depositor shall have delivered to the Owner Trustee, the Indenture Trustee
and the Insurer (so long as the Class A Notes are Outstanding or any
Reimbursement Amounts remain due and owing to the Insurer and no Insurer
Default has occurred and is continuing) an Opinion of Counsel to the effect
that such transaction will not result in the imposition of a tax on the
REMICs and will not disqualify the REMICs from treatment as REMICs; and
provided, further, that such action will not adversely affect the rights of
the Holders of the Securities and will not adversely impact the ratings of
the Notes.
Section 4.05 Segregation of Moneys; No Interest. Moneys received by or on
behalf of the Owner Trustee hereunder and deposited into the Certificate Account
will be segregated except to the extent required otherwise by law or the
provisions of the Transfer and Servicing Agreement. The Owner Trustee shall not
be liable for payment of any interest in respect of such moneys.
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ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE;
ACTION BY CERTIFICATEHOLDERS
Section 5.01 General Authority.
The Owner Trustee is authorized and directed to execute and deliver the
Notes, the Residual Certificates, and the other Operative Agreements to which it
is to be a party and each certificate or other document attached as an exhibit
to or contemplated by the Operative Agreements to which the Trust is to be a
party and any amendment or other agreement or instrument described herein, as
evidenced conclusively by the Owner Trustee's execution thereof, and, on behalf
of the Trust, to direct the Owner Trustee to authenticate the Notes. In addition
to the foregoing, the Owner Trustee is authorized, but shall not be obligated,
to take all actions required of the Trust pursuant to the Operative Agreements.
Section 5.02 General Duties.
(a) It shall be the duty of the Owner Trustee to discharge (or cause
to be discharged) all of its responsibilities pursuant to the terms of this
Agreement and the other Operative Agreements to which the Trust is a party
and to administer the Trust in the interest of the Certificateholders
subject to the Operative Agreements and in accordance with the provisions
of this Agreement. Notwithstanding the foregoing, the Owner Trustee shall
be deemed to have discharged its duties and responsibilities hereunder and
under the Operative Agreements to the extent the Administrator has agreed
in the Administration Agreement, the Transfer and Servicing Agreement or
this Agreement, respectively, to perform any act or to discharge any duty
of the Owner Trustee or the Trust hereunder or under any Operative
Agreement, and the Owner Trustee shall not be held liable for the default
or failure of the Administrator to carry out its obligations under the
Administration Agreement, this Agreement or the Transfer and Servicing
Agreement, respectively; and
(b) It shall be the duty of the Depositor under the Administration
Agreement to obtain and preserve the Trust's qualification to do business
in each jurisdiction in which such qualification is or shall be necessary
to protect the validity and enforceability of the Indenture, the Notes, the
Collateral and each other instrument and agreement included in the Trust
Estate. It shall be the duty of the Owner Trustee to cooperate with the
Depositor with respect to such matters.
Section 5.03 Action Upon Instruction.
(a) Subject to Article V and in accordance with the terms of the
Operative Agreements, a Holder may by written instruction with a copy to
the Insurer (so long as the Class A Notes are Outstanding or any
Reimbursement Amounts remain due and owing to the Insurer and no Insurer
Default has occurred and is continuing) direct the Owner Trustee in the
management of the Trust, but only to the extent consistent with the limited
purpose of the Trust. Such direction may be exercised at any time by
written instruction of a Holder pursuant to this Article V.
25
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Operative Agreement if
the Owner Trustee shall have reasonably determined, or shall have been
advised by counsel, that such action is likely to result in liability on
the part of the Owner Trustee or is contrary to the terms hereof or of any
Operative Agreement or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
under any other Operative Agreement, or in the event that the Owner Trustee
is unsure as to the application of any provision of this Agreement or any
other Operative Agreement or any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Agreement permits any determination by
the Owner Trustee or is silent or is incomplete as to the course of action
that the Owner Trustee is required to take with respect to a particular set
of facts, the Owner Trustee may promptly give notice (in such form as shall
be appropriate under the circumstances) to the Holders requesting
instruction as to the course of action to be adopted and, to the extent the
Owner Trustee acts in good faith in accordance with any written instruction
of the Holders, the Owner Trustee shall not be liable on account of such
action to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this
Agreement or any other Operative Agreement, as it shall deem to be in the
best interests of the Holders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section 5.04 No Duties Except as Specified under Specified Documents or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, and (ii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 5.03; and no
implied duties or obligations shall be read into this Agreement or any Operative
Agreement against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to the Trust or to prepare or file any
Securities and Exchange Commission filing for the Trust or to record this
Agreement or any Operative Agreement or to prepare or file any tax return for
the Trust. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Trust Estate that result from actions by, or claims against
the Bank that are not related to the ownership or the administration of the
Trust Estate.
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Section 5.05 Restrictions.
(a) The Owner Trustee shall not take any action that is inconsistent
with the purposes of the Trust set forth in Section 2.03. The Holders shall
not direct the Owner Trustee to take action that would violate the
provisions of this Section 5.05.
(b) The Owner Trustee shall not, except as provided herein, convey or
transfer any of the Trust's properties or assets, including those included
in the Trust Estate, to any person unless such conveyance or transfer shall
not violate the provisions of the Indenture.
Section 5.06 Prior Notice to the Holders with Respect to Certain Matters.
With respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Holders and the Insurer (so long as the Class A Notes
are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer
and no Insurer Default has occurred and is continuing) in writing of the
proposed action and the Holders shall have notified the Owner Trustee in writing
prior to the 30th day after such notice is given that such Holder and the
Insurer (so long as the Class A Notes are Outstanding or any Reimbursement
Amounts remain due and owing to the Insurer and no Insurer Default has occurred
and is continuing) has consented to such action or provided alternative
direction:
(a) The initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of cash distributions
due and owing under the Collateral) and the compromise of any action, claim
or lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of cash distributions due
and owing under the Collateral);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Delaware
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture or of
this Agreement or any other Operative Agreement in circumstances where the
consent of any Noteholder is required;
(d) the amendment or other change of the Indenture by a supplemental
indenture or of this Agreement or any other Operative Agreement in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Holders;
(e) the amendment of the Transfer and Servicing Agreement in
circumstances where the consent of any Noteholder is required;
(f) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially and
adversely affect the interests of the Holders;
27
(g) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar or Certificate Paying Agent or the
consent to the assignment by the Note Registrar, Paying Agent, Indenture
Trustee, Certificate Registrar or Certificate Paying Agent of its
obligations under the Indenture or this Agreement, as applicable;
(h) the consent to the calling or waiver of any default of any
Operative Agreement;
(i) the consent to the assignment by the Indenture Trustee of its
obligations under any Operative Agreement;
(j) except as provided in Article VIII hereof, dissolve, terminate or
liquidate the Trust in whole or in part;
(k) the merger, conversion or consolidation of the Trust with or into
any other entity, or conveyance or transfer of all or substantially all of
the Trust's assets to any other entity;
(l) the incurrence, assumption or guaranty by the Trust of any
indebtedness other than as set forth in this Agreement;
(m) the taking of any action which conflicts with any Operative
Agreement or would make it impossible to carry on the ordinary business of
the Trust or change the Trust's purpose and powers set forth in this
Agreement;
(n) the confession of a judgment against the Trust;
(o) the possession of the Trust assets, or assignment of the Trust's
right to property, for other than a Trust purpose; or
(p) the lending of funds by the Trust to any entity.
In addition, the Trust shall (i) hold itself out as a separate entity from
each Certificateholder and not conduct any business in the name of any
Certificateholder, (ii) correct any known misunderstanding regarding its
separate identity, (iii) maintain adequate capital in light of its contemplated
business operations, (iv) correct any known misunderstanding regarding its
separate identity, (v) maintain appropriate minutes or other records of all
appropriate actions and shall maintain its office and bank accounts separate
from any other Person or entity, (vi) conduct its own business in its own name
and use stationery, invoices, checks or other business forms under its own name
and not that of any other Person, (vii) observe all formalities required under
the Delaware Trust Statute and other formalities required by the Transaction
Documents, (viii) conduct business with the Certificateholders or any Affiliate
thereof on an arm's-length basis, and (ix) maintain its financial and accounting
books and records separate from those of any other Person or entity. In
addition, the Trust shall not (i) guarantee or become obligated for the debts of
any other person or entity, (ii) acquire the obligations or securities of its
Certificateholders or its Affiliates, (iii) identify itself as a division of any
other Person or entity, (iv) commingle its assets with those of any other Person
or entity, (v) engage in any business
28
activity in which it is not currently engaged other than as contemplated by the
Operative Agreements and related documentation, (vi) form, or cause to be
formed, any subsidiaries, (vii) own or acquire any asset other than as
contemplated by the Operative Agreements and related documentation, (viii)
acquire the obligations or securities of its Affiliates or the Seller, (ix) hold
out its credit as being available to satisfy the obligations of any other person
or entity, (x) identify itself as a division of any other person or entity, and
(xi) make loans to any other person or entity or buy or hold evidence of
indebtedness issued by any other person or entity. Other than as expressly set
forth herein, the Trust shall (i) pay its indebtedness, operating expenses and
liabilities from its own funds, and neither incur any indebtedness nor pay the
indebtedness, operating expenses and liabilities of any other entity and (ii)
not engage in any dissolution, liquidation, consolidation, merger or sale of
assets. Other than as contemplated by the Operative Agreements and related
documentation, the Trust shall (i) not pledge its assets for the benefit of any
other person or entity and (ii) not follow the directions or instructions of the
Depositor.
For accounting purposes, the Trust shall be treated as an entity separate
and distinct from the Holders. The pricing and other material terms of all
transactions and agreements to which the Trust is a party shall be intrinsically
fair to all parties thereto. This Agreement is and shall be the only agreement
among the parties thereto with respect to the creation, operation and
termination of the Trust.
The Owner Trustee shall not have the power, except upon the written
direction of the Holders, and to the extent otherwise consistent with the
Operative Agreements, to (i) remove or replace the Indenture Trustee, or (ii)
institute a bankruptcy against the Trust. So long as the Indenture remains in
effect, to the extent permitted by applicable law, the Holders shall have no
power to commence, and shall not commence, any bankruptcy with respect to the
Trust or direct the Owner Trustee to commence any bankruptcy with respect to the
Trust.
(q) The Owner Trustee shall not have the power, except upon the
written direction of the Insurer, or if the Class A Notes are no longer
Outstanding and no Reimbursement Amounts remain due and owing to the
Insurer or an Insurer Default has occurred and is continuing, the Holders,
to (i) remove the Administrator under the Administration Agreement pursuant
to Section 9 thereof, (ii) appoint a successor Administrator pursuant to
Section 9 of the Administration Agreement, or (iii) except as expressly
provided in the Indenture, to sell the Collateral after the termination of
the Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed and authorized by
the Insurer, or if the Class A Notes are no longer Outstanding and no
Reimbursement Amounts remain due and owing to the Insurer or if an Insurer
Default has occurred and is continuing, the Holders.
Section 5.07 Action by the Holders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence or consent to a
bankruptcy relating to the Trust without the prior approval of the Insurer, or
if the Class A Notes are no longer Outstanding or if an Insurer Default has
occurred and is continuing, the Holders and the delivery to the Owner Trustee by
the Holders of a certificate certifying that the Insurer, or if the Class A
Notes are no longer Outstanding and no Reimbursement Amounts remain due and
owing to the Insurer or if an Insurer Default has occurred and is continuing,
the Holders reasonably
29
believes that the Trust is insolvent. This paragraph shall survive for one year
and one day following termination of this Agreement. So long as the Indenture
remains in effect, the Holders shall not have the power to institute, and shall
not institute, any bankruptcy with respect to the Trust or direct the Owner
Trustee to take such action.
Section 5.08 Restrictions on the Holders' Power.
The Holders shall not direct the Owner Trustee to take or to refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Operative
Agreements or would be contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
Section 5.09 Insurer's Rights Regarding Actions, Proceedings or
Investigations.
Until all Class A Notes and Reimbursement Amounts have been paid in full,
all amounts owed to the Insurer have been paid in full, the Insurance Agreement
has terminated and the Policy has been returned to the Insurer for cancellation,
the following provisions shall apply:
(a) Notwithstanding anything to the contrary in the Operative
Agreements (but in all cases subject to Section 5.09(g) and (h)), without
the prior written consent of the Insurer, the Owner Trustee shall not (i)
remove a Servicer, (ii) initiate any claim, suit or proceeding by the Trust
or compromise any claim, suit or proceeding brought by or against the
Trust, other than with respect to the enforcement of any Mortgage Loan or
any rights of the Trust thereunder or confess a judgment against the Trust,
(iii) authorize the merger or consolidation of the Trust with or into any
other statutory trust or other entity or convey or transfer all or
substantially all of the Trust's assets to any other Person, (iv) amend the
Certificate of Trust unless required by the Delaware Trust Statute or (v)
amend this Agreement in accordance with Section 10.01 of this Agreement.
(b) Notwithstanding anything contained herein or in the other
Operative Agreements to the contrary and providing that no Insurer Default
has occurred or is continuing (but in all cases subject to Section 5.09(g)
and (h)), the Insurer shall have the right to participate in, to direct the
enforcement or defense of, and, at the Insurer's sole option, to institute
or assume the defense of, any action, proceeding or investigation that
could adversely affect the Trust, the Trust Estate, the Collateral, or the
rights or obligations of the Insurer hereunder or under the Policy or the
Operative Agreements, including (without limitation) any insolvency or
bankruptcy proceeding in respect of the Servicer, the Originator, the
Seller, the Depositor, the Trust or any affiliate thereof. Following notice
to the Indenture Trustee, the Insurer shall have exclusive right to
determine, in its sole discretion, the actions necessary to preserve and
protect the Trust, the Trust Estate and the Collateral. All costs and
expenses of the Insurer in connection with such action, proceeding or
investigation, including (without limitation) any judgment or settlement
entered into affecting the Insurer or the Insurer's interests, shall be
included in the Reimbursement Amount.
(c) In connection with any action, proceeding or investigation that
could adversely affect the Trust, the Trust Estate, the Collateral or the
rights or obligations of
30
the Insurer hereunder or under the Policy or the Operative Agreements,
including (without limitation) any insolvency or bankruptcy proceeding in
respect of the Servicer, the Originator, the Seller, the Depositor, the
Trust or any affiliate thereof, the Owner Trustee hereby agrees to
cooperate with the Insurer, and the Certificateholders agree that the Owner
Trustee on behalf of the Trust shall take such action as directed by, the
Insurer, including (without limitation) entering into such agreements and
settlements as the Insurer shall direct, in its sole discretion, without
the consent of any Noteholder.
(d) The Owner Trustee hereby agrees to provide the Insurer written
notice of any action, proceeding or investigation of which it has Actual
Knowledge regarding this agreement or any other Operative Agreement.
(e) Each Residual Certificateholder, by acceptance of its Residual
Certificate, as appropriate, and the Owner Trustee agree that the Insurer
shall have such rights as set forth in this Section, which are in addition
to any rights of the Insurer pursuant to the other provisions of the
Operative Agreements, that the rights set forth in this Section may be
exercised by the Insurer, in its sole discretion, without the need for the
consent or approval of any Residual Certificateholder or the Owner Trustee,
notwithstanding any other provision contained herein or in any of the other
Operative Agreements, and that nothing contained in this Section shall be
deemed to be an obligation of the Insurer to exercise any of the rights
provided for herein.
(f) Notwithstanding anything contained herein or in any of the other
Operative Agreements to the contrary (but in all cases subject to Sections
5.09(g) and (h)), the Owner Trustee shall not, without the Insurer's prior
written consent or unless directed by the Insurer, undertake or join any
litigation or agree to any settlement of any action, proceeding or
investigation affecting the Trust, the Trust Estate, the Collateral or the
rights or obligations of the Insurer hereunder or under the Policy or the
Operative Agreements.
(g) With respect to the Insurer, the Owner Trustee undertakes to
perform or observe only such of the covenants and obligations of the Owner
Trustee as are expressly set forth in this Trust Agreement, and no implied
covenants or obligations with respect to the Insurer shall be read into
this Trust Agreement or the other Operative Agreements against the Owner
Trustee. The Owner Trustee shall not be deemed to owe any fiduciary duty to
the Insurer, and shall not be liable to any such person other than as a
result of the gross negligence or willful misconduct of the Owner Trustee
in the performance of its express obligations under this Trust Agreement.
(h) Whenever the Owner Trustee acts or refrains from acting pursuant
to this Section 5.09, the Owner Trustee shall have all the rights,
privileges and immunities that the Owner Trustee otherwise has under this
Agreement or any other Operative Agreement including, but not limited to,
the right to request the Insurer provide adequate indemnity reasonably
acceptable to the Bank and the Owner Trustee to hold the Bank and the Owner
Trustee harmless.
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ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01 Acceptance of Trust and Duties. The Owner Trustee accepts the
trusts hereby created and agrees to perform the same but only upon the terms of
this Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Trust Estate upon the terms of this
Agreement. The Bank shall not be answerable or accountable hereunder or under
any other Operative Agreements under any circumstances, except (i) for its own
willful misconduct, gross negligence or bad faith, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.04(a), (iii)
for liabilities arising from the failure by the Bank to perform obligations
expressly undertaken by it in the last sentence of Section 5.04, or (iv) for
taxes, fees or other charges based on or measured by any fees, commissions or
compensation received by the Bank in connection with any of the transactions
contemplated by this Agreement, any other Operative Agreements or the Notes. In
particular, but not by way of limitation:
(a) The Bank shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Owner Trustee;
(b) The Bank shall not be liable with respect to any action taken or
omitted to be taken by the Owner Trustee in accordance with the
instructions of the Holders or Insurer;
(c) No provision of this Agreement shall require the Bank to expend or
risk funds or otherwise incur any financial liability in the performance of
any of the Owner Trustee's rights or powers hereunder or under any other
Operative Agreements if the Bank shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) Under no circumstance shall the Bank be liable for indebtedness
evidenced by or arising under any of the Operative Agreements, including
the principal of and interest on the Notes;
(e) The Bank shall not be liable with respect to any action taken or
omitted to be taken by the Depositor, the Insurer, the Administrator, the
Master Servicer, the Indenture Trustee, any Officer or the Certificate
Paying Agent under this Agreement or any other Operative Agreement or
otherwise and the Bank shall not be obligated to perform or monitor the
performance of any obligations or duties under this Agreement or the other
Operative Agreements which are to be performed by the Certificate Paying
Agent under this Agreement, the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or by any other Person
under any of the Operative Agreements; and
(f) The Bank shall not be responsible for or in respect of the
recitals herein, the validity or sufficiency of this Agreement or for the
due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of
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the Trust Estate or for or in respect of the validity or sufficiency of the
Operative Agreements, other than the certificate of authentication on the
Residual Certificates, and the Bank shall in no event assume or incur any
liability, duty or obligation to any Noteholder, the Insurer, the Depositor
or to the Holders, other than as expressly provided for herein.
Section 6.02 Furnishing of Documents.
The Owner Trustee will furnish to the Administrator (for distribution to
the Holders), promptly upon receipt of a written request therefor, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee hereunder or
under the Operative Agreements unless the Administrator shall have already
received the same.
Section 6.03 Books and Records. The Owner Trustee shall keep or cause to be
kept proper books of record and account of all the transactions under this
Agreement, including a record of the name and address of the Holders. The Owner
Trustee shall be deemed to have complied with this Section 6.03 by the
appointment of the Administrator and the Certificate Paying Agent to perform
such duties hereunder.
Section 6.04 Representations and Warranties.
(a) The Bank represents and warrants to the Depositor, for the benefit
of the Holders and the Insurer, as follows:
(i) the Bank is a banking corporation duly formed and validly
existing and in good standing under the laws of the State of Delaware
and has the power and authority to execute, deliver and perform its
obligations under this Agreement and (assuming due authorization,
execution and delivery of this Agreement by the Depositor and
Administrator), has the power and authority as Owner Trustee to
execute and deliver the Operative Agreements and to perform its
obligations thereunder and, assuming the due authorization, execution
and delivery hereof by the other parties hereto, this Agreement
constitutes a legal, valid and binding obligation of the Bank or the
Owner Trustee, as the case may be, enforceable against the Bank or the
Owner Trustee, as the case may be, in accordance with its terms,
except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought;
(ii) the Bank has no reason to believe that anyone authorized to
act on its behalf has offered any interest in and to the Trust for
sale to, or solicited any offer to acquire any of the same from,
anyone;
(iii) the execution, delivery and performance by the Bank, either
in its individual capacity or as Owner Trustee, as the case may be, of
the Operative Agreements will not result in any violation of, or be in
any conflict with, or
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constitute a default under any of the provisions of any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract,
lease, note or bond purchase agreement, license, judgment, order or
other agreement to which the Bank is a party or by which it or any of
its properties is bound;
(iv) the execution and delivery by the Bank of this Agreement,
and the performance of its duties as Owner Trustee hereunder, do not
require the consent or approval of, the giving of notice to, or the
registration with, or the taking of any other action with respect to,
any governmental authority or agency of the State of Delaware (except
as may be required by the Delaware Trust Statute); and
(v) there are no pending or, to the best of its knowledge,
threatened actions or proceedings against the Bank before any court,
administrative agency or tribunal which, if determined adversely to
it, would materially and adversely affect its ability, either in its
individual capacity or as Owner Trustee, as the case may be, to
perform its obligations under this Agreement or the Operative
Agreements.
(b) LaSalle Bank National Association, as Administrator, hereby
represents and warrants to the Depositor, for the benefit of the Holders
and the Insurer, that:
(i) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States,
and has the power and authority to execute, deliver and perform its
obligations under this Agreement and, assuming the due authorization,
execution and delivery hereof by the other parties hereto, this
Agreement constitutes a legal, valid and binding obligation of the
Administrator, enforceable against the Administrator in accordance
with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought;
(ii) it has taken all action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized
to execute and deliver this Agreement on its behalf; and
(iii) neither the execution nor the delivery by it of this
Agreement nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal governmental rule or regulation governing
the banking or trust powers of the Administrator or any judgment or
order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement
or instrument to which it is a party or by which any of its properties
may be bound.
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Section 6.05 Reliance; Advice of Counsel.
(a) Except as provided in Section 6.01, the Owner Trustee shall incur
no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to
be signed by the proper party or parties. The Owner Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any corporate or partnership entity as conclusive evidence that
such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the manner of ascertainment
of which is not specifically prescribed herein, the Owner Trustee may for
all purposes hereof rely on a certificate, signed by the president or any
vice president (or the general partner, in the case of a partnership) and
by the treasurer or any assistant treasurer or the secretary or any
assistant secretary of the relevant party, as to such fact or matter, and
such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance
thereon.
(b) In its exercise or administration of the trusts and powers
hereunder, including its obligations under Section 5.02(b), and in the
performance of its duties and obligations under this Agreement or the other
Operative Agreements, the Owner Trustee may employ agents and attorneys and
enter into agreements (including the Administration Agreement) with any of
them, and the Owner Trustee shall not be answerable for the default or
misconduct of any such agents or attorneys if such agents or attorneys
shall have been selected by the Owner Trustee with reasonable care. If, and
to the extent, the Depositor shall have failed to reimburse the Owner
Trustee for all reasonable expenses incurred pursuant to this Section
6.05(b), as provided in Section 7.01, the Owner Trustee may seek
reimbursement therefor from the Trust Estate.
(c) In the administration of the trusts and performance of its duties
hereunder, the Owner Trustee may consult with counsel, accountants and
other skilled Persons to be selected and employed by it, and the Owner
Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the reasonable advice or opinion of any such
counsel, accountants or other skilled Persons. If, and to the extent, the
Depositor shall have failed to reimburse the Owner Trustee for all
reasonable expenses incurred pursuant to this Section 6.05(c), as provided
in Section 7.01, the Owner Trustee may seek reimbursement therefor from the
Trust Estate.
Section 6.06 Not Acting in Individual Capacity. Except as provided in this
Article VI, in accepting the trusts hereby created the Owner Trustee acts solely
as trustee hereunder and not in its individual capacity, and all persons having
any claim against the Owner Trustee by reason of the transactions contemplated
by the Operative Agreements shall look only to the Trust Estate for payment or
satisfaction thereof.
Section 6.07 Owner Trustee Not Liable for Residual Certificates or
Collateral. The recitals contained herein and in the Residual Certificates
(other than the signature and countersignature of the Owner Trustee on the
Residual Certificates) shall be taken as the statements of the Depositor, and
the Owner Trustee assumes no responsibility for the correctness
35
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Agreement, of any Operative Agreement or of the Residual
Certificates (other than the signature and countersignature of the Owner Trustee
on the Residual Certificates) or the Notes, or of any Collateral or related
documents. The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Collateral, or the perfection and priority of any security interest created
by any Collateral or the maintenance of any such perfection and priority, or for
or with respect to the sufficiency of the Trust Estate or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement or the Noteholders under the Indenture, including, without limitation:
the existence, condition and ownership of any Collateral; the existence and
enforceability of any insurance thereon; the existence and contents of any
Collateral on any computer or other record thereof; the validity of the
assignment of any Collateral to the Trust or of any intervening assignment; the
completeness of any Collateral; the performance or enforcement of any
Collateral; the compliance by the Depositor with any warranty or representation
made under any Operative Agreements or in any related document or the accuracy
of any such warranty or representation or any action of the Administrator or the
Indenture Trustee taken in the name of the Owner Trustee.
Section 6.08 Owner Trustee May Own Residual Certificates and Notes. The
Owner Trustee in its individual capacity may become a Holder (provided it is an
Eligible corporation) or the owner or pledgee of Notes and may deal with the
Depositor, the Administrator and the Indenture Trustee in banking transactions
with the same rights as it would have if it were not Owner Trustee.
Section 6.09 Licenses. The Depositor shall cause the Trust to use its best
efforts to obtain and maintain the effectiveness of any licenses required in
connection with this Agreement and the other Operative Agreements and the
transactions contemplated hereby and thereby until such time as the Trust shall
terminate in accordance with the terms hereof. It shall be the duty of the Owner
Trustee to cooperate with the Depositor with respect to such matters.
Section 6.10 Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither the Bank nor the Owner
Trustee shall be required to take any action in any jurisdiction other than in
the State of Delaware if the taking of such action will (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state or
other governmental authority or agency of any jurisdiction other than the State
of Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivisions thereof in existence on
the date hereof other than the State of Delaware becoming payable by the Bank or
the Owner Trustee; or (iii) subject the Bank or the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes of
action arising from acts unrelated to the consummation of the transactions by
the Bank or the Owner Trustee, as the case may be, contemplated hereby. The
Owner Trustee shall be entitled to obtain advice of counsel (which advice shall
be an expense of the Trust) to determine whether any action required to be taken
pursuant to this Agreement results in the consequences described in clauses (i),
(ii) and (iii) of the immediately preceding sentence. In the event that such
counsel advises the Owner Trustee that such action will result in such
consequences, the Owner Trustee will appoint a co-trustee pursuant to Section
9.05 hereof to proceed with such action.
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Section 6.11 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Notwithstanding anything to the contrary
herein or in any other Operative Agreement, the Owner Trustee shall not be
required to execute, deliver or certify on behalf of the Issuer or any other
Person any filings, certificates, affidavits or other instruments in connection
with certifications required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
ARTICLE VII
INDEMNIFICATION AND COMPENSATION
Section 7.01 Trust Expenses. The Depositor shall pay the organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee in connection therewith. The Depositor shall also pay (or
reimburse the Bank for) all reasonable expenses of the Owner Trustee hereunder,
including, without limitation, the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and duties under the Operative Agreements.
Section 7.02 Indemnification. The Depositor and ▇▇▇▇▇▇ Brothers, jointly
and severally, agree to assume liability for, and indemnify the Bank and its
successors, assigns, officers, directors, agents and servants, against and from,
any and all liabilities, obligations, losses, damages, taxes, claims, actions,
suits, costs, expenses and disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever (collectively, "Expenses") which may
be imposed on, incurred by or asserted at any time against the Bank (whether or
not indemnified against by other parties) in any way relating to or arising out
of this Agreement, any Operative Agreement, the Collateral, the administration
of the Trust Estate or the action or inaction of the Owner Trustee hereunder,
except only that Depositor and ▇▇▇▇▇▇ Brothers shall not be required to
indemnify the Bank for Expenses arising or resulting from any of the matters
described in the third sentence of Section 6.01. The indemnities contained in
this Section 7.02 shall survive the resignation or termination of the Owner
Trustee or the termination of this Agreement. In the event of any claim, action
or proceeding for which indemnity will be sought pursuant to this Section, the
Owner Trustee's choice of legal counsel shall be subject to the approval of the
Depositor, which approval shall not be unreasonably withheld.
Section 7.03 Compensation. The Bank shall receive as compensation for its
services hereunder such fees as are set forth in the Fee Letter Agreement
between the Bank and the Depositor attached hereto as Exhibit G.
Section 7.04 Lien on Trust Estate. The Bank shall have a lien on the Trust
Estate for any compensation or indemnity due hereunder, such lien to be subject
only to prior liens of the Indenture. The Bank shall not bring any proceedings
to foreclose on such lien if and to the extent the Trust Estate is subject to
the lien of the Indenture. Any amount paid to the Owner Trustee pursuant to this
Article VII shall be deemed not to be part of the Trust Estate immediately after
such payment.
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ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01 Termination of Agreement.
(a) This Agreement (other than Article VII) shall terminate and the
trust created hereby shall dissolve and terminate and the Trust Estate
shall, subject to the Indenture and Section 3808 of the Delaware Trust
Statute, be distributed to the Holders, and this Agreement shall be of no
further force or effect, upon the later of (i) the Payment Date immediately
following the payment in full of all amounts owing to the Insurer and (ii)
the earliest of (A) the Payment Date on which the aggregate Note Principal
Amount of the Notes (after application of any principal payments on such
date) has been reduced to zero and all other amounts due and owing to the
Noteholders have been paid in full, (B) the Payment Date immediately
following the final payment or other liquidation of the last Mortgage Loan
in the Trust, (C) the Payment Date immediately following the Optional
Redemption of the Notes by the Master Servicer, as described below and (D)
the Payment Date in September 2030. The bankruptcy, liquidation or
dissolution of the Holder shall not operate to terminate this Agreement,
nor entitle such Holder's legal representatives to claim an accounting or
to take any action or proceeding in any court for a partition or winding up
of the Trust Estate, nor otherwise affect the rights, obligations and
liabilities of the parties hereto. The Insurer's rights to indemnification
shall survive the Termination of the Trust.
(b) Except as provided in Section 8.01(a), neither the Depositor nor
the Holders shall be entitled to revoke or terminate the Trust established
hereunder.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which each Holder shall surrender its Residual Certificate to the
Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Certificate Paying Agent by letter to
the Holders, the Insurer (so long as the Class A Notes are Outstanding or
any Reimbursement Amounts remain due and owing to the Insurer and no
Insurer Default has occurred and is continuing) and the Rating Agencies
mailed within five Business Days of receipt of notice of the final payment
on the Notes from the Indenture Trustee, stating (i) the Payment Date upon
or with respect to which final payment of the Residual Certificate shall be
made upon presentation and surrender of the Residual Certificate at the
office of the Certificate Paying Agent therein designated, (ii) the amount
of any such final payment and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, payments being made only
upon presentation and surrender of the Residual Certificate at the office
of the Certificate Paying Agent therein specified. The Certificate Paying
Agent shall give such notice to the Owner Trustee and the Certificate
Registrar at the time such notice is given to the Holders. Upon
presentation and surrender of the Residual Certificate, the Certificate
Paying Agent shall cause to be distributed to the Holders amounts
distributable on such Payment Date pursuant to Section 5.03 and Section
5.07 of the Transfer and Servicing Agreement.
(d) Upon the winding up of the Trust and its termination and notice
from the Certificate Paying Agent, the Owner Trustee shall cause the
Certificate of Trust to be
38
cancelled by filing a certificate of cancellation with the Secretary of
State in accordance with the provisions of Section 3810 of the Delaware
Trust Statute.
Section 8.02 Additional Termination Requirements.
(a) In the event of an Optional Redemption in accordance with Section
8.02 of the Transfer and Servicing Agreement, the Trust shall be terminated
in accordance with the following additional requirements, unless the Owner
Trustee has received an Opinion of Counsel to the effect that the failure
of the Trust to comply with the requirements of this Section 8.02 will 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
created hereunder to fail to qualify as a REMIC at any time that any
Securities are outstanding:
(A) the Trust shall sell or cause to be sold all of the assets of
the Trust Estate for cash in accordance with Section 8.02 of the
Transfer and Servicing Agreement;
(B) Within 90 days of such sale, the Indenture Trustee shall
distribute the proceeds of such sale to the Securityholders in
complete liquidation of the Trust Estate and the REMICs then in
existence; and
(C) The Administrator shall attach a statement to the final
Federal income tax return for the REMIC then in existence stating that
pursuant to Treasury Regulation ss. 1.860F-1, the first day of the
90-day liquidation period for the REMICs was the date on which the
Trust sold the assets of the Trust Estate.
(b) By their acceptance of the Class L and Class R Certificates, the
Holders of each thereof hereby agree to the adoption of such a plan of
complete liquidation if required under paragraph (a) above and to take such
action in connection therewith as may be reasonably requested by the Owner
Trustee or the Administrator.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times be a corporation satisfying the provisions of Section 3807(a)
of the Delaware Trust Statute; authorized to exercise corporate powers; having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal or state authorities and, so long as the Class A Notes
are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer
and no Insurer Default has occurred and is continuing, acceptable to the Insurer
in its sole reasonable discretion; and having (or having a parent which has) a
short-term debt rating of at least "A-1" or the equivalent by, or which is
otherwise acceptable to, the Rating Agencies. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In
39
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 9.02.
Section 9.02 Resignation or Removal of Owner Trustee. The Owner Trustee may
at any time resign and be discharged from the trust hereby created by giving 30
days' prior written notice thereof to the Depositor, the Insurer (so long as the
Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing
to the Insurer and no Insurer Default has occurred and is continuing) and the
Indenture Trustee. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee and, so long as the
Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing
to the Insurer and no Insurer Default has occurred and is continuing, the
Insurer. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Owner Trustee. If the Depositor shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the Depositor
shall promptly appoint a successor Owner Trustee by written instrument in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and, so long as
the Class A Notes are Outstanding or any Reimbursement Amounts remain due and
owing to the Insurer and no Insurer Default has occurred and is continuing, the
Insurer and payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to the Rating Agencies.
Section 9.03 Successor Owner Trustee. Any successor Owner Trustee appointed
pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Administrator and the Insurer (so long as the Class A Notes are Outstanding or
any Reimbursement Amounts remain due and owing to the Insurer and no Insurer
Default has occurred and is continuing) and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become effective
and such successor Owner Trustee without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties, and obligations
of its predecessor under this Agreement, with like effect as if originally named
as Owner Trustee. The predecessor Owner
40
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the Administrator and the predecessor Owner Trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor Owner
Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Insurer (so long
as the Class A Notes are Outstanding or any Reimbursement Amounts remain due and
owing to the Insurer and no Insurer Default has occurred and is continuing), the
Noteholders and the Rating Agencies. If the Administrator fails to mail such
notice within 10 days after acceptance of appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed at the
expense of the Administrator.
Section 9.04 Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
that such Person shall be eligible pursuant to Section 9.01, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding and
provided, further that (so long as the Class A Notes are Outstanding or any
Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default
has occurred and is continuing) the Owner Trustee shall mail notice to the
Insurer.
Section 9.05 Appointment of Co-Trustee or Separate Trustee. Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Estate
or any Collateral may at the time be located, and for the purpose of performing
certain duties and obligations of the Owner Trustee with respect to the Trust
and the Certificates under the Transfer and Servicing Agreement, the Owner
Trustee shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee and the Insurer (so
long as the Class A Notes are Outstanding or any Reimbursement Amounts remain
due and owing to the Insurer and no Insurer Default has occurred and is
continuing) to act as co-trustee, jointly with the Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Estate, and to
vest in such Person, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor trustee
pursuant to Section 9.01 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 9.03.
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The Owner Trustee hereby appoints the Indenture Trustee as Administrator
for the purpose of establishing and maintaining the Certificate Account and
making the distributions therefrom to the Persons entitled thereto pursuant to
Section 5.03 and Section 5.07 of the Transfer and Servicing Agreement. The Owner
Trustee and the Administrator each agree that upon the occurrence and
continuation of an Indenture Event of Default and a determination by the
Indenture Trustee that a conflict of interest exists or will exist if the
Indenture Trustee continues to act as the Administrator, the Administrator shall
resign and the Owner Trustee shall appoint a successor Administrator in
accordance with the Administration Agreement.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provision and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(c) the Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to the separate trustees and co-trustees, as if given
to each of them. Every instrument appointing any separate trustee or co-trustee,
other than this Agreement, shall refer to this Agreement and to the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
appointment, shall be vested with the estates specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Owner Trustee. Each
such instrument shall be filed with the Owner Trustee and a copy thereof given
to the Administrator and the Insurer (so long as the Class A Notes are
Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and
no Insurer Default has occurred and is continuing).
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its Agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of
42
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE X
MISCELLANEOUS
Section 10.01 Supplements and Amendments. This Agreement may be amended by
the Depositor, the Administrator and the Owner Trustee, with the consent of the
Holders and the Insurer (so long as the Class A Notes are Outstanding or any
Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default
has occurred and is continuing) and with prior written notice to the Rating
Agencies, but without the consent of any of the Noteholders or the Indenture
Trustee, to cure any ambiguity, to correct or supplement any provisions in this
Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement or of modifying in
any manner the rights of the Noteholders or the Holders or to add, delete or
amend any provisions to the extent necessary or desirable to comply with any
requirements imposed by the Code and the REMIC Provisions; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder or any Holder of
a Residual Certificate or adversely affect the tax status of the REMICs created
by this Agreement. An amendment shall not be deemed to adversely affect in any
material respect the interests of any Noteholder or any Holder and no opinion
referred to in the preceding proviso shall be required to be delivered if the
Person requesting the amendment obtains a letter from each Rating Agency stating
that the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to each Class of Notes. Notwithstanding the
preceding sentence, an Opinion of Counsel shall be required with respect to tax
matters as set forth in this paragraph.
This Agreement may also be amended from time to time by the Depositor, the
Administrator, the Insurer (so long as the Class A Notes are Outstanding or any
Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default
has occurred and is continuing) and the Owner Trustee, with the prior written
consent of the Rating Agencies and with the prior written consent of the
Indenture Trustee, the Holders (as defined in the Indenture) of Notes evidencing
more than 662/3% of the Outstanding Balance of the Notes, and the consent of the
Holders, 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 any Holder; provided, however, that no such amendment
shall, as evidenced by an Opinion of Counsel, adversely affect the tax status of
the Trust; and provided, further, that no such amendment shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Collateral or distributions that shall be
required to be made for the benefit of the Noteholders or the Holders or (b)
reduce the aforesaid percentage of the Outstanding Balance of the Notes required
to consent to or to waive the requirement for the Holders to consent to any such
amendment, in either case of clause (a) or (b) without the consent of the
holders of all the outstanding Notes, the Insurer (so long as the Class A Notes
are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer
and no Insurer Default has occurred and is continuing) and the Holders.
Notwithstanding the foregoing, no provision of Sections 2.03 or 5.06 hereof
may be amended in any manner unless (i) 100% of the Outstanding Balance of the
Noteholders have
43
consented in writing thereto, (ii) the Rating Agencies have consent in writing
thereto or (iii) the Notes have been paid in full and the Indenture has been
discharged.
Promptly after the execution of any such amendment or consent, the
Administrator shall furnish written notification of the substance of such
amendment or consent to the Holders, the Insurer (so long as the Class A Notes
are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer
and no Insurer Default has occurred and is continuing), the Indenture Trustee
and the Rating Agencies.
It shall not be necessary for the consent of the Holders, the Noteholders
or the Indenture Trustee pursuant to this Section 10.01 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of the Holders provided for in this
Agreement or in any other Operative Agreement) and of evidencing the
authorization of the execution thereof by the Holders shall be subject to such
reasonable requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee and the Administrator shall be entitled
to receive and rely upon an Opinion of Counsel, at the expense of the Trust,
stating that the execution of such amendment is authorized or permitted by this
Agreement. Neither the Owner Trustee nor the Administrator shall be obligated to
enter into any such amendment which affects the Owner Trustee's or
Administrator's own rights, duties or immunities under this Agreement or
otherwise.
Section 10.02 No Legal Title to Trust Estate in Holders. The Holders shall
not have legal title to any part of the Trust Estate and shall only be entitled
to receive distributions with respect to its undivided beneficial interest
therein pursuant to Section 4.02 once all amounts then owing with respect to the
Notes have been paid in accordance with the Indenture. No transfer, by operation
of law of any right, title and interest of the Holders in and to its undivided
beneficial interest in the Trust Estate or hereunder shall operate to terminate
this Agreement or the trusts hereunder or entitle any successor transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
Section 10.03 Pledge of Collateral by Owner Trustee is Binding. The pledge
of the Collateral to the Indenture Trustee by the Trust made under the Indenture
and pursuant to the terms of this Agreement shall bind the Holders and shall be
effective to transfer or convey the rights of the Trust and the Holders in and
to such Collateral to the extent set forth in the Indenture. No purchaser or
other grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such pledge or as to the application of any proceeds
with respect thereto by the Owner Trustee.
Section 10.04 Limitations on Rights of Others. Nothing in this Agreement,
whether express or implied (except for Section 7.04), shall be construed to give
to any Person other than
44
the Owner Trustee and the Holders any legal or equitable right in the Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
Section 10.05 Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all notices shall be in writing and delivered by hand, by
courier or mailed by certified mail, postage prepaid, (a) if to the Owner
Trustee or the Trust, addressed to it at the Owner Trustee's Corporate Trust
Office or to such other address as the Owner Trustee may have set forth in a
written notice to the Holders and the Depositor addressed to it at the address
set forth for such Certificateholders in the Certificate Register; (b) if to the
Administrator, LaSalle Bank National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Global Securities and Trust
Services-GreenPoint 2005-HE3; (c) if to the Depositor, ▇▇▇▇▇▇ ABS Corporation,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage
Backed Finance (GreenPoint 2005-HE3); and (d) if to the Insurer, Ambac Assurance
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Managing Director, (▇▇▇) ▇▇▇-▇▇▇▇. Whenever any notice in writing is
required to be given by the Owner Trustee or the Administrator, such notice
shall be deemed given and such requirement satisfied if such notice is mailed by
certified mail, postage prepaid, addressed as provided above.
Section 10.06 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.07 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.08 Successors and Assigns. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, the Owner Trustee and its successors and assigns and the
Depositor, the Insurer and the Holders and its respective successors, all as
herein provided. This Agreement shall also inure to the benefit of the Insurer.
The Insurer shall be entitled to rely on and enforce all covenants in this
Agreement which confers rights upon the Insurer. Any request, notice, direction,
consent, waiver or other instrument or action by the Holders shall bind the
successors of such Holder.
Section 10.09 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 10.10 Governing Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
45
Section 10.11 No Petition.
(a) The Owner Trustee and the Administrator, by entering into this
Agreement, the Certificateholders, by accepting a Residual Certificate, and
the Indenture Trustee and each Noteholder, by accepting the benefits of
this Agreement, hereby covenant and agree that they will not at any time
institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Residual Certificates, the Notes, this
Agreement or any of the other Operative Agreements.
(b) The Depositor shall not be liable for the default or misconduct of
the Administrator, the Owner Trustee, the Indenture Trustee or the
Certificate Paying Agent under any of the Operative Agreements or otherwise
and the Depositor shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Operative Agreements
that are required to be performed by the Administrator under the
Administration Agreement or the Indenture Trustee under the Indenture.
Section 10.12 No Recourse. The Certificateholders by accepting a Residual
Certificate acknowledges that such Certificate represents a beneficial interest
in the Trust only and does not represent an interest in or an obligation of the
Depositor, the Administrator, the Insurer, the Owner Trustee, any co-trustee,
the Bank or any Affiliate thereof (other than the Trust) and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated in this Agreement, the Residual Certificates or the other
Operative Agreements.
ARTICLE XI
OFFICERS
Section 11.01 Appointment of Officers. The Trust may have one or more
Officers who are hereby empowered to take and are responsible for performing all
ministerial duties on behalf of the Trust pursuant to this Agreement and the
other Operative Agreements, including, without limitation, the execution of the
Officers' Certificate (as defined in the Indenture), the Trust Order (as defined
in the Indenture), the Trust Request (as defined in the Indenture), the annual
compliance report required under Section 3.09 of the Indenture, and any annual
reports, documents and other reports which the Trust is required to file with
the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended. Each of the Chairman of the Board,
the Chief Executive Officer, the President, each Senior Vice President and each
Vice President of the Depositor is hereby appointed as an Officer of the Trust.
The Depositor shall promptly deliver to the Owner Trustee and the Indenture
Trustee a list of its officers who shall become the Officers of the Trust
pursuant to this Section 11.01.
Section 11.02 Officers to Provide Information to the Owner Trustee. It
shall be the duty of each Officer to keep the Owner Trustee reasonably and
promptly informed as to material events relating to the Trust, including,
without limitation, all claims pending or threatened against the Trust, the
purchase and sale of any material portion of the Trust Estate and the execution
by such Officer on behalf of the Trust of any material agreements or
instruments.
46
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
▇▇▇▇▇▇ ABS CORPORATION,
as Depositor
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Managing Director
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: / s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Administrator
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
Acknowledged and Agreed, solely
for purposes of Section 7.02:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
S-1
EXHIBIT A-1
FORM OF CLASS B CERTIFICATE
THIS CLASS B CERTIFICATE IS A REMIC REGULAR INTEREST CERTIFICATE. THIS
CLASS B CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE EXTENT
DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS CLASS B CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS B CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.03 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS B CERTIFICATE MAY BE MADE UNLESS THE TRANSFEREE
PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH CLASS B
CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE AND THE INSURER, TO THE EFFECT THAT SUCH TRANSFEREE IS NOT ACQUIRING THE
CLASS B CERTIFICATE FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) OR TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR TO ANY SUBSTANTIALLY SIMILAR
LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, WHICH
REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE OR THE
INSURER.
NO TRANSFER OF A CLASS B CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE IN ACCORDANCE WITH
SAID ACT AND LAWS. EXCEPT FOR THE INITIAL ISSUANCE OF THE CLASS B CERTIFICATE TO
THE INITIAL HOLDER, THE OWNER TRUSTEE SHALL REQUIRE THE TRANSFEREE TO EXECUTE AN
INVESTMENT LETTER ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE AND THE INSURER CERTIFYING TO THE OWNER TRUSTEE AND THE INSURER
THE FACTS SURROUNDING SUCH TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN
EXPENSE OF THE OWNER TRUSTEE, OR THE INSURER. THE HOLDER OF A CLASS B
CERTIFICATE DESIRING TO EFFECT SUCH TRANSFER SHALL, AND DOES HEREBY AGREE TO,
INDEMNIFY THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR AND THE
INSURER AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT
OR IS NOT MADE IN ACCORDANCE WITH SUCH FEDERAL AND STATE LAWS.
A-1-1
THIS CLASS B CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-1-2
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE3
CLASS B CERTIFICATE
Class: B Cut-Off Date: August 1, 2005
Percentage Interest: [________]% Issue Date: August 25, 2005
First Payment Date: September 15, 2005
No. 1
▇▇▇▇▇▇ PASS-THROUGH SECURITIES INC.
Class B Certificateholder
A-1-3
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee
By:
--------------------
Authenticating Agent
A-1-4
The Trust was created pursuant to a Trust Agreement dated as of August 1,
2005, among ▇▇▇▇▇▇ ABS Corporation (the "Depositor") and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"), as amended and restated by the
Amended and Restated Trust Agreement, dated as of August 1, 2005 (the "Trust
Agreement") among the Depositor, LaSalle Bank National Association, as
administrator (the "Administrator") and the Owner Trustee, a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement.
This Class B Certificate is one of the duly authorized Class B Certificates
designated as "GreenPoint Mortgage Funding Trust 2005-HE3 Asset-Backed
Certificates, Class B" (herein called, together with the GreenPoint Mortgage
Funding Trust 2005-HE3 Asset-Backed Certificates, Class L and the GreenPoint
Mortgage Funding Trust 2005-HE3 Asset-Backed Certificates, Class R, the
"Residual Certificates"). Also issued by the Trust under the Indenture are three
Classes of Notes designated as the Class A Notes, the Class M1 Notes and the
Class M2 Notes (together, the "Notes"). These Class B Certificates are issued
under and are subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Class B Certificate by
virtue of the acceptance hereof assents and by which such holder is bound. The
property of the Trust includes a pool of certain adjustable rate home equity
revolving credit line loans (the "Mortgage Loans") (including any Additional
Balances related thereto).
Under the Transfer and Servicing Agreement dated as of August 1, 2005 among
the Issuer, the Depositor, the Master Servicer and the Indenture Trustee, there
will be distributed on the 15th day of each month or, if such 15th day is not a
Business Day, the next Business Day (the "Payment Date"), commencing on
September 15, 2005, to the Person in whose name this Class B Certificate is
registered at the close of business on the Business Day preceding such Payment
Date (the "Record Date") such Class B Certificateholder's Percentage Interest in
the amount to be distributed to Class B Certificateholders on such Payment Date.
The holder of this Class B Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Class B Certificate are
subordinated to the rights of the Noteholders as described in the Transfer and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable.
The holder of this Class B Certificate, by acceptance of this Class B
Certificate, specifically acknowledges that it has no right to or interest in
any monies at any time held in the Trust Estate prior to the release of such
monies pursuant to Section 5.03(b)(xv) of the Transfer and Servicing Agreement,
such monies being held in trust for the benefit of the Noteholders and the
Insurer. Notwithstanding the foregoing, in the event that it is ever determined
that the monies held in the Trust Estate constitute a pledge of collateral, then
the provisions of the Transfer and Servicing Agreement shall be considered to
constitute a security agreement and the holder of this Class B Certificate
hereby grants to the Indenture Trustee and the Insurer a first priority
perfected security interest in such amounts. In addition, each Class B
Certificateholder, by acceptance of its Class B Certificate, hereby appoints the
Depositor as its agent to pledge a first priority perfected security interest in
the Trust Estate and agrees to execute and deliver such
A-1-5
instruments of conveyance, assignment, grant, confirmation, etc., as well as any
financing statements, in each case as the Insurer shall consider reasonably
necessary in order to perfect the Indenture Trustee's security interest in the
Trust Estate.
Each Class B Certificateholder, by its acceptance of a Class B Certificate,
covenants and agrees that such Class B Certificateholder will not at any time
institute against the Trust, the Seller or the Depositor, or join in any
institution against the Trust, the Seller or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Class B Certificates, the
Trust Agreement or any of the Operative Agreements.
Distributions on this Class B Certificate will be made as provided in the
Transfer and Servicing Agreement and the Indenture by the Owner Trustee by wire
transfer to the Class B Certificateholder of record in the Certificate Register
without the presentation or surrender of this Class B Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Class B Certificate
will be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class B
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Corporate Trust Office.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this Class B
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Transfer and Servicing Agreement or be valid for any purpose.
The Class B Certificates do not represent an obligation of, or an interest
in, the Seller, the Depositor, a Servicer, the Master Servicer, the Insurer, the
Owner Trustee or any Affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement, the Indenture or the Operative
Agreements. In addition, this Class B Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections with respect to the Mortgage Loans, as more specifically set
forth herein, in the Transfer and Servicing Agreement and in the Indenture. A
copy of each of the Transfer and Servicing Agreement and the Trust Agreement may
be examined during normal business hours at the principal office of the
Depositor, and at such other places, if any, designated by the Depositor, by any
Class B Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Administrator and the rights of the Class B Certificateholders
under the Trust Agreement at any time by the Depositor, the Administrator and
the Owner Trustee with the prior written consent of the Insurer and with the
consent of the holders of the Notes and the Class B Certificates evidencing not
less than a majority of the outstanding Notes and the Class B Certificates. Any
such amendment shall be conclusive and binding upon the holder of this Class B
Certificate and on all future holders of this Class B Certificate and of any
Class B Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
A-1-6
Class B Certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the holders of any of the
Class B Certificates (other than the Initial Holder, or the Insurer).
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Class B Certificate is registrable in
the Certificate Register upon surrender of this Class B Certificate for
registration of transfer at the offices or agencies of the Certificate Registrar
maintained by the Owner Trustee in the Corporate Trust Office, accompanied by a
written instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Class B
Certificates in authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is LaSalle Bank
National Association.
The Class B Certificates are issuable only as registered Class B
Certificates without coupons in minimum Percentage Interests of 1%. As provided
in the Trust Agreement and subject to certain limitations therein set forth,
Class B Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate denomination, as requested by the
holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar, the Insurer and any agent of
the Owner Trustee, the Certificate Registrar, or the Insurer may treat the
person in whose name this Class B Certificate is registered as the owner hereof
for all purposes, and none of the Owner Trustee, the Certificate Registrar, the
Insurer nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to Class B
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement, the Indenture and the Transfer and Servicing Agreement and the
disposition of all property held as part of the Trust. The Master Servicer may
at its option redeem the Notes at a price and upon the satisfaction of certain
conditions specified in Section 8.02 of the Transfer and Servicing Agreement,
and if all of the Notes are redeemed, such redemption may result in termination
of the Trust which may effect a transfer of the Class B Certificates; however,
such right of purchase is exercisable, subject to certain restrictions set forth
in the Transfer and Servicing Agreement.
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Class B Certificate
or of any Mortgage Loan or related document.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual or facsimile signature,
this Class B Certificate shall not
A-1-7
entitle the holder hereof to any benefit under the Trust Agreement or the
Transfer and Servicing Agreement or be valid for any purpose.
A-1-8
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Residual Certificate to be duly
executed.
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE3
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee
By:
-----------------------------------------
Name:
Title:
Dated: , 200
----------- -
A-1-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code,
of assignee)
--------------------------------------------------------------------------------
the within Class B Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney to transfer said Class B Certificate on the books
--------------------
of the Certificate Registrar, with full power of substitution in the premises.
Dated:
*
------------------------------
Signature Guaranteed:
*
------------------------------
-----------------------
* NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Class B
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in STAMP
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS L CERTIFICATE
THIS CLASS L CERTIFICATE IS A REMIC RESIDUAL INTEREST CERTIFICATE. THIS
CLASS L CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE EXTENT
DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS CLASS L CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON.
THIS CLASS L CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS L CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.03 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS L CERTIFICATE MAY BE MADE UNLESS THE TRANSFEREE
PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH CLASS L
CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE AND THE INSURER, TO THE EFFECT THAT SUCH TRANSFEREE IS NOT ACQUIRING THE
CLASS L CERTIFICATE FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) OR TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR TO ANY SUBSTANTIALLY SIMILAR
LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, WHICH
REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE OR THE
INSURER.
NO TRANSFER OF A CLASS L CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE IN ACCORDANCE WITH
SAID ACT AND LAWS. EXCEPT FOR THE INITIAL ISSUANCE OF THE CLASS L CERTIFICATE TO
THE INITIAL HOLDER, THE OWNER TRUSTEE SHALL REQUIRE THE TRANSFEREE TO EXECUTE AN
INVESTMENT LETTER ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE AND THE INSURER CERTIFYING TO THE OWNER TRUSTEE AND THE INSURER
THE FACTS SURROUNDING SUCH TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN
EXPENSE OF THE OWNER TRUSTEE, OR THE INSURER. THE HOLDER OF A CLASS L
CERTIFICATE DESIRING TO EFFECT SUCH TRANSFER SHALL, AND DOES HEREBY AGREE TO,
INDEMNIFY THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR AND THE
INSURER AGAINST ANY LIABILITY THAT
A-2-1
MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT OR IS NOT MADE IN ACCORDANCE WITH
SUCH FEDERAL AND STATE LAWS.
NEITHER THIS CLASS L CERTIFICATE, NOR ANY BENEFICIAL INTEREST IN THIS CLASS
L CERTIFICATE, MAY BE TRANSFERRED, SOLD, PLEDGED, OR OTHERWISE DISPOSED OF
UNLESS PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER
TRUSTEE AND THE CERTIFICATE REGISTRAR AN AFFIDAVIT STATING (A) THAT THE PROPOSED
TRANSFEREE IS NOT A "DISQUALIFIED ORGANIZATION" WITHIN THE MEANING OF SECTION
860E(E)(5) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND IS
NOT PURCHASING THE CLASS L CERTIFICATE ON BEHALF OF A DISQUALIFIED ORGANIZATION
AND (B) THAT NO PURPOSE OF SUCH TRANSFER IS TO AVOID OR IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX.
NO TRANSFER OF THIS CLASS L CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS
CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER
U.S. LAW AND THE OTHER OPINIONS AND CERTIFICATES SPECIFIED IN SECTION 3.03 OF
THE AGREEMENT REFERRED TO HEREIN.
THIS CLASS L CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-2-2
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE3
CLASS L CERTIFICATE
Class: L Cut-Off Date: August 1, 2005
Percentage Interest: 100% Issue Date: August 25, 2005
First Payment Date: September 15, 2005
No. 1
▇▇▇▇▇▇ PASS-THROUGH SECURITIES INC.
Class L Certificateholder
A-2-3
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:
-----------------------------------------
Authenticating Agent
A-2-4
The Trust was created pursuant to a Trust Agreement dated as of August 1,
2005, among ▇▇▇▇▇▇ ABS Corporation (the "Depositor") and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"), as amended and restated by the
Amended and Restated Trust Agreement, dated as of August 1, 2005 (the "Trust
Agreement") among the Depositor, LaSalle Bank National Association, as
administrator (the "Administrator") and the Owner Trustee, a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement.
This Class L Certificate is one of the duly authorized Class L Certificates
designated as "GreenPoint Mortgage Funding Trust 2005-HE3 Asset-Backed
Certificates, Class L" (herein called, together with the GreenPoint Mortgage
Funding Trust 2005-HE3 Asset-Backed Certificates, Class B and the GreenPoint
Mortgage Funding Trust 2005-HE3 Asset Backed Certificates, Class R, the
"Residual Certificates"). Also issued by the Trust under the Indenture are three
Classes of Notes designated as the Class A Notes, the Class M1 Notes and the
Class M2 Notes (together, the "Notes"). These Class L Certificates are issued
under and are subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Class L Certificate by
virtue of the acceptance hereof assents and by which such holder is bound. The
property of the Trust includes a pool of certain adjustable rate home equity
revolving credit line loans (the "Mortgage Loans") (including any Additional
Balances related thereto).
Under the Transfer and Servicing Agreement dated as of August 1, 2005 among
the Issuer, the Depositor, the Master Servicer and the Indenture Trustee, there
will be distributed on the 15th day of each month or, if such 15th day is not a
Business Day, the next Business Day (the "Payment Date"), commencing on
September 15, 2005, to the Person in whose name this Class L Certificate is
registered at the close of business on the Business Day preceding such Payment
Date (the "Record Date") such Class L Certificateholder's Percentage Interest in
the amount to be distributed to Class L Certificateholders on such Payment Date.
The holder of this Class L Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Class L Certificate are
subordinated to the rights of the Noteholders as described in the Transfer and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable. The
holder of this Class L Certificate, by acceptance of this Class L Certificate,
specifically acknowledges (i) that it has no right to or interest in any monies
at any time held in the Trust Estate prior to the release of such monies
pursuant to Section 5.03(b)(xv) of the Indenture, such monies being held in
trust for the benefit of the Noteholders and the Transfer and Servicing
Agreement, and (ii) the obligations of the holder of the Class L Certificate in
each Servicing Agreement and the Transfer and Servicing Agreement.
Notwithstanding the foregoing, in the event that it is ever determined that the
monies held in the Trust Estate constitute a pledge of collateral, then the
provisions of the Transfer and Servicing Agreement shall be considered to
constitute a security agreement and the holder of this Class L Certificate
hereby grants to the Indenture Trustee and the Insurer a first priority
perfected security interest in such amounts. In addition, each Class L
Certificateholder, by acceptance of its Class L Certificate, hereby appoints the
Depositor, as its agent to pledge a first priority perfected security interest
in the Trust Estate and agrees to execute and deliver such instruments of
conveyance, assignment, grant, confirmation, etc., as well as any financing
statements, in each
A-2-5
case as the Insurer shall consider reasonably necessary in order to perfect the
Indenture Trustee's security interest in the Trust Estate.
Each Class L Certificateholder, by its acceptance of a Class L Certificate,
covenants and agrees that such Class L Certificateholder will not at any time
institute against the Trust, the Seller or the Depositor, or join in any
institution against the Trust, the Seller or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Class L Certificates, the
Trust Agreement or any of the Operative Agreements.
Distributions on this Class L Certificate will be made as provided in the
Transfer and Servicing Agreement and the Indenture by the Owner Trustee by wire
transfer to the Class L Certificateholder of record in the Certificate Register
without the presentation or surrender of this Class L Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Class L Certificate
will be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class L
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Corporate Trust Office.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this Class L
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Transfer and Servicing Agreement or be valid for any purpose.
The Class L Certificates do not represent an obligation of, or an interest
in, the Seller, the Depositor, a Servicer, the Master Servicer, the Insurer, the
Owner Trustee or any Affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement, the Indenture or the Operative
Agreements. In addition, this Class L Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections with respect to the Mortgage Loans, as more specifically set
forth herein, in the Transfer and Servicing Agreement and in the Indenture. A
copy of each of the Transfer and Servicing Agreement and the Trust Agreement may
be examined during normal business hours at the principal office of the
Depositor, and at such other places, if any, designated by the Depositor, by any
Class L Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Administrator and the rights of the Class L Certificateholders
under the Trust Agreement at any time by the Depositor, the Administrator and
the Owner Trustee with the prior written consent of the Insurer and with the
consent of the holders of the Notes and the Class L Certificates evidencing not
less than a majority of the outstanding Notes and the Class L Certificates. Any
such amendment shall be conclusive and binding upon the holder of this Class L
Certificate and on all future holders of this Class L Certificate and of any
Class L Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this Class L
Certificate. The Trust Agreement also permits the amendment thereof, in certain
limited
A-2-6
circumstances, without the consent of the holders of any of the Class L
Certificates (other than the Initial Holder, or the Insurer).
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Class L Certificate is registrable in
the Certificate Register upon surrender of this Class L Certificate for
registration of transfer at the offices or agencies of the Certificate Registrar
maintained by the Owner Trustee in the Corporate Trust Office, accompanied by a
written instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Class L
Certificates in authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is LaSalle Bank
National Association.
The Class L Certificates are issuable only as registered Class L
Certificates without coupons in minimum Percentage Interests of 100%. As
provided in the Trust Agreement and subject to certain limitations therein set
forth, Class L Certificates are exchangeable for new Class L Certificates
evidencing the same denomination, as requested by the holder surrendering the
same. No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Registrar, the Insurer and any agent of
the Owner Trustee, the Certificate Registrar, or the Insurer may treat the
person in whose name this Class L Certificate is registered as the owner hereof
for all purposes, and none of the Owner Trustee, the Certificate Registrar, the
Insurer nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to Class L
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement, the Indenture and the Transfer and Servicing Agreement and the
disposition of all property held as part of the Trust. The Master Servicer may
at its option redeem the Notes at a price and upon the satisfaction of certain
conditions specified in Section 8.02 of the Transfer and Servicing Agreement,
and if all of the Notes are redeemed, such redemption may result in termination
of the Trust which may effect a transfer of the Class L Certificates; however,
such right of purchase is exercisable, subject to certain restrictions set forth
in the Transfer and Servicing Agreement.
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Class L Certificate
or of any Mortgage Loan or related document.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual or facsimile signature,
this Class L Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or the Transfer and Servicing Agreement or be valid
for any purpose.
A-2-7
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Residual Certificate to be duly
executed.
GREENPOINT MORTGAGE FUNDING
TRUST 2005-HE3
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee
By:
----------------------------------------
Name:
Title:
Dated: , 200
----------- -
A-2-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Class L Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney to transfer said Class L Certificate on the books
--------------------
of the Certificate Registrar, with full power of substitution in the premises.
Dated:
*
-----------------------------
Signature Guaranteed:
*
-----------------------------
----------------------
* NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Class L
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in STAMP
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS R CERTIFICATE
THIS CLASS R CERTIFICATE IS A REMIC RESIDUAL INTEREST CERTIFICATE. THIS
CLASS R CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE EXTENT
DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON.
THIS CLASS R CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.03 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS R CERTIFICATE MAY BE MADE UNLESS THE TRANSFEREE
PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH CLASS R
CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE AND THE INSURER, TO THE EFFECT THAT SUCH TRANSFEREE IS NOT ACQUIRING THE
CLASS R CERTIFICATE FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) OR TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR TO ANY SUBSTANTIALLY SIMILAR
LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, WHICH
REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE OR THE
INSURER.
NO TRANSFER OF A CLASS R CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE IN ACCORDANCE WITH
SAID ACT AND LAWS. EXCEPT FOR THE INITIAL ISSUANCE OF THE CLASS R CERTIFICATE TO
THE INITIAL HOLDER, THE OWNER TRUSTEE SHALL REQUIRE THE TRANSFEREE TO EXECUTE AN
INVESTMENT LETTER ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE AND THE INSURER CERTIFYING TO THE OWNER TRUSTEE AND THE INSURER
THE FACTS SURROUNDING SUCH TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN
EXPENSE OF THE OWNER TRUSTEE, OR THE INSURER. THE HOLDER OF A CLASS R
CERTIFICATE DESIRING TO EFFECT SUCH TRANSFER SHALL, AND DOES HEREBY AGREE TO,
INDEMNIFY THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR AND THE
INSURER AGAINST ANY LIABILITY THAT
A-3-1
MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT OR IS NOT MADE IN ACCORDANCE WITH
SUCH FEDERAL AND STATE LAWS.
NEITHER THIS CLASS R CERTIFICATE, NOR ANY BENEFICIAL INTEREST IN THIS CLASS
R CERTIFICATE, MAY BE TRANSFERRED, SOLD, PLEDGED, OR OTHERWISE DISPOSED OF
UNLESS PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER
TRUSTEE AND THE CERTIFICATE REGISTRAR AN AFFIDAVIT STATING (A) THAT THE PROPOSED
TRANSFEREE IS NOT A "DISQUALIFIED ORGANIZATION" WITHIN THE MEANING OF SECTION
860E(E)(5) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND IS
NOT PURCHASING THE CLASS R CERTIFICATE ON BEHALF OF A DISQUALIFIED ORGANIZATION
AND (B) THAT NO PURPOSE OF SUCH TRANSFER IS TO AVOID OR IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX.
NO TRANSFER OF THIS CLASS R CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS
CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER
U.S. LAW AND THE OTHER OPINIONS AND CERTIFICATES SPECIFIED IN SECTION 3.03 OF
THE AGREEMENT REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3-2
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE3
CLASS R CERTIFICATE
Class: R
Percentage Interest: 100% Cut-Off Date: August 1, 2005
First Payment Date: September 15, 2005 Issue Date: August 25, 2005
No. 1
▇▇▇▇▇▇ PASS-THROUGH SECURITIES INC.
Class R Certificateholder
A-3-3
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
----------------------------------
Authenticating Agent
A-3-4
The Trust was created pursuant to a Trust Agreement dated as of August 1,
2005, among ▇▇▇▇▇▇ ABS Corporation (the "Depositor") and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"), as amended and restated by the
Amended and Restated Trust Agreement, dated as of August 1, 2005 (the "Trust
Agreement") among the Depositor, LaSalle Bank National Association, as
administrator (the "Administrator") and the Owner Trustee, a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement.
This Class R Certificate is one of the duly authorized Class R Certificates
designated as "GreenPoint Mortgage Funding Trust 2005-HE3 Asset-Backed
Certificates, Class R" (herein called, together with the GreenPoint Mortgage
Funding Trust 2005-HE3 Asset-Backed Certificates, Class B and the GreenPoint
Mortgage Funding Trust 2005-HE3 Asset Backed Certificates, Class L, the
"Residual Certificates"). Also issued by the Trust under the Indenture are three
Classes of Notes designated as the Class A Notes, the Class M1 Notes and the
Class M2 Notes (together, the "Notes"). These Class R Certificates are issued
under and are subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Class R Certificate by
virtue of the acceptance hereof assents and by which such holder is bound. The
property of the Trust includes a pool of certain adjustable rate home equity
revolving credit line loans (the "Mortgage Loans") (including any Additional
Balances related thereto).
Under the Transfer and Servicing Agreement dated as of August 1, 2005 among
the Issuer, the Depositor, the Master Servicer and the Indenture Trustee, there
will be distributed on the 15th day of each month or, if such 15th day is not a
Business Day, the next Business Day (the "Payment Date"), commencing on
September 15, 2005, to the Person in whose name this Class R Certificate is
registered at the close of business on the Business Day preceding such Payment
Date (the "Record Date") such Class R Certificateholder's Percentage Interest in
the amount to be distributed to Class R Certificateholders on such Payment Date.
The holder of this Class R Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Class R Certificate are
subordinated to the rights of the Noteholders as described in the Transfer and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable. The
holder of this Class R Certificate, by acceptance of this Class R Certificate,
specifically acknowledges (i) that it has no right to or interest in any monies
at any time held in the Trust Estate prior to the release of such monies
pursuant to Section 5.03(b)(xv) of the Indenture, such monies being held in
trust for the benefit of the Noteholders and the Transfer and Servicing
Agreement, and (ii) the obligations of the holder of the Class R Certificate in
each Servicing Agreement and the Transfer and Servicing Agreement.
Notwithstanding the foregoing, in the event that it is ever determined that the
monies held in the Trust Estate constitute a pledge of collateral, then the
provisions of the Transfer and Servicing Agreement shall be considered to
constitute a security agreement and the holder of this Class R Certificate
hereby grants to the Indenture Trustee and the Insurer a first priority
perfected security interest in such amounts. In addition, each Class R
Certificateholder, by acceptance of its Class R Certificate, hereby appoints the
Depositor, as its agent to pledge a first priority perfected security interest
in the Trust Estate and agrees to execute and deliver such instruments of
conveyance, assignment, grant, confirmation, etc., as well as any financing
statements, in each
A-3-5
case as the Insurer shall consider reasonably necessary in order to perfect the
Indenture Trustee's security interest in the Trust Estate.
Each Class R Certificateholder, by its acceptance of a Class R Certificate,
covenants and agrees that such Class R Certificateholder will not at any time
institute against the Trust, the Seller or the Depositor, or join in any
institution against the Trust, the Seller or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Class R Certificates, the
Trust Agreement or any of the Operative Agreements.
Distributions on this Class R Certificate will be made as provided in the
Transfer and Servicing Agreement and the Indenture by the Owner Trustee by wire
transfer to the Class R Certificateholder of record in the Certificate Register
without the presentation or surrender of this Class R Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Class R Certificate
will be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class R
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Corporate Trust Office.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this Class R
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Transfer and Servicing Agreement or be valid for any purpose.
The Class R Certificates do not represent an obligation of, or an interest
in, the Seller, the Depositor, a Servicer, the Master Servicer, the Insurer, the
Owner Trustee or any Affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement, the Indenture or the Operative
Agreements. In addition, this Class R Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections with respect to the Mortgage Loans, as more specifically set
forth herein, in the Transfer and Servicing Agreement and in the Indenture. A
copy of each of the Transfer and Servicing Agreement and the Trust Agreement may
be examined during normal business hours at the principal office of the
Depositor, and at such other places, if any, designated by the Depositor, by any
Class R Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Administrator and the rights of the Class R Certificateholders
under the Trust Agreement at any time by the Depositor, the Administrator and
the Owner Trustee with the prior written consent of the Insurer and with the
consent of the holders of the Notes and the Class R Certificates evidencing not
less than a majority of the outstanding Notes and the Class R Certificates. Any
such amendment shall be conclusive and binding upon the holder of this Class R
Certificate and on all future holders of this Class R Certificate and of any
Class R Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this Class R
Certificate. The Trust Agreement also permits the amendment thereof, in certain
limited
A-3-6
circumstances, without the consent of the holders of any of the Class R
Certificates (other than the Initial Holder, or the Insurer).
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Class R Certificate is registrable in
the Certificate Register upon surrender of this Class R Certificate for
registration of transfer at the offices or agencies of the Certificate Registrar
maintained by the Owner Trustee in the Corporate Trust Office, accompanied by a
written instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Class R
Certificates in authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is LaSalle Bank
National Association.
The Class R Certificates are issuable only as registered Class R
Certificates without coupons in minimum Percentage Interests of 100%. As
provided in the Trust Agreement and subject to certain limitations therein set
forth, Class R Certificates are exchangeable for new Class R Certificates in
authorized denominations evidencing the same aggregate denomination, as
requested by the holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar, the Insurer and any agent of
the Owner Trustee, the Certificate Registrar, or the Insurer may treat the
person in whose name this Class R Certificate is registered as the owner hereof
for all purposes, and none of the Owner Trustee, the Certificate Registrar, the
Insurer nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to Class R
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement, the Indenture and the Transfer and Servicing Agreement and the
disposition of all property held as part of the Trust. The Master Servicer may
at its option redeem the Notes at a price and upon the satisfaction of certain
conditions specified in Section 8.02 of the Transfer and Servicing Agreement,
and if all of the Notes are redeemed, such redemption may result in termination
of the Trust which may effect a transfer of the Class R Certificates; however,
such right of purchase is exercisable, subject to certain restrictions set forth
in the Transfer and Servicing Agreement.
The recitals contained herein shall be taken as the statements of the
Depositor or the Master Servicer, as the case may be, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Class R Certificate
or of any Mortgage Loan or related document.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual or facsimile signature,
this Class R Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or the Transfer and Servicing Agreement or be valid
for any purpose.
A-3-7
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Residual Certificate to be duly
executed.
GREENPOINT MORTGAGE FUNDING
TRUST 2005-HE3
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By:
---------------------------------------
Name:
Title:
Dated: , 200
--------- -
A-3-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Class R Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney to transfer said Class R Certificate on the books
--------------------
of the Certificate Registrar, with full power of substitution in the premises.
Dated:
*
----------------------------------------------
Signature Guaranteed:
*
----------------------------------------------
-----------------
* NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Class R
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in STAMP
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-3-9
EXHIBIT B
[Reserved]
B-1
EXHIBIT C
FORM OF CERTIFICATE OF TRUST OF
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE3
THIS Certificate of Trust of GreenPoint Mortgage Funding Trust 2005-HE3
(the "Trust"), is being duly executed and filed by the undersigned, as trustee,
to form a statutory trust under the Delaware Statutory Trust Act (12 DEL. CODE,
Sections 3801 et seq.) (the "Act")
1. NAME. The name of the statutory trust formed hereby is "GREENPOINT
MORTGAGE FUNDING TRUST 2005-HE3."
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware are WILMINGTON TRUST COMPANY, ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the owner trustee of the Trust,
has executed this Certificate of Trust in accordance with Section 3811(a) of the
Act.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
-----------------------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF RULE 144A INVESTMENT LETTER
------------------
Date
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Global Securities and Trust Services-GreenPoint 2005-HE3
Re: GreenPoint Mortgage Funding Trust 2005-HE3 Residual Certificate, Series
2005-HE3
Ladies and Gentlemen:
In connection with our acquisition of the GreenPoint Mortgage Funding Trust
2005-HE3 Residual Certificate, Series 2005-HE3 (the "Certificate"), we certify
that (a) we understand that the Certificate has not been registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificate, (c) we
have had the opportunity to ask questions of and receive answers from the ▇▇▇▇▇▇
ABS Corporation (the "Depositor") concerning the purchase of the Certificate and
all matters relating thereto or any additional information deemed necessary to
our decision to purchase the Certificate, (d) we have not, nor has anyone acting
on our behalf, offered, transferred, pledged, sold or otherwise disposed of the
Certificate or any interest in the Certificate, or solicited any offer to buy,
transfer, pledge or otherwise dispose of the Certificate or any interest in the
Certificate from any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action
that would constitute a distribution of the Certificate under the Act or that
would render the disposition of the Certificate a violation of Section 5 of the
Act or any state securities laws or require registration pursuant thereto, and
we will not act, or authorize any person to act, in such manner with respect to
the Certificate and (e) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act ("Rule 144A"). We are aware that the sale to
us is being made in reliance on Rule 144A.
We are acquiring the Certificate for our own account or for resale pursuant
to Rule 144A and understand that such Certificate may be resold, pledged or
transferred only (1) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A or (2) pursuant to another
exemption from registration under the Act.
In addition, we hereby certify that we are not, and are not purchasing the
Certificate for or on behalf of, an employee benefit plan or other retirement
arrangement that is subject to the Employee Retirement Income Security Act of
1974, as amended or to Section 4975 of the
D-1-1
Internal Revenue Code of 1986, as amended (the "Code") or to any substantially
similar law, or any entity deemed to hold the plan assets of the foregoing.
Moreover, we hereby certify that we are a United States person within the
meaning of Section 7701(a)(30) of the Code.
We hereby acknowledge that under the terms of the Trust Agreement among
▇▇▇▇▇▇ ABS Corporation, as Depositor, Wilmington Trust Company, as Owner
Trustee, and LaSalle Bank National Association, as Administrator, dated as of
August 1, 2005, no transfer of the Certificates shall be permitted to be made to
any person unless the Certificate Registrar has received a certificate from such
transferee in the form hereof.
We hereby indemnify the Depositor, Certificate Registrar, the Insurer and
the Owner Trustee against any liability that may result to either of them if our
transfer or other disposition of any Certificates (or any interest therein) is
not exempt from the registration requirements of the Act and any applicable
state securities laws or is not made in accordance with such federal and state
laws, the provisions of this certificate or the applicable provisions of the
Indenture.
Very truly yours,
[Name of Transferee]
By:
----------------------------
Name:
Title:
CC: Wilmington Trust Company, as Owner Trustee
Ambac Assurance Corporation, as Insurer
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF NON-RULE 144A INVESTMENT LETTER
------------------
Date
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Global Securities and Trust Services-GreenPoint 2005-HE3
Re: GreenPoint Mortgage Funding Trust 2005-HE3 Residential Certificate
Series 2005-1
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced certificates
(the "Certificates") we certify that (a) we understand that the Certificates
have not been registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities laws and are being transferred to us in a
transaction that is exempt from the registration requirements of the Act and any
such laws, (b) we are an "accredited investor," as defined in Rule 501(a)(1),
(2), (3) or (7) under the Act, and have such knowledge and experience in
financial and business matters that we are capable of evaluating the merits and
risks of investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase of
the Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (f) below), (e) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action that would result in a violation of Section 5 of the Act
or any state securities laws and (f) we will not sell, transfer or otherwise
dispose of any Certificates unless (1) such sale, transfer or other disposition
is made pursuant to an effective registration statement under the Act and in
compliance with any relevant state securities laws or is exempt from such
registration requirements and, if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Amended and Restated Trust Agreement
dated as of August 1, 2005 (the "Trust Agreement"), among ▇▇▇▇▇▇ ABS
Corporation, as Depositor,
D-2-1
Wilmington Trust Company, as Owner Trustee and LaSalle Bank National
Association, as Administrator.
In addition, we hereby certify that we are not, and are not purchasing the
Certificate for or on behalf of, an employee benefit plan or other retirement
arrangement that is subject to the Employee Retirement Income Security Act of
1974, as amended, or to Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), or to any substantially similar law, or any entity deemed
to hold the plan assets of the foregoing.
Moreover, we hereby certify that we are a United States person within the
meaning of Section 7701(a)(30) of the Code.
We hereby acknowledge that under the terms of the Trust Agreement, no
transfer of the Certificates shall be permitted to be made to any person unless
the Certificate Registrar has received a certificate from such transferee in the
form hereof.
We hereby indemnify the Owner Trustee, the Depositor, the Insurer and the
Certificate Registrar against any liability that may result to either of them if
our transfer or other disposition of any Certificates (or any interest therein)
is not exempt from the registration requirements of the Act and any applicable
state securities laws or is not made in accordance with such federal and state
laws.
Very truly yours,
[Name of Transferee]
By:
-----------------------------
Name:
Title:
CC: Wilmington Trust Company, as Owner Trustee
Ambac Assurance Corporation, as Insurer
D-2-2
EXHIBIT E
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
This certificate of Non-Foreign status ("certificate") is delivered
pursuant to Section 3.03 of the Amended and Restated Trust Agreement dated as of
August 1, 2005 (the "Agreement"), among ▇▇▇▇▇▇ ABS Corporation, as Depositor,
Wilmington Trust Company, as Owner Trustee, and LaSalle Bank National
Association, as Administrator, in connection with the acquisition of, transfer
to or possession by the undersigned, whether as beneficial owner (the
"Beneficial Owner"), or nominee on behalf of the Beneficial Owner of the Class
[L][R] Certificates, (the "Class [L][R] Certificate"). Capitalized terms used
but not defined in this certificate have the respective meanings given them in
the Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee), and
in all cases sign and otherwise complete Part III. In addition, each holder
shall submit with the certificate an IRS Form W-9 relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or 1446 of
the Internal Revenue Code (relating to withholding tax on foreign partners) do
not apply in respect of the Class [L][R] Certificate held by the undersigned,
the undersigned hereby certifies:
PART I - COMPLETE EITHER A OR B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is) not a Non-resident alien for
purposes of U.S. Income Taxation;
2. My (The Beneficial Owner's) name and home address are:
--------------------------------------------------------------
--------------------------------------------------------------
; and
--------------------------------------------------------
3. My (The Beneficial Owner's) U.S. Taxpayer Identification
Number (Social Security Number) is __________________________.
B. Corporate, Partnership or other entity as Beneficial Owner
1. (Name of the Beneficial Owner) is not a foreign corporation,
foreign partnership, foreign trust or foreign estate (as those terms
are defined in the Code and Treasury Regulations);
2. The Beneficial Owner's office address and place of
incorporation (if applicable) is __________________________; and
3. The Beneficial Owner's U.S. employer identification number is
__________________________.
E-1
PART II - NOMINEES
If the undersigned is the nominee for the Beneficial Owner, the undersigned
certifies that this certificate has been made in reliance upon information
contained in:
an IRS Form W-9
-----
a form such as this or substantially similar
-----
provided to the undersigned by an appropriate person and (i) the
undersigned agrees to notify the Trust at least thirty (30) days prior to the
date that the form relied upon becomes obsolete, and (ii) in connection with
change in Beneficial Owners, the undersigned agrees to submit a new Certificate
of Non-Foreign Status to the Trust promptly after such change.
PART III - DECLARATION
The undersigned, as the Beneficial Owner or a nominee thereof, agrees to
notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this certificate
and to the best of my knowledge and belief it is true, correct and complete and
will further declare that I will inform the Trust of any change in the
information provided above, and, if applicable, I further declare that I have
the authority* to sign this document.
------------------------------
Name
------------------------------
Title (if applicable)
-------------------------------
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney
must accompany this certificate.
E-2
EXHIBIT F-1
FORM OF CLASS [L][R] CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
-------------------
Date
Re: GreenPoint Mortgage Funding Trust 2005-HE3
Series 2005-HE3
__________________________________(the "Transferor") has reviewed the attached
affidavit of _____________________________(the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to the Class [L][R] Certificate. In addition, the Transferor has
conducted a reasonable investigation at the time of the transfer and found that
the Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
-------------------------------
Name:
Title:
F-1-1
EXHIBIT F-2
FORM OF CLASS [L][R] CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER],_______________ being first duly sworn, deposes and says:
1. That he [she] is [title of officer] ________________________ of [name of
Purchaser] _________________________________________ (the "Purchaser"), a
_______________________ [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is ______________.
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code") and will not be a "disqualified organization" as of
__________________ [date of transfer], and that the Purchaser is not acquiring a
Class [L][R] Certificate (as defined in the Agreement) for the account of, or as
agent (including a broker, nominee, or other middleman) for, any person or
entity from which it has not received an affidavit substantially in the form of
this affidavit.
4. That the Purchaser is not an employee benefit plan or other retirement
arrangement that is subject to the Employee Retirement Income Security Act of
1974, as amended, or to Section 4975 of the Code or to any substantially similar
law, or any entity deemed to hold the plan assets of the foregoing.
5. That the Purchaser hereby acknowledges that under the terms of the
Amended and Restated Trust Agreement dated as of August 1, 2005, among ▇▇▇▇▇▇
ABS Corporation, as Depositor, LaSalle Bank National Association, as
Administrator, and Wilmington Trust Company, as Owner Trustee, no transfer of a
Class [L][R] Certificate shall be permitted to be made to any person unless the
Certificate Registrar, the Depositor and the Owner Trustee have received a
certificate from such transferee containing the representations in paragraphs 3,
4 and 5 hereof.
6. That the Purchaser does not hold REMIC residual securities as nominee to
facilitate the clearance and settlement of such securities through electronic
book-entry changes in accounts of participating organizations (such entity, a
"Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the assessment
or collection of any federal, state or local taxes legally required to be paid
with respect to such
F-2-1
Class [L][R] Certificate, and that the Purchaser has provided financial
statements or other financial information requested by the transferor in
connection with the transfer of the Class [L][R] Certificate in order to permit
the transferor to assess the financial capability of the Purchaser to pay such
taxes.
8. That the Purchaser will not transfer a Class [L][R] Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10 hereof are
not satisfied or that the Purchaser has reason to believe does not satisfy the
requirements set forth in paragraph 7 hereof, and (ii) without obtaining from
the prospective Purchaser an affidavit substantially in this form and providing
to the Indenture Trustee a written statement substantially in the form of
Exhibit F-1 to the Trust Agreement.
9. That the Purchaser understands that, as the holder of a Class [L][R]
Certificate, the Purchaser may incur tax liabilities in excess of any cash flows
generated by the Class [L][R] Certificate and that it intends to pay taxes
associated with holding such Class [L][R] Certificate as they become due.
10. That the Purchaser (i) is a U.S. Person or (ii) is a Non-U.S. Person
that holds a Class [L][R] Certificate in connection with the conduct of a trade
or business within the United States and has furnished the transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8 ECI
(Certificate of Foreign Person's Claim for exception From Withholding on Income
Effectively Connected with the Conduct of a Trade or Business in the United
States) or successor form at the time and in the manner required by the Code.
"Non-U.S. Person" means any person other than (i) a citizen or resident of the
United States; (ii) a corporation (or entity treated as a corporation for tax
purposes) created or organized in the United States or under the laws of the
United States or of any state thereof, including, for this purpose, the District
of Columbia; (iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the United States
or of any state thereof, including, for this purpose, the District of Columbia
(unless provided otherwise by future Treasury regulations); (iv) an estate whose
income is includible in gross income for United States income tax purposes
regardless of its source; (v) 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 U.S. Persons have authority to control all substantial decisions of
the trust; (vi) and, to the extent provided in Treasury regulations, certain
trusts in existence prior to August 20, 1996 that are treated as United States
persons prior to such date and elect to continue to be treated as United States
persons.
11. That the Purchaser agrees to such amendments of the Trust Agreement as
may be required to further effectuate the restrictions on transfer of any Class
[L][R] Certificate to such a "disqualified organization," an agent thereof, a
Book-Entry Nominee, or a person that does not satisfy the requirements of
paragraph 7 and paragraph 10 hereof.
F-2-2
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________ 20__.
--------------------------------------
[name of Purchaser]
By:
---------------------------------
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________ 20__.
NOTARY PUBLIC
---------------------------------
COUNTY OF
--------------------
STATE OF
--------------------
My commission expires the _____ day of __________ 20__.
F-2-3
EXHIBIT G
OWNER TRUSTEE FEE LETTER AGREEMENT
G-1