EXHIBIT 4.1
GREENWICH CAPITAL ACCEPTANCE, INC.
Depositor
and
THE BANK OF NEW YORK
Trustee
-------------------------------
TRUST AGREEMENT
Dated as of October 1, 1999
-------------------------------
Greenwich Capital Acceptance, Inc.
Resecuritization Mortgage Trust
Series 1999-B
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.................................................2
ARTICLE II
CONVEYANCE OF THE UNDERLYING CERTIFICATE; ORIGINAL ISSUANCE OF
CERTIFICATES
Section 2.01. Conveyance of the Underlying Certificate.....................10
Section 2.02. Acceptance by Trustee........................................11
Section 2.03. Representations and Warranties of the Depositor..............12
Section 2.04. Issuance of Certificates.....................................14
Section 2.05. Miscellaneous REMIC Provisions...............................14
Section 2.06. Presentation for Transfer....................................14
ARTICLE III
ADMINISTRATION OF THE TRUST FUND; PAYMENTS AND REPORTS TO
CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust Fund.............................15
Section 3.02. Certificate Account..........................................16
Section 3.03. Permitted Withdrawals from the Certificate Account...........17
Section 3.04. Distributions................................................17
Section 3.05. Statements to Certificateholders.............................19
Section 3.06. Reports of the Trustee; Certificate Account..................20
Section 3.07. Access to Certain Documentation and Information..............20
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates.............................................21
Section 4.02. Book-Entry Certificates......................................21
Section 4.03. Registration of Transfer and Exchange of Certificates........22
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates............26
Section 4.05. Persons Deemed Owners........................................27
Section 4.06. Maintenance of Office or Agency..............................27
ARTICLE V
THE TRUSTEE
Section 5.01. Duties of Trustee............................................28
Section 5.02. Certain Matters Affecting the Trustee........................29
Section 5.03. Trustee Not Liable for Certificates..........................30
Section 5.04. Trustee May Own Certificates.................................30
Section 5.05. Indemnification of the Trustee...............................30
Section 5.06. Eligibility Requirements for the Trustee.....................31
Section 5.07. Resignation and Removal of the Trustee.......................31
Section 5.08. Successor Trustee............................................32
Section 5.09. Merger or Consolidation of Trustee...........................32
Section 5.10. Appointment of Co-Trustee or Separate Trustee................32
Section 5.11. Trustee's Fees and Expenses..................................33
Section 5.12. Limitation of Liability......................................34
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liability of the Depositor...................................35
Section 6.02. Merger, Consolidation or Conversion of the Depositor.........35
Section 6.03. Limitation on Liability of the Depositor and Others..........35
ARTICLE VII
TERMINATION
Section 7.01. Termination..................................................37
Section 7.02. Additional Termination Requirements..........................38
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment....................................................39
Section 8.02. Action Under and Conflicts With the Underlying Agreement.....40
Section 8.03. Recordation of Agreement.....................................40
Section 8.04. Limitation on Rights of Certificateholders...................40
Section 8.05. Governing Law................................................41
Section 8.06. Notices......................................................41
Section 8.07. Severability of Provisions...................................41
Section 8.08. Successors and Assigns.......................................42
Section 8.09. Article and Section Headings.................................42
Section 8.10. Certificates Nonassessable and Fully Paid....................42
Schedule I - Schedule of Underlying Certificate Information................A-1
Exhibit A - Form of Class A Certificate....................................A-1
Exhibit B - Form of Class T Certificate....................................B-1
Exhibit C - Form of Residual Certificate...................................C-1
Exhibit D - Form of Reverse of Certificate.................................D-1
Exhibit E - Form of Transferor Affidavit...................................E-1
Exhibit F - Form of Transfer Affidavit for the Class A-R Certificate ......F-1
TRUST AGREEMENT, dated as of October 1, 1999, by and between Greenwich
Capital Acceptance, Inc., as depositor (the "Depositor"), and The Bank of New
York, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Depositor and the Trustee desire to enter into a trust
agreement dated as of the date hereof (the "Trust Agreement");
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article. Unless otherwise specified, all
calculations described herein shall be made on the basis of an assumed 360-day
year consisting of twelve thirty-day months.
Agreement: This Trust Agreement and all amendments hereof and supplements
hereto.
Accretion Termination Date: With respect to the Class A-4 Certificates,
the Distribution Date following the Distribution Date on which the Certificate
Principal Balances of the Class A-3 Certificates have been reduced to zero.
Accrual Distribution Amount: With respect to any Distribution Date, the
amount of interest accrued on the Class A-4 Certificates but not distributable
as interest thereon on such Distribution Date in accordance with clause (i) of
Section 3.02(a) hereof.
Available Funds: As of any date of determination and with respect to any
Class of Certificates, the aggregate amount on deposit in the related
Certificate Account, net of any portion thereof which represents amounts
payable pursuant to clauses (ii), (iii) and (iv) of Section 3.03.
Basic Principal Distribution Amount: With respect to any Distribution
Date, the sum of the Scheduled Principal Distribution Amount and the Principal
Prepayment Distribution Amount.
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee, which shall initially include the Class X-0, Xxxxx
X-0, Class A-3, Class A-4 and Class A-5 Certificates.
Book-Entry Underlying Certificate: The Underlying Certificate registered
in the name of the Depository or its nominee.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banks in the State of New York are authorized or obligated by law
to be closed.
Certificate: Any one of the Class X-0, Xxxxx X-0, Class A-3, Class A-4,
Class A-5, Class T and Class A-R Certificates, executed and countersigned by
the Trustee substantially in the forms attached hereto.
Certificate Account: The account established with respect to the Trust
Fund, which shall at all times be an Eligible Account, created and maintained
by the Trustee pursuant to Section 3.02. Funds deposited in the Certificate
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that neither a Disqualified
Organization nor a Non-U.S. Person shall be a Holder of a Residual Certificate
for any purpose hereof and, solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor or any Affiliate thereof shall be deemed not to be outstanding and
the Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent has been obtained, except as otherwise provided in
Section 9.01. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and participating members thereof, except as
otherwise specified herein; provided, however, that the Trustee shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate, as reflected on the books of
an indirect participating brokerage firm for which a Depository Participant
acts as agent, if any, and otherwise on the books of a Depository Participant,
if any, and otherwise on the books of the Depository.
Certificate Principal Balance: As to any Distribution Date and each
Certificate, the initial Certificate Principal Balance of such Certificate as
indicated on the face thereof, less all amounts distributed to Holders of such
Certificate on previous Distribution Dates on account of principal pursuant to
Section 3.04, and less all losses allocated to such Class pursuant to Section
3.04(d); provided that on each Distribution Date preceding the Accretion
Termination Date, the Accrual Distribution Amount will be added to the
Certificate Principal Balances of the Class A-4 Certificates on a pro rata
basis.
Certificate Register: The register maintained pursuant to Section
4.02(a).
Class: With respect to any Certificates, all of the Certificates bearing
the same class designation.
Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates,
Class A-4 Certificates and Class A-5 Certificates: The Certificates executed
and countersigned by the Trustee substantially in the form set forth in
Exhibit A hereto.
Class A-5 Pro Rata Distribution Amount: With respect to any Distribution
Date, the product of (a) the Class A-5 Pro Rata Percentage and (b) the
Scheduled Principal Distribution Amount.
Class A-5 Prepayment Distribution Amount: With respect to any
Distribution Date, the product of (a) the Principal Prepayment Distribution
Amount, (b) the Class A-5 Pro Rata Percentage and (c) the Shift Percentage
(such product in no event to exceed 100% of the Basic Principal Distribution
Amount).
Class A-5 Pro Rata Percentage: With respect to any Distribution Date, a
fraction, the numerator of which is the aggregate of the Certificate Principal
Balances of the Class A-5 Certificates on such Distribution Date and the
denominator of which is the aggregate of the Certificate Principal Balances of
all Classes of Certificates on such Distribution Date.
Class A-5 Priority Distribution Amount: With respect to any Distribution
Date, the sum of (i) the Class A-5 Pro Rata Distribution Amount and (ii) the
Class A-5 Prepayment Distribution Amount.
Class T Certificate: The Certificate executed and countersigned by the
Trustee substantially in the form set forth in Exhibit B hereto.
Class T Pro Rata Distribution Amount: With respect to any Distribution
Date, the product of (a) the Class T Pro Rata Percentage and (b) the Basic
Principal Distribution Amount.
Class T Pro Rata Percentage: With respect to any Distribution Date, a
fraction, the numerator of which is the Certificate Principal Balance of the
Class T Certificate on such Distribution Date and the denominator of which is
the aggregate of the Certificate Principal Balances of all Classes of
Certificates on such Distribution Date.
Class A-R Certificate: The Certificate executed and countersigned by the
Trustee substantially in the form set forth in Exhibit C hereto.
Closing Date: October 28, 1999.
Code: The Internal Revenue Code of 1986, as amended.
Corporate Trust Office: The principal corporate trust office of the
Trustee in the State of New York at which at any particular time its corporate
trust business with respect to this Agreement shall be administered, which
office at the date of the execution of this Agreement is located at 000
Xxxxxxx Xxxxxx - 00X, Xxx Xxxx, Xxx Xxxx 00000.
Definitive Certificate: Any definitive, fully registered Certificate.
Depositor: Greenwich Capital Acceptance, Inc., a Delaware corporation, or
its successors in interest.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede
& Co. The Depository shall at all times be a "clearing corporation" as defined
in Section 8-102(3) of the Uniform Commercial Code of the State of New York
and a "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934, as amended.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Disqualified Organization: As defined in Section 860E(e)(5) of the Code.
Distribution Date: The 19th day of each month, or if such 19th day is not
a "Business Day" (as defined in the Underlying Agreement), the first Business
Day following such 19th day, beginning on November 19, 1999.
Eligible Account: A segregated account that is (i) an account or accounts
maintained with a federal or state chartered depository institution or trust
company the short-term unsecured debt obligations of which (or, in the case of
a depository institution or trust company that is the principal subsidiary of
a holding company, the short-term unsecured debt obligations of such holding
company) are A-1 by each Rating Agency (or comparable ratings if Standard &
Poor's and Duff & Xxxxxx are not the Rating Agencies) at the time any amounts
are held on deposit therein, (ii) an account or accounts the deposits in which
are fully insured by the Federal Deposit Insurance Corporation (to the limits
established by such corporation), the uninsured deposits in which account are
otherwise secured such that, as evidenced by an opinion of counsel delivered
to the Trustee and to each Rating Agency, the Certificateholders will have a
claim with respect to the funds in such account or a perfected first priority
security interest against such collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account
is maintained, (iii) a trust account or accounts maintained with the trust
department of a federal or state chartered depository institution, national
banking association or trust company acting in its fiduciary capacity or (iv)
otherwise acceptable to each Rating Agency without reduction or withdrawal of
their then current ratings of the Certificates as evidenced by a letter from
each Rating Agency to the Trustee.
Initial Class Certificate Principal Balance: With respect to Class A-1,
$224,000,000; with respect to Class A-2, $29,613,000; with respect to Class
A-3, $19,900,000; with respect to Class A-4, $13,708,000; with respect to
Class A-5, $31,928,500; with respect to Class T, $135,000; and with respect to
Class A-R, $48.00.
Interest Accrual Period: As to any Distribution Date, the calendar month
preceding the month in which such Distribution Date occurs.
Investment Company Act: The Investment Company Act of 1940, as amended.
Majority in Interest: As to any Class of Certificates, the Holders of
Certificates of such Class evidencing, in the aggregate, at least 51% of the
Percentage Interests evidenced by all Certificates of such Class.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the "Net
Prepayment Interest Shortfalls" (as defined in the Underlying Agreement), if
any, allocated to the Underlying Certificate on the related Underlying
Remittance Date pursuant to the Underlying Agreement.
Non-Registered Certificate: A Certificate other than a Registered
Certificate.
Officers' Certificate: A certificate signed by the Chairman of the Board,
the President or a Vice President or Assistant Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor or in-house counsel for a Person that is a transferor or
transferee in respect of a Transfer of a Certificate, which opinion is
reasonably acceptable to the Trustee; provided, however, that any opinion of
counsel relating to (i) the qualification of any account required to be
maintained pursuant to this Agreement as an Eligible Account or (ii) the
qualification of the Trust Fund, as a REMIC or compliance with the REMIC
Provisions, shall be an opinion of independent counsel.
Ownership Interest: As to any Certificate, any ownership interest in such
Certificate including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or
beneficial.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and countersigned under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Pass-Through Rate: With respect to each Class and any Distribution Date,
6.75% per annum.
Percentage Interest: With respect to any Certificate, the "Denomination"
thereof set forth in such Certificate divided by the aggregate Initial
Certificate Principal Balance of the related Class of Certificates.
Permitted Investments: At any time, any one or more of the following
obligations and securities: certificates of deposit, demand or time deposit,
federal funds or bankers' acceptances issued by any depository institution or
trust company incorporated under the laws of the United States or of any state
thereof and subject to and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial paper and/or
long-term unsecured debt obligations of such depository institution or trust
company (or in the case of the principal depository institution in a holding
company system, the commercial paper or long-term unsecured debt obligations
of such holding company) are then rated in the highest rating category for
such securities.
Permitted Transferee: As defined in Exhibit F hereto.
Person: Any individual, corporation, partnership, joint venture, bank,
joint-stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
Plan: As defined in Exhibit F hereto.
Principal Prepayment Distribution Amount: With respect to any
Distribution Date, the portion of Available Funds attributable to unscheduled
principal received on the Underlying Mortgage Loans.
Purchase Price: As defined in Section 2.03 hereof.
Rating Agencies: Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or its successors and assigns, and Duff & Xxxxxx Credit
Rating Company or its successors or assigns.
Record Date: With respect to the first Distribution Date, the Closing
Date. With respect to any other Distribution Date, the last Business Day of
the month preceding the month in which such Distribution Date occurs.
Registered Certificate: A Certificate as to which a registration
statement under the Securities Act has been filed and become effective.
Regular Certificates: The Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5 and Class T Certificates.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code. The Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5 and Class T Certificates will constitute "regular interests" in the
REMIC and the Class A-R Certificate will constitute the sole class of
"residual interests" in the REMIC.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time, as well as provisions of applicable state laws.
Residual Certificate: The Class A-R Certificate.
Responsible Officer: When used with respect to the Trustee, an officer of
the Trustee assigned to the Corporate Trust Office, including any Vice
President, any Assistant Vice President, any Assistant Secretary, any trust
officer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above-designated officers and also,
with respect to a particular matter, to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject and
who shall have direct responsibility for the administration of this Agreement.
Rule 3a-7: Rule 3a-7 of the Investment Company Act, as then in effect (or
any successor rule).
Scheduled Principal Distribution Amount: With respect to any Distribution
Date, the portion of Available Funds attributable to scheduled principal
received on the Underlying Mortgage Loans.
Securities Intermediary: The meaning specified in Section 8-102(a)(14) of
the UCC.
Shift Percentage: With respect to any Distribution Date, the percentage
indicated below:
Distribution Date occurring in Shift Percentage
November 1999 through October 2004 0%
November 2004 through October 2005 30%
November 2005 through October 2006 40%
November 2006 through October 2007 60%
November 2007 through October 2008 80%
November 2008 and thereafter 100%
Start-up Day: With respect to the REMIC, the day designated as such
pursuant to Section 2.05(b).
Tax Matters Person: The Person or Persons designated from time to time to
act as the "tax matters person" (within the meaning of the REMIC Provisions)
of the REMIC.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be
filed on behalf of the REMIC due to its classification as a REMIC under the
REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax laws.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
Transfer Affidavit: A certificate substantially in the form of Exhibit F
annexed hereto.
Transferor Affidavit: A certificate substantially in the form of Exhibit
E hereto.
Trustee: The Bank of New York, a New York banking corporation and its
successors and any corporation resulting from or surviving any consolidation
or merger to which it or its successors may be a party and any successor
trustee at the time serving as successor trustee hereunder.
Trust Fund: The corpus of the trust created by this Agreement and
evidenced by the related Certificates, consisting of: (i) the Underlying
Certificate, (ii) all distributions thereon on and after the Underlying
Remittance Date in October 1999, (iii) the Certificate Account and such assets
as are deposited therein from time to time, and (iv) any net proceeds from the
investment of amounts on deposit in the Certificate Account, together, in each
case, with any and all income, proceeds and payments with respect thereto.
UCC: The Uniform Commercial Code as in effect in the State of New York as
of the date hereof.
Underlying Agreement: Pooling and Servicing Agreement, dated as of May 1,
1998 among DLJ Mortgage Acceptance Corp., PNC Mortgage Securities Corp. and
The Bank of New York.
Underlying Certificate: DLJ Mortgage Acceptance Corp., Series 1998-2,
Class IPP-A-1.
Underlying Mortgage Loans: The mortgage loans in the Underlying Trust
Fund relating to the Underlying Certificate.
Underlying Remittance Date: The 19th day of each month, or, if such is
not a "Business Day" (as defined in the Underlying Agreement), the next
succeeding Business Day.
Underlying Trust Fund: The trust fund relating to the Underlying
Certificate.
Underlying Trustee: The trustee under the Underlying Agreement.
ARTICLE II
CONVEYANCE OF THE UNDERLYING CERTIFICATE;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of the Underlying Certificate. The Depositor,
concurrently with the execution and delivery hereof, does hereby transfer,
convey, sell and assign to the Trustee, on behalf of the Holders of the
Certificates, without recourse, all the right, title and interest of the
Depositor in and to the Underlying Certificate with appropriate endorsements
and other documentation sufficient under the Underlying Agreement to transfer
the Underlying Certificate to the Trustee, including all distributions thereon
payable after the Underlying Remittance Date in October 1999, and agrees to
transfer to the Trustee promptly upon receipt (by wire transfer of immediately
available funds), any amounts payable thereon after the Underlying Remittance
Date in October 1999 and all proceeds of the foregoing.
The transfer of the Underlying Certificate and all other assets
constituting the Trust Fund is absolute and is intended by the parties hereto
as a sale. Except to the extent required to have the Underlying Certificate
reregistered in its own name or a nominee name, the Trustee shall have the
beneficial ownership interest in the Underlying Certificate to be registered
with the Depository in the name of The Bank of New York, as the Securities
Intermediary for the account of the Trustee and shall not assign, sell,
dispose of or transfer any interest in the Underlying Certificate or any other
asset constituting the Trust Fund or permit the Underlying Certificate or any
other asset constituting the Trust Fund to be subjected to any lien, claim or
encumbrance arising by, through or under the Trustee or any person claiming
by, through or under the Trustee. The Depositor agrees to provide to the
Trustee all documents required for the transfer to the Trustee of the
beneficial ownership interest in the Underlying Certificate and the Trustee is
hereby authorized and directed to execute such documents.
It is intended that the conveyance of the Underlying Certificate by the
Depositor to the Trustee as provided in this Section 2.01 be, and be construed
as, a sale of the Underlying Certificate by the Depositor to the Trustee for
the benefit of the Certificateholders. It is, further, not intended that such
conveyance be deemed a pledge of the Underlying Certificate by the Depositor
to the Trustee to secure a debt or other obligation of the Depositor. However,
in the event that the Underlying Certificate is held to be the property of the
Depositor, or if for any reason this Agreement is held or deemed to create a
security interest in the Underlying Certificate, then it is intended that (a)
this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
corresponding articles of the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in this Section shall be deemed
to be a grant by the Depositor to the Trustee for the benefit of the
Certificateholders of a security interest in all of the Depositor's right,
title and interest, whether now owned or hereafter acquired, in and to (A) the
Underlying Certificate, (B) all amounts payable to the holder of the
Underlying Certificate after the Underlying Remittance Date in October 1999 in
accordance with the terms thereof and (C) all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts from time to time
held or invested in the Certificate Account, whether in the form of cash,
instruments, securities or other property; (c) the registration of the
beneficial ownership interest in the Underlying Certificate with the
Depository in the name of The Bank of New York as the Securities Intermediary
for the account of the Trustee and the possession by the Trustee or its agent
of such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or a person designated by such secured
party, for purposes of perfecting the security interest pursuant to the New
York Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction (including, without limitation, Sections 9-305, 8-313
or 8-321 thereof); and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Trustee for the purpose of perfecting such security
interest under applicable law. The Depositor and the Trustee, at the
Depositor's direction and expense, shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Underlying
Certificate and other assets constituting the Trust Fund described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the
term of the Agreement.
Section 2.02. Acceptance by Trustee. The Trustee hereby confirms that it
has confirmation from The Bank of New York, as Securities Intermediary for the
Trustee, that (i) the Book-Entry Underlying Certificate has been confirmed by
the Depository to have been delivered to the Trustee, and held by the
Securities Intermediary in book-entry form, as a participant in the
Depository, and (ii) the Securities Intermediary is holding such Book-Entry
Underlying Certificate for the account of the Trustee, as owner of the
Underlying Certificate as trustee for the Certificateholders. The Trustee
declares that it shall hold ownership interest in the Underlying Certificate
in trust, upon the terms herein set forth, for the use and benefit of all
present and future Certificateholders. The Trustee agrees, for the benefit of
Certificateholders, to confirm that the class designation and original
principal balance with respect to the Underlying Certificate conforms to the
information set forth on Schedule I within 10 days after execution and
delivery of this Agreement. If in the course of such confirmation the Trustee
finds that the information with respect to the Underlying Certificate does not
conform to the related information set forth on Schedule I, the Trustee shall
promptly so notify the Depositor. The Depositor shall promptly correct or cure
such defect within 45 days from the date it was notified of such omission or
defect and, if the Depositor does not correct or cure such omission or defect
within such period, the Depositor shall purchase the Underlying Certificate
from the Trustee on the Distribution Date in the month following the month in
which such 45-day period expired at the Purchase Price of the Underlying
Certificate. The Purchase Price for the purchased Underlying Certificate shall
be deposited in the Certificate Account on such date for distribution to the
related Certificateholders and, upon receipt by the Trustee of such deposit,
the Trustee shall cause the Securities Intermediary to hold any such
repurchased Underlying Certificate which is a Book-Entry Underlying
Certificate for the account of the Depositor and shall take such other action
as shall be necessary to vest in the Depositor or its designee ownership of
the Underlying Certificate released pursuant hereto. It is understood and
agreed that the obligation of the Depositor to purchase the Underlying
Certificate shall constitute the sole remedy against the Depositor with
respect to a defect or omission available to Certificateholders or the Trustee
on behalf of Certificateholders.
Section 2.03. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee as of the Closing Date
as follows:
(a) With respect to the Underlying Certificate:
(i) the Depositor is the sole owner of the Underlying Certificate
free and clear of any lien, pledge, charge or encumbrance of any kind;
(ii) the Depositor has not assigned any interest in the Underlying
Certificate or any distributions thereon, except as contemplated herein;
and
(iii) the documents furnished to the Trustee in connection with the
Underlying Certificate are sufficient to effect the transfer of the
Underlying Certificate to the Trustee pursuant to Section 2.01 hereof.
The representations and warranties set forth in this Section 2.03(a)
shall survive the transfer and assignment of the Underlying Certificate. Upon
discovery by the Depositor or a Responsible Officer of the Trustee of a breach
of any of the foregoing representations and warranties which materially and
adversely affects the interests of the Certificateholders in the Underlying
Certificate, the Depositor or the Trustee shall give prompt written notice to
the other and to the Certificateholders. On or prior to the third Distribution
Date following the Closing Date, the Depositor shall cure such breach in all
material respects or, if such breach cannot be cured, the Depositor shall
repurchase the Underlying Certificate from the Trustee if the Depositor is so
directed by Holders of a Majority in Interest of the Classes of Regular
Certificates. Any such repurchase of the Underlying Certificate by the
Depositor shall be accomplished prior to the related Distribution Date, in any
calendar month at a price (the "Purchase Price") equal to the principal
balance of the Underlying Certificate on the related Underlying Remittance
Date (prior to giving effect to any distributions on such Underlying
Remittance Date pursuant to the Underlying Agreement) plus interest thereon at
the Pass-Through Rate from the first day of the month of such repurchase up to
but not including the date of such repurchase. The payment of the Purchase
Price shall be considered a prepayment in full of the Underlying Certificate
and shall be delivered to the Trustee for deposit in the Certificate Account
in accordance with the provisions of Section 3.02 hereof. Upon such deposit
into the Certificate Account, the repurchased Underlying Certificate shall be
released to the Depositor, and the Trustee shall execute and deliver such
instrument of transfer or assignment, without recourse, as shall be reasonably
requested and provided by the Depositor to vest in the Depositor, or its
designee or assignee, title to the Underlying Certificate repurchased pursuant
hereto. The obligation of the Depositor to cure or repurchase the Underlying
Certificate shall constitute the sole remedy respecting such breach available
to Certificateholders or the Trustee on behalf of Certificateholders.
(b) With respect to the Depositor:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with full
power and authority to execute, deliver and perform this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Depositor and constitutes the legal, valid and binding agreement
of the Depositor, enforceable in accordance with its terms, except as
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally or by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(iii) Neither the execution nor the delivery of this Agreement nor
the issuance, delivery and sale of the Certificates, nor the consummation
of any other of the transactions contemplated herein nor the fulfillment
of the terms of this Agreement or the Certificates will result in the
breach of any term or provision of the charter or by-laws of the
Depositor or conflict with, result in a breach, violation or acceleration
of or constitute a default under, the terms of any material indenture or
other agreement or instrument to which the Depositor is a party or by
which it is bound, or any statute, order or regulation applicable to the
Depositor of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor.
(iv) There are no actions or proceedings against, or investigations
of, the Depositor pending, or, to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal (A)
asserting the invalidity of this Agreement or the Certificates, (B)
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement, or (C) which
might materially and adversely affect the validity or enforceability of
this Agreement or the Certificates.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(b) shall survive delivery of the Trust Fund to the
Trustee. Upon discovery by the Depositor or a Responsible Officer of the
Trustee of a breach of any of the foregoing representations and warranties
which breach materially and adversely affects the interests of the
Certificateholders, the party discovering such breach shall give prompt
written notice to the other party and to the Rating Agencies.
Section 2.04. Issuance of Certificates. The Trustee acknowledges the
receipt by it of the Underlying Certificate and concurrently with such
receipt, the Trustee has duly executed, countersigned and delivered, to or
upon the order of the Depositor, the Certificates in authorized denominations
and registered in such names as the Depositor has directed in writing.
Section 2.05. Miscellaneous REMIC Provisions. (a) The Class A-1, Class
A-2, Class A-3, Class A-4, Class A-5 and Class T Certificates are hereby
designated as "regular interests," and the Class A-R Certificate is hereby
designated as the single class of "residual interests," in the REMIC for
purposes of Sections 860G(a)(1) and 860G(a)(2) of the Code. The "latest
possible maturity date" of each class of REMIC regular interests will be the
Distribution Date in October 2032.
(b) The Closing Date will be the "Start-up Day" of the REMIC within the
meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class A-R Certificate, is hereby designated as the
"tax matters person" of the REMIC within the meaning of Section 6231(a)(7) of
the Code. The Holder of the Class A-R Certificate, by its acceptance of such
Certificate, shall be deemed to have agreed to the appointment of the Trustee
as its agent in performing the functions of "tax matters person."
Section 2.06. Presentation for Transfer. The Trustee shall present the
documents described in Section 2.01 for registration of transfer of the
Underlying Certificate, pursuant to the requirements under the Underlying
Agreement, to the Underlying Trustee, immediately following the Closing Date.
ARTICLE III
ADMINISTRATION OF THE TRUST FUND;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust Fund. (a) It is intended that
the Trust Fund formed hereunder shall constitute, and that the affairs of the
Trust Fund shall be conducted so as to qualify as, a REMIC as defined in and
in accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as the agent of the Trust Fund
(and the Trustee is hereby appointed to act as such agent), and that in such
capacity it shall: (i) prepare and file, or cause to be prepared and filed, in
a timely manner, and sign, any Tax Returns required by the REMIC Provisions
and other applicable income tax laws, using a calendar year as the taxable
year for the REMIC; (ii) make or cause to be made an election, on behalf of
the REMIC, to be treated as a REMIC on the Tax Return of the REMIC for its
first taxable year, in accordance with the REMIC Provisions; (iii) prepare,
file, deliver and sign any and all Tax Returns, information statements or
other forms required to be delivered to any governmental taxing authority
(including, without limitation, within 30 days after the Closing Date,
Internal Revenue Service Form 8811, "Information Return for Real Estate
Mortgage Investment Conduits (REMICs) and Issuers of Collateralized Debt
Obligations"), or to any Certificateholder, pursuant to any applicable
federal, state or local tax laws with respect to the Trust Fund or the related
Certificates and the transactions contemplated by this Agreement; (iv) provide
to each of the related Certificateholders such data necessary for their
original issue discount computations and market discount computations with
respect to such Certificates for federal income tax purposes and such
information as such Certificateholders may reasonably request from time to
time; (v) conduct the affairs of the Trust Fund so as to maintain the status
thereof as a REMIC under the REMIC Provisions; (vi) not knowingly or
intentionally take any action or omit to take any action that would cause the
termination of the REMIC status of the Trust Fund; (vii) provide information
necessary for the computation of tax imposed on the transfer of a Residual
Certificate to a Holder who is not a Permitted Transferee or an agent
(including a broker, nominee or other middleman) of a Person who is not a
Permitted Transferee or a pass-through entity in which a Person who is not a
Permitted Transferee is the record holder of an interest, provided that the
reasonable cost of computing and furnishing such information shall be charged
to the Person liable for such tax; (viii) maintain records relating to the
REMIC, including but not limited to the income, expenses, assets and
liabilities of the REMIC, and the fair market value and adjusted basis of the
assets included in the REMIC determined at such intervals as may be required
by the Code and as may be necessary to prepare the foregoing returns,
schedules, statements or information; and (ix) as and when necessary and
appropriate, represent the REMIC in any administrative or judicial proceedings
relating to an examination or audit by any governmental taxing authority,
request an administrative adjustment as to any taxable year of the REMIC,
enter into settlement agreements with any governmental taxing agency, extend
any statute of limitations relating to any tax item of the REMIC, and
otherwise act on behalf of the REMIC in relation to any tax matter or
controversy involving the REMIC; provided, however, that the Trustee shall
have no liability for any failure by it to perform its obligations under this
Section 3.01(a) if the information or data necessary to perform such
obligations has not been provided to the Trustee, unless such failure to
perform results solely from the negligence or bad faith of the Trustee.
(b) In the event that any federal, state or local tax (including a tax on
"prohibited transactions" as defined in Section 860F of the Code) is imposed
on the REMIC and is not otherwise paid pursuant to this provision of the
Agreement, such tax shall be charged first against amounts otherwise
distributable to the Holder of the Residual Certificate and then against
amounts otherwise distributable to the Holders of the Regular Certificates.
The Trustee is hereby authorized to retain from amounts otherwise
distributable to the related Certificateholders sufficient funds to pay or
provide for the payment of, and to actually pay, such tax as is legally owed
by the REMIC (but such authorization shall not prevent the Trustee from
contesting any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings); in
addition, upon the direction of the Holder of the Residual Certificate the
Trustee shall institute, conduct and terminate appropriate proceedings to
contest any such tax, provided that the Holder of the Residual Certificate
shall indemnify the Trustee for all expenses, costs and liabilities arising
from any such action.
(c) Notwithstanding the provisions of paragraph (b) above, the Holder of
the Residual Certificate shall pay on written demand, and shall indemnify and
hold harmless the Trustee and the related REMIC from and against, any and all
federal, state and local taxes, including taxes on "prohibited transactions"
as defined in Section 860F of the Code (including, for this purpose, any and
all interest, penalties, fines and additions to tax, as well as any and all
reasonable counsel fees and out-of-pocket expenses incurred in contesting the
imposition of such tax) imposed on the REMIC. Such indemnification shall
survive the termination of the Agreement and the REMIC created hereby.
(d) In connection with its receipt of any distribution on the Underlying
Certificate on any Underlying Remittance Date, the Trustee shall verify the
principal or interest, as applicable, by public information systems
established and customarily relied upon for such purpose and shall confirm
that the principal and/or interest payment received on such date is equal to
the distribution amount reflected on such information system. If (i) the
amount of any distribution varies from the amount reflected on such
information system for such distribution, (ii) the Trustee shall not have
received a distribution by the close of business on the date on which such
distribution was to be received by the Trustee, or (iii) a Responsible Officer
of the Trustee shall gain actual knowledge of any default under the Underlying
Agreement, the Trustee shall promptly notify the Depositor and the
Certificateholders, and shall proceed in accordance with the provisions of
Section 8.02.
(e) The Depositor, upon request, shall promptly furnish the Trustee with
all such information as may be reasonably required in connection with the
Trustee's preparation of all Tax Returns of the REMIC or to enable the Trustee
to respond to reasonable requests for information made by related
Certificateholders in connection with tax matters.
Section 3.02. Certificate Account. (a) The Trustee, for the benefit of
the Certificateholders, shall establish and maintain an account (the
"Certificate Account"), which shall be an Eligible Account, entitled
"Greenwich Capital Acceptance, Inc. Resecuritization Mortgage Trust, Series
1999-B". The Trustee shall upon receipt deposit in the Certificate Account the
following payments and collections in respect of the Underlying Certificate:
(i) all distributions received on the Underlying Certificate
subsequent to the Closing Date;
(ii) any amount required to be deposited in the Certificate Account
pursuant to Section 2.03(a) hereof in connection with the repurchase of
the Underlying Certificate by the Depositor; and
(iii) any amounts required to be deposited in the Certificate
Account pursuant to Section 7.01 hereof in connection with the purchase
by the Holder of the Residual Certificate of the Underlying Certificate.
The foregoing requirements for deposit in the Certificate Account shall
be exclusive. The Trustee shall give notice to the Depositor of the location
of the Certificate Account upon establishment thereof and prior to any change
thereof.
(b) Upon a determination by the Trustee that the final distribution shall
be made in respect of the Underlying Certificate, the Trustee shall take such
steps as may be necessary in connection with the final payment thereon in
accordance with the terms and conditions of the Underlying Agreement. The
Trustee shall promptly deposit in the Certificate Account the final
distribution received upon presentment and surrender of the Underlying
Certificate.
Section 3.03. Permitted Withdrawals from the Certificate Account. The
Trustee may from time to time withdraw funds from the Certificate Account for
the following purposes:
(i) to make payments to Certificateholders in the amounts and in the
manner provided in Section 3.04;
(ii) to reimburse the Depositor for expenses incurred by and
reimbursable to the Depositor with respect to the REMIC pursuant to
Section 6.03;
(iii) to pay any taxes imposed upon the REMIC, as provided in
Section 3.01(b); and
(iv) to clear and terminate the Certificate Account upon the
termination of the Trust Fund.
Section 3.04. Distributions. (a) On each Distribution Date, the Trustee
shall withdraw from the Certificate Account all Available Funds consisting of
an amount equal to (i) the amount received by the Trustee on and prior to such
Distribution Date as a distribution on the Underlying Certificate, reduced by
(ii) the sum of any expenses reimbursable to the Depositor and any taxes
imposed upon the REMIC. The Trustee will then distribute such Available Funds
(to the extent of the remaining Available Funds) in the following order of
priority:
(i) to the Holders of each Class of Certificates, pro rata, interest
accrued on the respective Certificate Principal Balances thereof during
the preceding Interest Accrual Period at the respective Pass-Through
Rates (less any Net Prepayment Interest Shortfalls allocated to such
Classes as provided below), together with any accrued and unpaid interest
from prior Distribution Dates; provided, however, that that prior to the
Accretion Termination Date, the amount of interest accrued on the
Certificate Principal Balances of the Class A-4 Certificates during the
preceding Interest Accrual Period will not be distributed as interest
thereon but instead shall be distributed in reduction of the Certificate
Principal Balances of the Class A-3 Certificates as specified in clause
(iii) below;
(ii) as principal, to the Holders of the Class A-5 Certificates, the
Class A-5 Priority Distribution Amount, until the Certificate Principal
Balances thereof have been reduced to zero;
(iii) as principal, to the Holders of the Class A-3 Certificates,
the Accrual Distribution Amount, until the Certificate Principal Balances
thereof have been reduced to zero;
(iv) as principal, to the Holder of the Class T Certificate, the
Class T Pro Rata Distribution Amount; and
(v) as principal, sequentially, to the Holders of the Class A-R,
Class A-1, Class A-2, Class A-3, Class A-4 and Class A-5 Certificates, in
that order, until their respective Certificate Principal Balances have
been reduced to zero.
On each Distribution Date, any Net Prepayment Interest Shortfall will be
allocated, pro rata, to the Certificates on the basis of their Certificate
Principal Balances.
In the event that on any Underlying Remittance Date, the Trustee shall
not have received the cash distribution, if any, required to be made under the
Underlying Agreement in respect of the Underlying Certificate, the Trustee
shall effect the related distributions required hereunder on the Business Day
immediately following the date on which the cash distribution so required
shall have been received by the Trustee.
(b) All distributions made with respect to each Class of Certificates on
each Distribution Date shall be allocated pro rata among the Certificates of
such Class that are Outstanding based upon their respective Percentage
Interests. Payments to the Certificateholders of such Class with respect to
each Distribution Date will be made to the Certificateholders of record as of
the related Record Date (other than as provided in Section 7.01 respecting the
final distribution). Distributions to any Certificateholder on any
Distribution Date shall be made by wire transfer of immediately available
funds to the account of such Certificateholder at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
so notified the Trustee in writing at least five Business Days prior to the
related Record Date and such Certificateholder shall hold any Certificates
with aggregate principal denominations of at least $5,000,000 or evidencing a
Percentage Interest of 10% or greater, or in such other manner as shall be
agreed to by the Trustee and such Certificateholder, or otherwise by check
mailed by first class mail to the address of such Certificateholder appearing
in the Certificate Register. The final distribution on each Certificate will
be made in like manner, but only upon presentment and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution.
(c) The rights of the Certificateholders to receive distributions from
the proceeds of the related Trust Fund in respect of the Certificates, and all
interests of the Certificateholders in such distributions, shall be as set
forth in this Agreement. Neither the Holders of any Class of Certificates nor
the Depositor nor the Trustee shall in any way be responsible or liable to
Holders of any other Class of Certificates in respect of previous amounts
properly distributed on the Certificates.
(d) In the case of any losses allocated to the Underlying Certificate,
such losses in turn will be allocated pro rata to the Class A Certificates and
the Class T Certificate on the basis of their then outstanding principal
balances.
Section 3.05. Statements to Certificateholders. Concurrently with each
distribution on a Distribution Date, the Trustee will forward by mail to the
Holder of each Certificate a statement generally setting forth the following
information:
(i) the Available Funds, the Accrual Distribution Amount and the
Class A-5 Priority Distribution Amount for such Distribution Date;
(ii) with respect to such Distribution Date, the aggregate amount of
principal and interest, stated separately, distributed to Holders of each
Class of Certificates;
(iii) with respect to such Distribution Date, the amount of any
interest shortfall for each Class of Certificates, together with the
amount of any unpaid interest shortfall for such Class immediately
following such Distribution Date;
(iv) with respect to each Class of Certificates, the losses
allocated to such Class with respect to such Distribution Date;
(v) the aggregate Certificate Principal Balance of each Class of
Certificates, after giving effect to (a) distributions of principal of
such Certificates on such Distribution Date, (b) any losses allocated to
such Certificates and (c) in the case of the Class A-4 Certificates, any
addition to the Certificate Principal Balances thereof; and
(vi) any additional amount distributed to the Holder of the Residual
Certificate on such Distribution Date.
In addition, upon written request, the Trustee will furnish to
Certificateholders copies of the statements received by the Trustee for each
Underlying Remittance Date as the holder of the Underlying Certificate on
behalf of the Trust Fund.
Within a reasonable period of time after the end of each calendar year,
the Trustee will prepare and deliver to each person who at any time during the
previous calendar year was a Certificateholder of record a statement
containing the information required to satisfy any requirements of the Code,
the REMIC Provisions and regulations thereunder as from time to time are in
force. For purposes of this Section 3.05, the Trustee's duties are limited to
the extent that adequate information is reasonably available to the Trustee as
described herein.
Section 3.06. Reports of the Trustee; Certificate Account. Upon written
request of a Certificateholder and at the expense of such Certificateholder,
the Trustee shall make available to Certificateholders within 15 days after
the date of receipt of such request a statement setting forth the status of
the Certificate Account as of the close of business on the last day of the
calendar month immediately preceding such request, and showing, for the period
covered by such statement, the aggregate of deposits into and withdrawals from
the Certificate Account.
Section 3.07. Access to Certain Documentation and Information. The
Trustee shall provide the related Certificateholders with access to a copy of
each report, if any, received by it as holder of the Underlying Certificate
under the Underlying Agreement. The Trustee shall also provide the Depositor
with access to any such report and to all written reports, documents and
records required to be maintained by the Trustee in respect of its duties
hereunder. Such access shall be afforded without charge but only upon
reasonable request evidenced by prior written notice received by the Trustee
two Business Days prior to the date of such proposed access and during normal
business hours at offices designated by the Trustee.
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates. (a) The Certificates shall be
substantially in the forms set forth in Exhibits A, B, C and D hereto, as
applicable. Upon original issue, the Certificates shall be executed and
delivered by the Trustee and the Trustee shall countersign the Certificates to
or upon the order of the Depositor. The Certificates shall be executed by
manual or facsimile signature on behalf of the Trustee by an authorized
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the countersignature and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement or be valid
for any purpose, unless there appears on such Certificate a countersignature
substantially in the form provided herein executed by the Trustee by manual
signature, and such countersignature shall be conclusive evidence, and the
only evidence, that such Certificate has been duly countersigned and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
Section 4.02. Book-Entry Certificates. The Book-Entry Certificates shall
initially be issued as one or more Certificates registered in the name of the
Depository or its nominee and, except as provided below, registration of such
Certificates may not be transferred by the Trustee except to another
Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificateholders
shall hold their respective Ownership Interests in and to each of such
Certificates through the book-entry facilities of the Depository and, except
as provided below, shall not be entitled to Definitive Certificates in respect
of such Ownership Interests. All transfers by Certificate Owners of their
respective Ownership Interests in the Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository
Participant shall transfer the Ownership Interests only in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal procedures.
The Trustee may for all purposes (including the making of payments due on
the respective Classes of Book-Entry Certificates) deal with the Depository as
the authorized representative of the Certificate Owners with respect to the
respective Classes of Book-Entry Certificates for the purposes of exercising
the rights of Certificateholders hereunder. The rights of Certificate Owners
with respect to the respective Classes of Book-Entry Certificates shall be
limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of any Class of Book-Entry Certificates with respect to
any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i)(A) the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor or (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Depository, or (iii) after an Event of Default under the Trust Agreement, the
Certificate Owners representing not less than 51% of the Certificate Balance
of the Book-Entry Certificates advise the Trustee and the Depository that the
book-entry system is no longer in the best interests of such Certificate
Owners, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration
of transfer, the Trustee shall issue the Definitive Certificates. Neither the
Depositor nor the Trustee shall be liable for any actions taken by the
Depository or its nominee, including, without limitation, any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
Section 4.03. Registration of Transfer and Exchange of Certificates. (a)
The Trustee shall cause to be kept at the office of its designated agent in
the City of New York, a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided.
(b) No transfer of a Registered Certificate or any interest therein shall
be made and the Trustee shall not register any proposed transfer of a
Registered Certificate unless it receives (i) a representation substantially
to the effect that the proposed transferee is not a Plan, is not acquiring the
Registered Certificate on behalf of or with the assets of a Plan (including
assets that may be held in an insurance company's separate or general accounts
where assets in such accounts may be deemed "plan assets" for purposes of
ERISA), or (ii) an opinion of counsel in form and substance satisfactory to
the Trustee and the Depositor that the purchase or holding of the Registered
Certificate by or on behalf of a Plan will not constitute a prohibited
transaction and will not result in the assets of the Trust being deemed to be
"plan assets" and subject to the fiduciary responsibility provisions of ERISA
or the prohibited transaction provisions of ERISA and the Code or any federal,
state or local law that impose similar requirements or subject the Trustee or
the Depositor to any obligation in addition to those undertaken in this
Agreement. Such representation as described above shall be deemed to have been
made to the Trustee by the transferee's acceptance of a Registered
Certificate.
(c) The Class T Certificate may not be transferred to any Person other
than a successor Trustee hereunder. By accepting the Class T Certificate, each
Holder thereof shall be deemed to have agreed to this restriction on transfer.
In addition, the Class T Certificate shall bear a legend setting forth the
foregoing restriction on transfer.
(d) The Certificates and related documentation (including the forms of
Transferee's Certificate) may be amended or supplemented from time to time by
the Depositor, without the consent but upon notice to the Trustee and the
Holders of the Certificates, to modify the restrictions on and procedures for
resale and other Transfers of the Certificates to reflect any change in
applicable law or regulation (or the interpretation thereof) or in practices
relating to the resale or other Transfer of restricted securities generally,
or to reflect the circumstances of a Certificate having become a Registered
Certificate, if the Depositor and the Trustee shall have received an Opinion
of Counsel to the effect that such amendment or supplement is necessary or
appropriate.
(e) (i) Each Person who has or who acquires any Ownership Interest in a
Residual 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 authorized the Trustee or its designee under clause
(iii)(A) below to deliver payments to a Person other than such Person and to
negotiate the terms of any mandatory sale under clause (iii)(B) below and to
execute all instruments of Transfer and to do all other things necessary in
connection with any such sale. The rights of each Person acquiring any
Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change
in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require
delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of a Transfer Affidavit
from the proposed Transferee, representing and warranting,
among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in
the Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is
not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor
to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 4.02(e) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (B) above, if a Responsible
Officer of the Trustee who is assigned to this transaction has
actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (x) to require a Transfer
Affidavit from any other Person to whom such Person attempts to
transfer its Ownership Interest in a Residual Certificate and
(y) not to transfer its Ownership Interest unless it provides a
Transferor Affidavit to the Trustee stating that it has no
actual knowledge that such other Person is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in
such Certificate, agrees to give the Trustee written notice
that it is a "pass-through interest holder" within the meaning
of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Residual
Certificate, if it is, or is holding an Ownership Interest in a
Residual Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee will register the Transfer of any Residual
Certificate only if it shall have received the Transfer Affidavit
and all of such other documents as shall have been reasonably
required by the Trustee as a condition to such registration. In
addition, no Transfer of a Residual Certificate shall be made unless
the Trustee shall have received a representation letter from the
Transferee of such Certificate to the effect that such Transferee is
a Permitted Transferee.
(iii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
4.02(e), then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights as Holder
thereof retroactive to the date of registration of such Transfer of
such Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 4.02(e) or
for making any payments due on such Certificate to the Holder
thereof or for taking any other action with respect to such Holder
under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in
this Section 4.02(e) and to the extent that the
retroactive restoration of the rights of the holder of
such Residual Certificate as described in clause (iii)(A)
above shall be invalid, illegal or unenforceable, then
the Trustee shall have the right, without notice to the
Holder or any prior Holder of such Residual Certificate,
to sell such Residual Certificate to a purchaser selected
by the Trustee on such terms as the Trustee may choose.
Such purported Transferee shall promptly endorse and
deliver each Residual Certificate in accordance with the
instructions of the Trustee. Such purchaser may be the
Trustee itself or any affiliate of the Trustee. The
proceeds of such sale, net of the commissions (which may
include commissions payable to the Trustee or its
affiliates), expenses and taxes due, if any, will be
remitted by the Trustee to such purported Transferee. The
terms and conditions of any sale under this clause
(iii)(B) shall be determined in the sole discretion of
the Trustee, and the Trustee shall not be liable to any
Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such
discretion.
(iv) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information necessary to compute any tax imposed (A) as a result of
the Transfer of an Ownership Interest in a Residual Certificate to
any Person who is a Disqualified Organization, including the
information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time
any Person which is a Disqualified Organization. Reasonable
compensation for providing such information may be accepted by the
Trustee.
(v) The provisions of this Section 4.02(e) set forth prior to this
subsection (v) may be modified, added to or eliminated, provided
that there shall have been delivered to the Trustee at the expense
of the party seeking to modify, add to or eliminate any such
provision the following:
(A) written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such provisions
will not cause such Rating Agency to downgrade its then-current
ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, to the effect that such modification of, addition to
or elimination of such provisions will not cause the REMIC created
hereunder to cease to qualify as a REMIC and will not cause the
REMIC created hereunder to be subject to an entity-level tax caused
by the Transfer of any Residual Certificate to a Person that is not
a Permitted Transferee or (y) a Person other than the prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a
Residual Certificate to a Person that is not a Permitted Transferee.
(f) The restrictions on Transfers of Residual Certificates set forth in
Section 4.02(e) hereof shall cease to apply to Transfers occurring after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Depositor or the Trustee, to the effect that
the elimination of such restrictions will not cause the Trust Fund to fail to
qualify as a REMIC at any time that the related Certificates are outstanding.
(g) Subject to the foregoing, upon surrender for registration of Transfer
of any Certificate at the Corporate Trust Office, the Trustee shall execute,
countersign and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations and of
the same Class and aggregate Percentage Interest.
(h) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations and of the same
Class and aggregate Percentage Interest upon surrender of the Certificates to
be exchanged at the office maintained pursuant to Section 4.05. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
countersign and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Each Certificate presented or surrendered for
registration of Transfer or exchange shall (if so required by the Trustee) be
duly endorsed by, or be accompanied by a written instrument of transfer in the
form satisfactory to the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing.
(i) No service charge shall be made for any registration of Transfer or
exchange of Certificates of any Class, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any Transfer or exchange of Certificates.
(j) All Certificates surrendered for registration of Transfer and
exchange shall be cancelled and disposed of by the Trustee in accordance with
its standard procedures without liability on its part.
(k) Upon written request, the Trustee will provide to the Depositor a
list of names and addresses of all Certificateholders as they appear in the
Certificate Register.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Agreement or under applicable law with respect to any transfer of any interest
in any Certificate (including any transfers between or among Certificate
Owners or beneficial owners of interests in any book-entry or global
certificates) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of this Agreement, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
Section 4.04. Mutilated, Destroyed, Lost or Stolen Certificates. If (i)
any mutilated Certificate is surrendered to the Trustee or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and of the ownership thereof, and (ii) there is delivered to the
Trustee and the Depositor such security or indemnity as may be required by
them to save them harmless, then, in the absence of notice to the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 4.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 4.03 shall constitute complete and
indefeasible evidence of ownership of a like denomination as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be
found at any time. All Certificates surrendered to the Trustee under the terms
of this Section 4.03 shall be cancelled and disposed of by the Trustee in
accordance with its standard procedures without liability on its part.
Section 4.05. Persons Deemed Owners. The Trustee and the Depositor and
any agent of either of them may treat the Person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 3.04 hereof and for all other purposes
whatsoever, and neither the Trustee, the Depositor nor any such agent shall be
affected by notice to the contrary.
Section 4.06. Maintenance of Office or Agency. The Trustee will maintain
at its expense in the Borough of Manhattan, City of New York, State of New
York, an office or agency where Certificates may be surrendered for
registration of transfer or exchange and presented for final distribution and
where notices and demands to or upon the related Trust Fund in respect of the
Certificates and this Agreement may be served. Such office or agency shall
initially be maintained at 000 Xxxxxxx Xxxxxx - 00X, Xxx Xxxx, Xxx Xxxx 00000.
The Trustee will give prompt written notice to the Certificateholders and the
Depositor of any change in the location of any such office or agency.
ARTICLE V
THE TRUSTEE
Section 5.01. Duties of Trustee. The Trustee shall undertake to perform
such duties and only such duties as are specifically set forth in this
Agreement. Any permissive right of the Trustee set forth in this Agreement
shall not be construed as a duty.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they
conform to the requirements of this Agreement (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own misconduct, or its negligent failure to act in respect of the Trust
Fund or the Underlying Certificate, or any liability which would be imposed by
reason of its willful misfeasance or bad faith; provided, however, that:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations as
are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee which conform to the requirements of
this Agreement and which are reasonably believed to be genuine and duly
executed by the proper authorities respecting matters hereunder;
(ii) The Trustee shall not be individually or as Trustee liable for
an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent or acted in bad faith or with willful misfeasance
in performing its duties in accordance with the terms of this Agreement;
and
(iii) The Trustee shall not be liable, individually or as Trustee,
with respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of the Holders of
Certificates of any Class of Certificates evidencing Percentage Interests
in such Class aggregating not less than 25% relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement.
Section 5.02. Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in Section ------------------------------------- 5.01
hereof:
(i) The Trustee may request and conclusively rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) The Trustee shall not be liable, individually or as Trustee,
for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
the Holders of Certificates of any Class evidencing Percentage Interests
in such Class aggregating not less than 25%;
(v) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(vi) The Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the
investment security);
(vii) The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers
hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is
not assured to it;
(viii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
(ix) Whenever in the administration of this Agreement the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate;
and
(x) The Trustee shall not be deemed to have notice of any breach by
the Depositor of any representation, warranty or covenant or any default
or event of default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is
in fact such a default or breach is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Certificates and this Agreement.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of the Certificates, subject to the provisions of this Agreement.
Section 5.03. Trustee Not Liable for Certificates. The recitals contained
herein and in the Certificates, other than the signature of the Trustee on the
Certificates, shall be taken as the statements of the Depositor and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations or warranties as to the validity or sufficiency of this
Agreement or of the Certificates or of the Underlying Certificate or related
documents, other than the signature of the Trustee on the Certificates. The
Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor in respect of the
Underlying Certificate.
Section 5.04. Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates with the
same rights it would have if it were not Trustee.
Section 5.05. Indemnification of the Trustee. The Depositor hereby
covenants and agrees to indemnify the Trustee and any director, officer,
employee, or agent of the Trustee for and to hold them harmless against, any
and all losses, liabilities, damages, claims or expenses arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder (including, without limitation, any losses, liabilities, damages,
claims or expenses arising from the failure of the Depositor to perform its
obligations in accordance with the provisions of this Agreement or of
defending itself against any claim or liability in connection with the
exercise or performance of any powers or duties hereunder), other than those
resulting from the negligence or bad faith in the performance of any of the
Trustee's duties hereunder or by reason of reckless disregard of the Trustee's
obligations and duties hereunder. Such indemnification shall survive the
termination of this Agreement and the Trust Fund created hereby or the
resignation or removal of the Trustee pursuant to the terms hereof.
Section 5.06. Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times (i) be a corporation or a national banking
association organized and doing business under the laws of any state or the
United States of America or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal
or state authority and (ii) satisfy the requirements of paragraph (a) (4) of
Rule 3a-7. If such corporation or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in
Section 5.07 hereof. The corporation or national banking association serving
as Trustee may have normal banking and trust relationships with the Depositor
and its affiliates; provided, however, that such corporation or association
cannot be an affiliate of the Depositor.
Section 5.07. Resignation and Removal of the Trustee. Subject to the
requirements set forth in this Article V, the Trustee may at any time resign
and be discharged from the trusts hereby created by giving notice thereof to
the Depositor and all of the Certificateholders. Upon receiving such notice of
resignation, the Depositor (with the consent of Holders of a Majority in
Interest of each Class of Regular Certificates shall promptly appoint a
successor trustee by written instrument, in duplicate, which instrument shall
be delivered to the resigning Trustee and to the successor trustee. A copy of
such instrument shall be delivered to the Certificateholders by the Depositor.
If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation or
notice of removal (as provided below), the resigning or removed Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.06 hereof and shall fail to resign after written
request therefor by the Depositor or any Certificateholder, or if at any time
the Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, reorganization,
conservation or liquidation, or if the rating of the Certificates is
downgraded by a Rating Agency due to the Trustee, then the Depositor, unless
instructed otherwise by Holders of a Majority in Interest of each Class of
Regular Certificates, shall remove the Trustee and appoint a successor trustee
by written instrument, in duplicate, which instrument shall be delivered to
the Trustee so removed and to the successor trustee. A copy of such instrument
shall be delivered to the Certificateholders by the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 5.08 hereof.
Section 5.08. Successor Trustee. Any successor trustee appointed as
provided in Section 5.07 hereof shall execute, acknowledge and deliver to each
of the Depositor, the Certificateholders and its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee
herein. The predecessor trustee shall deliver to the successor trustee the
Underlying Certificate, the Class T Certificate, and all related documents and
statements held by it hereunder, and the Depositor and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all the rights, powers, duties and obligations of the
Trustee under this Agreement.
No successor trustee shall accept appointment as provided in this Section
5.08 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 5.06 hereof.
Upon acceptance of appointment by a successor trustee as provided in this
Section 5.08, the successor trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register.
Section 5.09. Merger or Consolidation of Trustee. Any corporation (or
other Person) into which the Trustee may be merged or converted or with which
it may be consolidated or any corporation (or other Person) resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation (or other Person) succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation (or other Person) shall be
eligible under the provisions of Section 5.06 hereof, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 5.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of any
Trust Fund or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of any Trust Fund,
and to vest in such Person or Persons, in such capacity, such title to the
related Trust Fund, or any part thereof, and, subject to the other provisions
of this Section 5.10, such powers, duties, obligations, rights and trusts as
the Depositor and the Trustee may consider necessary or desirable. If the
Depositor shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
5.06 hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 5.08
hereof.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the 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 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 (as Trustee hereunder), the
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 related Trust Fund 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
Trustee;
(ii) No trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) The Depositor and the 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 Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article V. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
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 Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 5.11. Trustee's Fees and Expenses. The Trustee acknowledges that
it will hold the Class T Certificate as compensation for all services rendered
by it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder. In the event of the
resignation or removal of the Trustee pursuant to the terms of this agreement,
such Trustee will deliver the Class T Certificate to the successor Trustee as
compensation to the successor trustee.
Section 5.12. Limitation of Liability. The Certificates are executed and
countersigned by the Trustee, not in its individual capacity but solely as
Trustee of the trust created by this Agreement, in the exercise of the powers
and authority conferred and vested in it by this Agreement. Each of the
undertakings and agreements made on the part of the Trustee on behalf of the
Trust Fund in the Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the
purpose of binding only the Trust Fund.
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liability of the Depositor. The Depositor shall be liable
in accordance herewith only to the extent of the obligations specifically
imposed upon and undertaken by the Depositor herein.
Section 6.02. Merger, Consolidation or Conversion of the Depositor.
Subject to the following paragraph, the Depositor will keep in full effect its
existence, rights and franchises as a corporation under the laws of one of the
states of the United States, and will obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and the Certificates and to perform its
duties under this Agreement.
The Depositor may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case
any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any Person succeeding to the business of the Depositor,
shall be the successor of the Depositor hereunder without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 6.03. Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of the directors, officers, employees or agents
of the Depositor shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor or any such Person against any breach of warranties or
representations made by it herein, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of its
obligations and duties hereunder. The Depositor and any director, officer,
employee or agent of the Depositor may rely in good faith on any document of
any kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor and any director,
officer, employee or agent of the Depositor shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred in
connection with any legal action relating to the performance of its
obligations in accordance with the provisions of this Agreement or the
Certificates, other than any loss, liability or expense incurred by reason of
any breach of warranties or representations made herein, or willful
misfeasance, bad faith or negligence. The Depositor may in its discretion
undertake any such action which Holders of a Majority in Interest of each
Class of Regular Certificates may deem necessary or desirable with respect to
this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall
be expenses, costs and liabilities of the related Trust Fund, and the
Depositor shall be entitled to be reimbursed therefor from the Certificate
Account as provided in Section 3.03 hereof upon delivery to the Trustee of an
Officers' Certificate stating the amount of such expenses, costs and
liabilities and that such expenses, costs and liabilities are reimbursable in
accordance with this Agreement.
ARTICLE VII
TERMINATION
Section 7.01. Termination. (a) Subject to Section 7.02 hereof, the
respective obligations and responsibilities of the Depositor and the Trustee
created hereby with respect to the Certificates (other than the obligation to
make certain payments and to send certain notices to Certificateholders as
hereinafter set forth) shall terminate immediately upon the occurrence of the
last action required to be taken by the Trustee on the Distribution Date
pursuant to this Article VII following the earlier of (x) the receipt of the
final distribution to be made on the Underlying Certificate to remain
outstanding upon presentment and surrender of the Underlying Certificate in
accordance with the terms and conditions of the Underlying Agreement, or (y)
the purchase by the Depositor on any Distribution Date of the Underlying
Certificate and other assets remaining in the Trust Fund at a price equal to
the greater of (A) the fair market value of the Certificates and (B) the
principal balance of the Underlying Certificate plus, in each case, accrued
and unpaid interest on the Underlying Certificate; provided, however, that in
no event shall the trust created hereby continue beyond the earlier of (i) the
expiration of twenty-one years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof, and (ii) the Distribution
Date in October 2032. The right of the Holder of the Residual Certificate to
purchase the Underlying Certificate pursuant to clause (y) above shall be
conditioned upon the principal balance of the Underlying Certificate at the
time of any such repurchase equaling an amount less than 5% of the principal
balance of the Underlying Certificate as of the Cut-off Date.
(b) Notice of the final distribution in respect of either the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5 or Class T Certificates, specifying
the Distribution Date upon which all Holders of Certificates of such Class may
surrender their Certificates to the Trustee for payment and cancellation,
shall be given by the Trustee to Certificateholders as promptly as practicable
following the notice of the final distribution on the Underlying Certificate.
Such notice shall specify (i) the Distribution Date upon which final payment
on the related Certificates will be made upon presentment and surrender of
such Certificates at the office or agency appointed by the Trustee for that
purpose, (ii) the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable and that
payments shall be made only upon presentation and surrender of such
Certificates at the office or agency of the Trustee therein specified. Upon
presentment and surrender of the related Certificates, the Trustee shall cause
to be distributed to the related Certificateholders an amount equal to the
amount otherwise distributable on such Distribution Date.
(c) Any funds not distributed on the final Distribution Date for the
related Class of Regular Certificates because of the failure of any such
Certificateholders to tender their Certificates shall be set aside and held
uninvested in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the final Distribution Date has been given
pursuant to this Section 7.01 shall not have been surrendered for cancellation
within six months after the time specified in such notice, the Trustee shall
mail a second notice to the remaining Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, the final
distribution with respect thereto. If within one year after the second notice
any Certificate shall not have been surrendered for cancellation, the Trustee
shall, directly or through an agent, take reasonable steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If
within two years any Certificates shall not have been surrendered for
cancellation, the Trustee shall pay to the Depositor all amounts distributable
to the Holders thereof and the Depositor shall thereafter hold such amounts
for the benefit of such Holders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in
accordance with this Section 7.01.
Section 7.02. Additional Termination Requirements. (a) The REMIC shall be
terminated in accordance with the following additional requirements, unless
the Trustee has been supplied with an Opinion of Counsel, which Opinion of
Counsel shall not be an expense of the Trustee, to the effect that the failure
of the REMIC to comply with the requirements of this Section 7.02 will not (i)
result in the imposition of taxes on "prohibited transactions" of the REMIC as
defined in section 860F of the Code, or (ii) cause the REMIC to fail to
qualify as a REMIC at any time that any Certificates relating thereto are
outstanding:
(i) Within 90 days prior to the final Distribution Date for the
REMIC set forth in the notice to Certificateholders given under Section
7.01, the Holder of the Residual Certificate shall adopt a plan of
complete liquidation of the REMIC within the meaning of section
860F(a)(4) of the Code and shall prepare and shall deliver to the Trustee
all documentation associated with such plan of complete liquidation; and
(ii) Within 90 days after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date, the
Trustee shall, upon receipt of all documentation associated with such
plan of complete liquidation, sell or otherwise dispose of all of the
assets of the REMIC, in a time and manner specified by such plan of
complete liquidation.
(b) By its acceptance of the Residual Certificate, the Holder thereof
hereby agrees to adopt such a plan of complete liquidation with respect to the
REMIC upon the written request of, and to take such other action in connection
therewith as may be reasonably requested by, the Trustee or the Depositor.
(c) The Trustee as agent for the REMIC hereby agrees to adopt and sign
such a plan of complete liquidation upon the written request of the Depositor
and the receipt of the Opinion of Counsel referred to in Section 7.02(a)
hereof, if applicable, and to take such other action in connection therewith
as may be reasonably requested by the Depositor.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment. This Agreement may be amended by the Depositor
and the Trustee, without the consent of any of the Certificateholders, (i) to
cure any error or ambiguity, (ii) to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
(iii) to permit any other provisions with respect to matters or questions
arising under this Agreement which are not inconsistent with the provisions of
this Agreement, (iv) to comply with the Securities Act of 1933, as amended or
the Investment Company Act of 1940, as amended, (v) to amend any of the
exhibits to this Agreement pursuant to the terms of this Agreement or (vi) if
such amendment is reasonably necessary, as evidenced by an Opinion of Counsel,
to comply with any requirements imposed by the Code or any successor or
amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any proposed such action which, if made
effective, would apply retroactively to the Trust Fund at least from the
effective date of such amendment; provided that such action (except any
amendment described in (vi) above) shall not adversely affect in any material
respect the interests of any Certificateholder as evidenced by (x) an Opinion
of Counsel to such effect, which Opinion of Counsel shall not be an expense of
the Trustee, delivered to the Trustee or (y) letters from the Rating Agencies
to the effect that the amendment would not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates.
This Agreement may also be amended by the Depositor and the Trustee with
the consent of the holders of a Majority in Interest of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the holders of Certificates;
provided, however, that no such amendment may (a) reduce in any manner the
amount of, or delay the timing of, distributions required to be made on any
Certificate without the consent of the holder of such Certificate, (b)
adversely affect in any material respect the interest of the holders of the
Certificates of any Class in a manner other than as described in clause (a)
above without the consent of the holders of Certificates of such Class
representing not less than 66% of the Percentage Interests represented by such
Class or (c) reduce the aforesaid percentages of Certificates the holders of
which are required to consent to any such amendment without the consent of the
holders of all Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received at the expense of the Person requesting such amendment (or, in
the event such amendment is requested by the Trustee, at the expense of the
Depositor), an Opinion of Counsel to the effect that such amendment will not
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are Outstanding.
Promptly after the execution of any such amendment the Trustee shall
furnish a copy of the amendment or a statement describing it to each
Certificateholder.
The manner of obtaining such consents and of evidencing the authorization
of the execution thereof by Certificateholders shall be subject to such
reasonable regulations as the Trustee may prescribe.
Prior to executing any amendment, the Trustee shall be entitled to
receive and rely upon an Opinion of Counsel, stating that the execution of
such amendment is authorized or permitted by this Agreement.
Section 8.02. Action Under and Conflicts With the Underlying Agreement.
Subject to the terms hereof, in the event that there shall be any matters
arising under any of the Underlying Agreement which require the vote or
direction of the holders of the Underlying Certificate, the Trustee, as holder
of the Underlying Certificate, shall vote the Underlying Certificate in
accordance with instructions received from Holders of a Majority in Interest
of the Classes of Regular Certificates. In the absence of any the
instructions, the Trustee shall not vote the Underlying Certificate; provided,
however, that notwithstanding the absence of such instructions, in the event a
required distribution pursuant to the Underlying Agreement shall not have been
made, the Trustee shall, subject to the provisions of Article V hereof, pursue
such remedies as may be available to it as holder of the Underlying
Certificate in accordance with the terms of the Underlying Agreement.
Section 8.03. Recordation of Agreement. This Agreement (or an abstract
hereof, if acceptable by the applicable recording office) is subject to
recordation in all appropriate public offices, such recordation to be effected
by the Depositor at its expense if such recordation beneficially affects the
interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 8.04. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement, or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement, unless such Holder previously
shall have given to the Trustee a notice of a default by the Depositor or the
Trustee in the performance of any obligation hereunder, and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing Percentage Interests in each Class of Regular Certificates
aggregating at least 25% shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding. It is understood and intended, and
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 8.05. Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
Section 8.06. Notices. All demands, notices and direction to either party
hereunder shall be in writing and shall be deemed effective when delivered to:
(i) in the case of the Depositor, Greenwich Capital Acceptance, Inc., 000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Structured Finance,
and a copy to Greenwich Capital Acceptance, Inc., 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: General Counsel, (ii) in the case of
the Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust - MBS Administration, or such other address
as may hereafter be furnished by any party to the others. Any notice required
or permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register; any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or
not the Certificateholder receives such notice.
Section 8.07. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 8.08. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors
and assigns of the parties hereto, and all such provisions shall inure to the
benefit of the Certificateholders.
Section 8.09. Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 8.10. Certificates Nonassessable and Fully Paid. It is the
intention of this Agreement that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the beneficial ownership
interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust Fund or for any reason whatsoever, and that
Certificates upon execution, countersignature and delivery thereof by the
Trustee pursuant to Section 2.04 hereof are and shall be deemed fully paid.
* * *
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized,
all as of the day and year first above written.
GREENWICH CAPITAL ACCEPTANCE, INC.,
as Depositor
By:
________________________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:
________________________________
Name:
Title:
SCHEDULE I
SCHEDULE OF UNDERLYING CERTIFICATE AND UNDERLYING AGREEMENT
PRINCIPAL BALANCE AS
UNDERLYING CERTIFICATE OF OCTOBER 19, 1999 UNDERLYING AGREEMENT
---------------------- -------------------- --------------------
$ Pooling and Servicing Agreement,
DLJ Mortgage Acceptance dated as of May 1, 1998 among
Corp., Series 1998-2, DLJ Mortgage Acceptance Corp.,
Class IPP-A-1 PNC Mortgage Securities Corp.
and The Bank of New York
EXHIBIT A
[FORM OF CLASS [A-1] [A-2] [A-3] [A-4] [A-5] CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"). BY ACCEPTING THIS CERTIFICATE, A TRANSFEREE
SHALL BE DEEMED TO HAVE REPRESENTED TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, NOR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, NOR
IS SUCH TRANSFEREE ACQUIRING THIS CERTIFICATE ON BEHALF OF OR WITH THE ASSETS
OF A PLAN.
Certificate No.: ____
First Distribution Date: _________________
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $____________
Closing Date Principal
Balances evidenced
by all Class [A-1] [A-2]
[A-3] [A-4] [A-5] Certificates: $_________________
GREENWICH CAPITAL ACCEPTANCE, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 1999-B,
Class [A-1] [A-2] [A-3] [A-4] [A-5]
evidencing a percentage interest in the distributions allocable to the
Class [A-1] [A-2] [A-3] [A-4] [A-5] Certificates with respect to the
Trust Fund consisting of the Underlying Certificate
Greenwich Capital Acceptance, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by Greenwich Capital Acceptance, Inc. or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Underlying Certificate are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that _______________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Class [A-1] [A-2] [A-3] [A-4] [A-5] Certificates) in
certain monthly distributions with respect to the Trust Fund consisting of the
Underlying Certificate and deposited by Greenwich Capital Acceptance, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Trust Agreement
dated as of October 1, 1999 (the "Trust Agreement") between the Depositor and
The Bank of New York, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Trust Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution of interest
received on the Underlying Certificate will be made on the 19th day of each
calendar month or if such 19th day is not a Business Day, on the first
Business Day following such 19th day (a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount required to be distributed to Holders of Class
[A-1] [A-2] [A-3] [A-4] [A-5] Certificates on such Distribution Date pursuant
to Section 3.04 of the Trust Agreement. The Record Date applicable to the
first Distribution Date is the Closing Date and as to each succeeding
Distribution Date is the last Business Day of the month next preceding the
month of such Distribution Date.
Distributions to any Certificateholder on any Distribution Date shall be
made by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. Except as otherwise provided in the Trust Agreement, the final
distribution on this Certificate will be made in the applicable manner
described above, but only upon presentment and surrender of this Certificate
at the Corporate Trust Office or such other location specified in the notice
to Certificateholders of such final distribution.
No Transfer of a Class [A-1] [A-2] [A-3] [A-4] [A-5] Certificate shall be
made unless the Trustee shall have received (i) a representation letter from
the transferee of a Class [A-1] [A-2] [A-3] [A-4] [A-5] Certificate acceptable
to and in form and substance satisfactory to the Trustee that such transferee
is not an employee benefit plan subject to Section 406 of ERISA or a plan
subject to Section 4975 of the Code, nor a Person acting on behalf of any such
plan or using the assets of any such plan to effect such Transfer, (ii) if the
purchaser is an insurance company, a representation letter that the purchaser
is an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under PTCE 95-60, or (iii) in the case of any Class [A-1] [A-2] [A-3] [A-4]
[A-5] Certificate presented for registration in the name of an employee
benefit plan subject to ERISA or a plan subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other Person acting on behalf of such plan or using the
assets of any such plan to effect such Transfer, an Opinion of Counsel to the
effect that the purchase or holding of such Class [A-1] [A-2] [A-3] [A-4]
[A-5] Certificate will not result in the assets of the Trust Fund being deemed
to be "plan assets" and subject to the prohibited transaction provisions of
ERISA and the Code and will not subject the Trustee to any obligation in
addition to those expressly undertaken in the Trust Agreement. Such
representation shall be deemed to have been made to the Trustee by the
Transferee's acceptance of a Certificate of this Class and by a beneficial
owner's acceptance of its interest in a Certificate of this Class.
Notwithstanding anything else to the contrary herein, any purported Transfer
of a Class [A-1] [A-2] [A-3] [A-4] [A-5] Certificate to or on behalf of an
employee benefit plan subject to ERISA or a plan subject to Section 4975 of
the Code without the delivery to the Trustee of an Opinion of Counsel, which
shall not be an expense of the Depositor or the Trustee, satisfactory to the
Trustee as described above shall be null and void and of no effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
* * * * *
This Class [A-1] [A-2] [A-3] [A-4] [A-5] Certificate shall not be
entitled to any benefit under the Trust Agreement or be valid for any purpose
unless manually countersigned by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 19__
THE BANK OF NEW YORK,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
EXHIBIT B
[FORM OF CLASS T CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED TO ANY
PERSON OTHER THAN A SUCCESSOR TRUSTEE IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 4.02 OF THE TRUST AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS
CERTIFICATE TO OR ON BEHALF OF AN PERSON OTHER THAN A SUCCESSOR TRUSTEE SHALL
BE NULL AND VOID AND OF NO EFFECT.
Certificate No.: ____
First Distribution Date: _________________
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $____________
GREENWICH CAPITAL ACCEPTANCE, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 1999-B,
Class T
evidencing a percentage interest in the distributions allocable
to the Class T Certificate with respect to the Trust Fund
consisting of the Underlying Certificate
Greenwich Capital Acceptance, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by Greenwich Capital Acceptance, Inc. or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Underlying Certificate are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that The Bank of New York is the registered owner of 100%
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the denomination of this Certificate by the aggregate of the denominations of
all Class Certificates) in certain monthly distributions with respect to the
Trust Fund consisting of the Underlying Certificate and deposited by Greenwich
Capital Acceptance, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Trust Agreement dated as of October 1, 1999 (the "Trust
Agreement") between the Depositor and The Bank of New York, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Trust Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution of interest
received on the Underlying Certificate will be made on the 19th day of each
calendar month or if such 19th day is not a Business Day, on the first
Business Day following such 19th day (a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount required to be distributed to Holders of the
Class T Certificate on such Distribution Date pursuant to Section 3.04 of the
Trust Agreement. The Record Date applicable to the first Distribution Date is
the Closing Date and as to each succeeding Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions to any Certificateholder on any Distribution Date shall be
made by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor. Except as otherwise provided in the Trust Agreement, the final
distribution on this Certificate will be made in the applicable manner
described above, but only upon presentment and surrender of this Certificate
at the Corporate Trust Office or such other location specified in the notice
to Certificateholders of such final distribution.
No Transfer of the Class T Certificate shall be made to any Person other
than a successor trustee under the Trust Agreement. Notwithstanding anything
else to the contrary herein, any purported Transfer of the Class T Certificate
to or on behalf of a Person other than a successor trustee shall be null and
void and of no effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
* * * * *
This Class T Certificate shall not be entitled to any benefit under the
Trust Agreement or be valid for any purpose unless manually countersigned by
an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 19__
THE BANK OF NEW YORK,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
EXHIBIT C
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"). BY ACCEPTING THIS CERTIFICATE, A TRANSFEREE
SHALL BE DEEMED TO HAVE REPRESENTED TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, NOR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, NOR
IS SUCH TRANSFEREE ACQUIRING THIS CERTIFICATE ON BEHALF OF OR WITH THE ASSETS
OF A PLAN. [THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON CLASS A-R
CERTIFICATE" ISSUED UNDER THE TRUST AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON.]
Certificate No.: ______
First Distribution Date: _________________
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $____________
GREENWICH CAPITAL ACCEPTANCE, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 1999-B,
CLASS A-R
evidencing a percentage interest in the distributions allocable
to the Class A-R Certificate with respect to the Trust Fund
consisting of the Underlying Certificate
Greenwich Capital Acceptance, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by Greenwich Capital Acceptance, Inc. or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Underlying Certificate are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that _______________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in certain
monthly distributions with respect to the portion of the Trust Fund consisting
of the Underlying Certificate and deposited by Greenwich Capital Acceptance,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Trust
Agreement dated as of October 1, 1999 (the "Trust Agreement") between the
Depositor and The Bank of New York, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned in the Trust Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to
which Trust Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution received on
the Underlying Certificate will be made on the 19th day of each calendar month
or if such 19th day is not a Business Day, on the first Business Day following
such 19th day (a "Distribution Date"), commencing on the first Distribution
Date specified above, to the Person in whose name this Certificate is
registered at the close of business on the applicable Record Date in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to Holders of the Class A-R
Certificate on such Distribution Date pursuant to Section 3.04 of the Trust
Agreement. The Record Date applicable to the first Distribution Date is the
Closing Date and as to each succeeding Distribution Date is the last Business
Day of the month next preceding the month of such Distribution Date.
Except as otherwise provided in the Trust Agreement, the distribution of
the proceeds of any remaining assets of the Trust Fund on this Certificate
shall be made by wire transfer of immediately available funds to the account
of such Certificateholder at a bank or other entity having appropriate
facilities therefor.
No Transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received (i) a representation letter from the transferee of a Class
A-R Certificate in form and substance satisfactory to the Trustee that such
transferee is not an employee benefit plan subject to Section 406 of ERISA or
a plan subject to Section 4975 of the Code, nor a Person acting on behalf of
any such plan or using the assets of any such plan to effect such Transfer or
(ii) in the case of any such Class A-R Certificate presented for registration
in the name of an employee benefit plan subject to ERISA or a plan subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any Person acting on behalf of
any such plan or using the assets of any such plan to effect such Transfer, an
Opinion of Counsel to the effect that the purchase or holding of such Class
A-R Certificate will not result in the assets of REMIC I being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Trustee to any obligation in addition to
those expressly undertaken in the Trust Agreement. Notwithstanding anything
else to the contrary herein, any purported Transfer of a Certificate to or on
behalf of an employee benefit plan subject to ERISA or a plan subject to
Section 4975 of the Code without the delivery to the Trustee of an Opinion of
Counsel, which shall not be an expense of the Depositor or the Trustee,
satisfactory to the Trustee as described above shall be null and void and of
no effect.
Each Holder of this Class A-R Certificate shall be deemed to have agreed
to be bound by the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class A-R Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class A-R Certificate may be
transferred without delivery to the Trustee of (a) a Transfer Affidavit of the
proposed transferee and (b) a Transfer certificate of the transferor, each of
such documents to be in the form described in the Trust Agreement, (iii) each
person holding or acquiring any Ownership Interest in this Class A-R
Certificate must agree to require a Transfer Affidavit and to deliver a
Transferor Affidavit to the Trustee as required pursuant to the Trust
Agreement, (iv) any attempted or purported Transfer of any Ownership Interest
in this Class A-R Certificate in violation of such restrictions will be
absolutely null and void and shall vest no rights in the purported transferee,
and (v) if any person other than a Permitted Transferee acquires any Ownership
Interest in this Class A-R Certificate in violation of such restrictions, then
the Trustee will have the right, in its sole discretion and without notice to
the Holder of this Class A-R Certificate, to sell this Class A-R Certificate
to a purchaser selected by the Trustee, which purchaser may be the Trustee, or
any affiliate of the Trustee, on such terms and conditions as the Trustee may
choose.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
* * * * *
This Class A-R Certificate shall not be entitled to any benefit under the
Trust Agreement or be valid for any purpose unless manually countersigned by
an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 19__
THE BANK OF NEW YORK,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
EXHIBIT D
[Form of Reverse of Certificate]
GREENWICH CAPITAL ACCEPTANCE, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 1999-B
This Certificate is one of a duly authorized issue of Certificates
designated as Greenwich Capital Acceptance, Inc. Securitization Trust, Series
1999-B issued in seven Classes (Class X-0, Xxxxx X-0, Class A-3, Class A-4,
Class A-5, Class T and Class A-R, herein collectively called the
"Certificates"), and representing a beneficial ownership interest in (i) the
Underlying Certificate, (ii) the distributions thereon on and after the
Underlying Remittance Date in October 1999, and (iii) the Certificate Account
and such assets that are deposited therein from time to time and any
investments thereof, together with any and all income, proceeds and payments
with respect thereto.
The Certificates are limited in right of payment to certain distributions
in respect of the Underlying Certificate, all as more specifically set forth
in the Trust Agreement. The Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds on deposit in the
Certificate Account for payment hereunder and that the Trustee is not liable
to the Certificateholders for any amount payable under this Certificate or the
Trust Agreement or, except as expressly provided in the Trust Agreement,
subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement and
reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee and the rights of the Certificateholders under the Trust Agreement
at any time by the Depositor and the Trustee with the consent of the Holders
of a Majority in Interest of each Class of Certificates affected thereby. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the Transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Trust Agreement. As provided in the
Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee 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 Fund created thereby shall terminate upon the occurrence of the last
action required to be taken by the Trustee pursuant to the Trust Agreement
following the receipt of the final distribution to be made on the Underlying
Certificate upon presentation and surrender of the Underlying Certificate in
accordance with the terms and conditions of the Underlying Agreement.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Pass-Through Certificate and
hereby authorizes the transfer of registration of such Interest to assignee on
the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
____________________________________________________________________________
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to __________________________________________
_________________________________________________________________________,
for the account of ______________________________________________________,
account number ____________________________, or, if mailed by check, to
_______________________________________. Applicable statements should be
mailed to _______________________________________________________________
________________.
This information is provided by ____________________________________,
the assignee named above, or ____________________________________________,
as its agent.
STATE OF )
) ss.:
COUNTY OF )
On the __th day of _________, 19__ before me, a notary public in and for
said State, personally appeared ______________ __________, known to me who,
being by me duly sworn, did depose and say that he executed the foregoing
instrument.
_________________________
Notary Public
[Notarial Seal]
EXHIBIT E
[FORM OF TRANSFEROR'S AFFIDAVIT]
Date:
Greenwich Capital Acceptance, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
The Bank of New York
[Trustee's Address]
Re: Greenwich Capital Acceptance, Inc.
Resecuritization Mortgage Trust, Series 1999-B
Ladies and Gentlemen:
In connection with our disposition of the Class A-R Certificate issued
pursuant to the Trust Agreement dated as of October 1, 1999 (the "Agreement")
between Greenwich Capital Acceptance, Inc., as depositor and The Bank of New
York, as trustee, relating to the Greenwich Capital Acceptance, Inc.
Resecuritization Mortgage Trust, Series 1999-B, we certify that we have no
actual knowledge that the transferee is not a Permitted Transferee. All
capitalized terms used herein shall have the meaning given them in the
Agreement.
Very truly yours,
----------------------------
Name of Transferor
By: ________________________
Name: ______________________
Title: _____________________
EXHIBIT F
[FORM OF TRANSFER AFFIDAVIT FOR THE
CLASS A-R CERTIFICATE]
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF _______________ )
) ss.:
COUNTY OF ______________ )
__________________________, being first duly sworn, deposes and says:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in the Class A-R
Certificate (the "Certificate") issued pursuant to the Trust
Agreement, (the "Agreement"), relating to the above-referenced
Series, by and between Greenwich Capital Acceptance, Inc., as
depositor (the "Depositor") and The Bank of New York, as Trustee.
Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make
this affidavit on behalf of the Transferee.
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"), or an ERISA Prohibited
Holder, and will not be a "disqualified organization" as of [date of
transfer], and that the purchaser is not acquiring the
Resecuritization Mortgage Trust, Series 1999-B, Class A-R
Certificate (the "Residual Certificate") for the account of, or as
agent (including as 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. For these purposes, a
"disqualified organization" means the United States, any state or
political subdivision thereof, any foreign government, any
international organization, any agency or instrumentality if all of
its activities are subject to tax and a majority of its board of
directors is not selected by such governmental entity), any
cooperative organization furnishing electric energy or providing
telephone service to persons in rural areas as described in Code
Section 1381(a)(2)(C), or any organization (other than a farmers'
cooperative described in Code Section 521) that is exempt from
federal income tax unless such organization (other than a farmers'
cooperative described in Code Section 521) that is exempt from
federal income tax unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511. For these
purposes, an "ERISA Prohibited Holder" means an employee benefit
plan subject to the fiduciary provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and/or Code
Section 4975 or any governmental plan, as defined in Section 3(32)
of ERISA, subject to any federal, state or local law which is, to a
material extent, similar to the foregoing provisions of ERISA or the
Code (collectively, a "Plan") or a Person investing the assets of
such a Plan.
4. That the Purchaser historically has paid its debts as they
have come due and intends to pay its debts as they come due in the
future and the Purchaser intends to pay taxes associated with
holding the Residual Certificate as it becomes due.
5. That the Purchaser understands that it may incur tax
liabilities with respect to the Residual Certificate in excess of
cash flow generated by the Residual Certificate.
6. That the Purchaser will not transfer the Residual
Certificate to any person or entity from which the Purchaser has not
received an affidavit substantially in the form of this affidavit
and as to which the Purchaser has actual knowledge that the
requirements set forth in paragraphs 3, 4 or 7 hereof are not
satisfied or that the Purchaser knows or has reason to know does not
satisfy the requirements set forth in paragraph 4 hereof.
7. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds the Residual Certificate in connection
with the conduct of a trade or business within the United States and
has furnished the transferor and the Trustee with an effective
Internal Revenue Service Form 4224 or (iii) is a Non-U.S. Person
that has delivered to both the transferor and the Trustee an opinion
of a nationally recognized tax counsel to the effect that the
transfer of the Residual Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder
and that such transfer of the Residual Certificate will not be
disregarded for federal income tax purposes. "Non-U.S. Person" means
an individual, corporation, partnership or other person other than a
citizen or resident of the United States, a corporation or
partnership (including an entity treated as a corporation or
partnership for U.S. federal income tax purposes) created or
organized in or under the laws of the United States, any state
thereof or the District of Columbia (except, in the case of a
partnership, Treasury regulations are adopted that provide
otherwise), an estate that is subject to U.S. federal income tax
regardless of the source of its income, or a trust if a court within
the United States is able to exercise primary supervision of the
administration of the trust and one or more United States persons
have the authority to control all substantial decisions of the
trust.
8. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the restrictions
on transfer of the Residual Certificate to such a "disqualified
organization," an agent thereof or a person that does not satisfy
the requirements of paragraphs 4, 5 and 7 hereof.
9. That, if a "tax matters person" is required to be designated
with respect to the REMIC, the Purchaser agrees to act as "tax
matters person" and to perform the functions of "tax matters
partner" of the REMIC pursuant to Section 2.04(c) of the Trust
Agreement, and agrees to designate the Trustee as the Purchaser's
agent in performing the functions of "tax matters person" and "tax
matters partner."
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 ___________________ this __th day of ______________.
[Name of Purchaser]
By:________________________________
Name:
Title:
Personally appeared before me the above-named ________________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the __________________ of the Purchaser, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Purchaser.
Subscribed and sworn before me this ___th day of _____________.
----------------------------
Notary Public
Count of ____________________
State of _____________________
My Commission expires the ____ day of
______________, 19__
EXHIBIT 1
to EXHIBIT F
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial, as owner or pledgee.
"Permitted Transferee": (i) the United States, any State or political
subdivision thereof, or any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization or any agency or
instrumentality of either of the foregoing, (iii) an organization (except
certain farmers' cooperatives described in section 521 of the Code) which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(l) of the Code) with respect to any
Residual Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) a Person that is not a citizen or
resident of the United States, a corporation or partnership (including an
entity treated as a corporation or partnership for U.S. federal income tax
purposes) created or organized in or under the laws of the United States, any
State thereof or the District of Columbia (except, in the case of a
partnership, Treasury regulations are adopted that provide otherwise), an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust
unless such Person has furnished the transferor and the Trustee with a duly
completed Internal Revenue Service Form 4224 or any applicable successor form,
and (vi) any other Person so designated by the Depositor based upon an Opinion
of Counsel that the Transfer of an Ownership Interest in the Class A-R
Certificate to such Person may cause the REMIC hereunder to fail to qualify as
a REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
"Person": Any individual, corporation, partnership, limited partnership,
joint venture, bank, limited liability company, association, joint-stock
company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any transfer, sale, pledge, hypothecation or other form of
assignment of any Ownership Interest in a Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
EXHIBIT 2
to EXHIBIT F
Sections 4.03(e) and (f) of the Agreement
(e) Each Person who has or who acquires any Ownership Interest in a
Residual 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 authorized the Trustee or its designee under clause
(iii)(A) below to deliver payments to a Person other than such Person and to
negotiate the terms of any mandatory sale under clause (iii)(B) below and to
execute all instruments of Transfer and to do all other things necessary in
connection with any such sale. The rights of each Person acquiring any
Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change
in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require
delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of a Transfer Affidavit
from the proposed Transferee, in form and substance
satisfactory to the Trustee, representing and warranting, among
other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual
Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor
to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 4.02(e) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (B) above, if a Responsible
Officer of the Trustee who is assigned to this transaction has
actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (x) to require a Transfer
Affidavit from any other Person to whom such Person attempts to
transfer its Ownership Interest in a Residual Certificate and
(y) not to transfer its Ownership Interest unless it provides a
Transferor Affidavit to the Trustee stating that, among other
things, it has no actual knowledge that such other Person is
not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in
such Certificate, agrees to give the Trustee written notice
that it is a "pass-through interest holder" within the meaning
of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Residual
Certificate, if it is, or is holding an Ownership Interest in a
Residual Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee will register the Transfer of any Residual
Certificate only if it shall have received the Transfer Affidavit
and all of such other documents as shall have been reasonably
required by the Trustee as a condition to such registration. In
addition, no Transfer of a Residual Certificate shall be made unless
the Trustee shall have received a representation letter from the
Transferee of such Certificate to the effect that such Transferee is
a Permitted Transferee.
(iii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
4.02(e), then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights as holder
thereof retroactive to the date of registration of such Transfer of
such Residual Certificate. The Trustee shall be under no liability
to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 4.02(e) or
for making any payments due on such Certificate to the holder
thereof or for taking any other action with respect to such holder
under the provisions of this Agreement.
(B) If any purported Transferee shall become a holder of a
Residual Certificate in violation of the restrictions in
this Section 4.02(e) and to the extent that the
retroactive restoration of the rights of the holder of
such Residual Certificate as described in clause (iii)(A)
above shall be invalid, illegal or unenforceable, then the
Trustee shall have the right, without notice to the holder
or any prior holder of such Residual Certificate, to sell
such Residual Certificate to a purchaser selected by the
Trustee on such terms as the Trustee may choose. Such
purported Transferee shall promptly endorse and deliver
each Residual Certificate in accordance with the
instructions of the Trustee. Such purchaser may be the
Trustee itself or any affiliate of the Trustee. The
proceeds of such sale, net of the commissions (which may
include commissions payable to the Trustee or its
affiliates), expenses and taxes due, if any, will be
remitted by the Trustee to such purported Transferee. The
terms and conditions of any sale under this clause
(iii)(B) shall be determined in the sole discretion of the
Trustee, and the Trustee shall not be liable to any Person
having an Ownership Interest in a Residual Certificate as
a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information necessary to compute any tax imposed (A) as a result of
the Transfer of an Ownership Interest in a Residual Certificate to
any Person who is a Disqualified Organization, including the
information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time
any Person which is a Disqualified Organization. Reasonable
compensation for providing such information may be accepted by the
Trustee.
(v) The provisions of this Section 4.02(e) set forth prior to this
subsection (v) may be modified, added to or eliminated, provided
that there shall have been delivered to the Trustee at the expense
of the party seeking to modify, add to or eliminate any such
provision the following:
(A) written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such provisions
will not cause such Rating Agency to downgrade its then-current
ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, to the effect that such modification of, addition to
or elimination of such provisions will not cause the REMIC created
hereunder to cease to qualify as a REMIC and will not cause the
REMIC created hereunder to be subject to an entity-level tax caused
by the Transfer of any Residual Certificate to a Person that is not
a Permitted Transferee or (y) a Person other than the prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a
Residual Certificate to a Person that is not a Permitted Transferee.
(f) The restrictions on Transfers of Residual Certificates set forth in
Section 4.02(e) hereof shall cease to apply to Transfers occurring after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Depositor or the Trustee, to the effect that
the elimination of such restrictions will not cause the Trust Fund to fail to
qualify as a REMIC at any time that the related Certificates are outstanding.
