Exhibit 3.1
TRUST AGREEMENT
among
FINANCIAL ASSET SECURITIES CORP.,
as Depositor,
WILMINGTON TRUST COMPANY,
as Owner Trustee
and
DEUTSCHE BANK NATIONAL COMPANY
as Certificate Registrar
Dated as of March 30, 2005
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1,
Asset-Backed Notes, Series 2005-HE1
ARTICLE I
DEFINITIONS
Section 1.01. Definitions..............................................................................1
Section 1.02. Other Definitional Provisions............................................................1
ARTICLE II
ORGANIZATION
Section 2.01. Name.....................................................................................3
Section 2.02. Office...................................................................................3
Section 2.03. Purpose and Powers.......................................................................3
Section 2.04. Appointment of the Owner Trustee.........................................................3
Section 2.05. Initial Capital Contribution; Declaration of Trust.......................................4
Section 2.06. Issuance of Initial Residual Certificates................................................4
Section 2.07. Liability of the Holder of the Residual Certificates.....................................4
Section 2.08. Situs of Trust...........................................................................4
Section 2.09. Title to Trust Property..................................................................5
Section 2.10. Representations and Warranties of the Depositor..........................................5
ARTICLE III
THE RESIDUAL CERTIFICATES AND TRANSFERS OF INTERESTS
Section 3.01. The Residual Certificates................................................................7
Section 3.02. Execution, Authentication and Delivery of the Residual Certificates......................7
Section 3.03. Registration of and Limitations on Transfers and Exchanges of the
Residual Certificates....................................................................7
Section 3.04. Lost, Stolen, Mutilated or Destroyed Residual Certificates..............................11
Section 3.05. Persons Deemed Certificateholders.......................................................12
Section 3.06. Access to List of Certificateholders' Names and Addresses...............................12
Section 3.07. ERISA Restrictions......................................................................12
Section 3.08. Maintenance of Office or Agency.........................................................12
Section 3.09. Certificate Paying Agent................................................................12
Section 3.10. Initial Beneficiary.....................................................................14
Section 3.11. Distributions on Residual Certificates..................................................14
ARTICLE IV
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 4.01. Certificate Account.....................................................................15
Section 4.02. Application of Trust Funds..............................................................15
Section 4.03. Method of Payment.......................................................................15
Section 4.04. Segregation of Moneys; No Interest......................................................15
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE; ACTION BY CERTIFICATEHOLDERS
Section 5.01. General Authority.......................................................................17
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Section 5.02. General Duties..........................................................................17
Section 5.03. Action Upon Instruction.................................................................17
Section 5.04. No Duties Except as Specified under Specified Documents or in Instructions..............18
Section 5.05. Restrictions............................................................................18
Section 5.06. Prior Notice to the Holders with Respect to Certain Matters.............................19
Section 5.07. Action by the Holders with Respect to Bankruptcy........................................21
Section 5.08. Restrictions on the Holders' Power......................................................21
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trust and Duties..........................................................22
Section 6.02. Furnishing of Documents.................................................................23
Section 6.03. Books and Records.......................................................................23
Section 6.04. Representations and Warranties..........................................................23
Section 6.05. Reliance; Advice of Counsel.............................................................24
Section 6.06. Not Acting in Individual Capacity.......................................................25
Section 6.07. Owner Trustee Not Liable for Residual Certificates or Collateral........................25
Section 6.08. Owner Trustee May Own Residual Certificates and Notes...................................26
Section 6.09. Licenses................................................................................26
Section 6.10. Doing Business in Other Jurisdictions...................................................26
Section 6.11. Xxxxxxxx-Xxxxx Act......................................................................26
ARTICLE VII
INDEMNIFICATION AND COMPENSATION
Section 7.01. Trust Expenses..........................................................................27
Section 7.02. Indemnification.........................................................................27
Section 7.03. Compensation............................................................................27
Section 7.04. Lien on Trust Estate....................................................................27
ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01. Termination of Agreement................................................................28
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee..............................................29
Section 9.02. Resignation or Removal of Owner Trustee.................................................29
Section 9.03. Successor Owner Trustee.................................................................29
Section 9.04. Merger or Consolidation of Owner Trustee................................................30
Section 9.05. Appointment of Co-Trustee or Separate Trustee...........................................30
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments..............................................................32
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Section 10.02. No Legal Title to Trust Estate in Holders...............................................33
Section 10.03. Pledge of Collateral by Owner Trustee is Binding........................................33
Section 10.04. Limitations on Rights of Others.........................................................33
Section 10.05. Notices.................................................................................33
Section 10.06. Severability............................................................................34
Section 10.07. Separate Counterparts...................................................................34
Section 10.08. Successors and Assigns..................................................................34
Section 10.09. Headings................................................................................34
Section 10.10. Governing Law...........................................................................34
Section 10.11. No Petition.............................................................................34
Section 10.12. No Recourse.............................................................................35
Section 10.13. Appointment of Officers.................................................................35
Section 10.14. Officers to Provide Information to the Owner Trustee....................................35
Exhibit A-1 Form of Class C Certificate
Exhibit A-2 Form of Class G Certificate
Exhibit A-3 Form of Class R Certificate
Exhibit A-4 Form of Class R-X Certificate
Exhibit B [Reserved]
Exhibit C Form of Certificate of Trust
Exhibit D-1 Form of Rule 144A Investment Letter
Exhibit D-2 Form of Non-Rule 144A Investment Letter
Exhibit E Form of Certificate of Non-Foreign Status
Exhibit F-1 Form of Class [G][R][R-X] Certificate Transfer Affidavit
(Transferor)
Exhibit F-2 Form of Class [G][R][R-X] Certificate Transfer Affidavit
(Transferee)
Exhibit G Owner Trustee Fee Letter Agreement
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This TRUST AGREEMENT, dated as of March 30, 2005, is by and among
FINANCIAL ASSET SECURITIES CORP., a Delaware corporation (the "Depositor"),
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as owner trustee (the
"Owner Trustee"), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as certificate registrar (the "Certificate Registrar").
WHEREAS, pursuant to the Sale and Servicing Agreement entered into
simultaneously with this Trust Agreement, the Depositor intends to sell,
transfer and assign to a Delaware statutory trust created hereunder certain
Mortgage Loans and related assets (collectively, the "Collateral"), which
statutory trust would then pledge such Collateral under an indenture in order to
secure the issuance of its Asset-Backed Notes, Series 2005-HE1 Class A-1A, Class
X-0X, Xxxxx X-0, Class A-3, Class A-4, Class A-5 (collectively, the "Class A
Notes'), Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 (collectively, the "Class M Notes"), Class B-1, Class B-2 and
Class B-3 Notes (collectively, the "Class B Notes", and collectively with the
Class A Notes and Class M Notes, the "Notes"), the net proceeds of which would
be applied toward the purchase of the Collateral.
WHEREAS, the Depositor, the Owner Trustee and the Certificate Registrar
desire to enter into this Agreement in order to effect the foregoing.
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. For all purposes of this Agreement, the
following terms shall have the meanings set forth in Annex A to the Sale and
Servicing Agreement.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are
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references to Sections and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation."
(d) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
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ARTICLE II
ORGANIZATION
Section 2.01. NAME. The trust established under this Agreement shall be
referred to as "GreenPoint Mortgage Funding Trust 2005-HE1" in which name the
Owner Trustee and the Officers may conduct the activities contemplated hereby,
including the making and executing of contracts and other instruments on behalf
of the Trust and xxx and be sued.
Section 2.02. OFFICE. The principal office of the Trust shall be in
care of the Owner Trustee at its Corporate Trust Office. The Trust shall also
have an office in care of the Administrator as set forth in the Administration
Agreement.
Section 2.03. PURPOSE AND POWERS. The Trust shall have the power and
authority to engage in any of the following activities:
(a) to issue the Notes from time to time pursuant to the Indenture
and the Residual Certificates pursuant to this Agreement and to sell, transfer
and exchange such Notes and such Residual Certificates;
(b) with the proceeds of the sale of the Notes and the Residual
Certificates, to pay the organizational, start-up and transactional expenses of
the Trust and to pay the balance of the Net Proceeds from the Notes to the
Depositor in consideration of the transfer to the Trust of the Collateral;
(c) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture on behalf of the Noteholders and to hold,
manage and distribute to the Certificateholders pursuant to the terms of the
Sale and Servicing Agreement any portion of the Collateral released from the
lien of, and remitted to the Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Operative
Agreements to which it is to be a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Operative Agreements, to engage
in such other activities as may be required in connection with conservation of
the Trust Estate and the making of distributions and payments, as applicable, to
the Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Operative Agreements.
Section 2.04. APPOINTMENT OF THE OWNER TRUSTEE. The Depositor hereby
appoints the Bank to act as Owner Trustee of the Trust effective as of the date
hereof to have all the rights, powers and duties set forth herein with respect
to accomplishing the purposes of the Trust. The Owner Trustee is hereby
authorized to execute this Agreement, the Indenture, the Administration
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Agreement, the Sale and Servicing Agreement and any other Operative Agreement on
behalf of the Trust. The Owner Trustee is hereby authorized to take all actions
required or permitted to be taken by it in accordance with the terms of this
Agreement.
Section 2.05. INITIAL CAPITAL CONTRIBUTION; DECLARATION OF TRUST.
(a) The Depositor hereby sells, assigns, transfers, conveys and
sets over to the Trust, as of the date hereof, the sum of $1 in exchange for
which the Owner Trustee shall issue to the Depositor the Class G Certificates.
The Owner Trustee hereby acknowledges receipt in trust from the Depositor, as of
the Closing Date, of the foregoing contribution which shall constitute the
initial corpus of the Trust Estate and shall be deposited in the Certificate
Account. The Depositor shall pay organizational expenses of the Trust as they
may arise or shall, upon the request of the Owner Trustee, promptly reimburse
the Owner Trustee for any such expenses paid by the Owner Trustee. The
Depositor's payment of such amounts will not increase the Certificate Principal
Balance of the Class G Certificates.
(b) The Owner Trustee hereby declares that it will hold the Trust
Estate in trust upon and subject to the conditions set forth herein for the use
and benefit of the Certificateholders, subject to the obligations of the Trust
under the Operative Agreements. It is the intention of the parties hereto that
the Trust constitutes a statutory trust under the Delaware Trust Statute and
that this Agreement constitutes the governing instrument of such statutory
trust. No later than the Closing Date, the Owner Trustee shall cause the filing
of the Certificate of Trust with the Secretary of State. Except as otherwise
provided in this Agreement, the rights of the Certificateholders will be those
of beneficial owners of the Trust.
Section 2.06. ISSUANCE OF INITIAL RESIDUAL CERTIFICATES. Upon the
formation of the Trust by the initial contribution by the Depositor pursuant to
Section 2.05, the Owner Trustee will issue the Class G Certificates to the
Initial Holder.
Section 2.07. LIABILITY OF THE HOLDER OF THE RESIDUAL CERTIFICATES.
Each Certificateholder shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of Delaware.
Section 2.08. SITUS OF TRUST.
The Trust will be located and administered in the State of Delaware.
All bank accounts maintained by the Owner Trustee on behalf of the Trust shall
be located in the States of Delaware, New York or the jurisdiction where the
Indenture Trustee maintains bank accounts with respect to collections on the
Collateral (which is currently California). The only office of the Trust will be
as described in Section 2.02 hereof. The Trust shall not have any employees;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
will be received by the Trust only in Delaware, New York, the jurisdiction in
which the Indenture Trustee maintains the Certificate Account or such other
jurisdiction designated by the Depositor, and payments will be made by the Trust
only from Delaware, New York, the jurisdiction in which the Indenture Trustee
maintains the Certificate Account or such other jurisdiction designated by the
Depositor.
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Section 2.09. TITLE TO TRUST PROPERTY.
(a) Subject to the Indenture, title to all of the Trust Estate
shall be vested at all times in the Trust as a separate legal entity until this
Agreement terminates pursuant to Article VIII hereof; provided, however, that if
the laws of any jurisdiction require that title to any part of the Trust Estate
be vested in the trustee of the Trust, then title to that part of the Trust
Estate shall be deemed to be vested in the Owner Trustee or any co-trustee or
separate trustee, as the case may be, appointed pursuant to Article IX of this
Agreement.
(b) The Certificateholders shall have beneficial but not legal
title to any part of the Trust Estate. No transfer by operation of law or
otherwise of any interest of the Certificateholders shall operate to terminate
this Agreement or the trust created hereunder or entitle any transferee to an
accounting or to the transfer to it of any part of the Trust Estate.
Section 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents and warrants to the Owner Trustee and the
Certificate Registrar as of the Closing Date, as follows:
(a) The Depositor is a Delaware corporation validly existing and
in good standing. The Depositor has the power and authority to execute and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Depositor and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary action of the Depositor; this Agreement evidences
the valid, binding and enforceable obligation of the Depositor; and all
requisite action has been taken by the Depositor to make this Agreement valid,
binding and enforceable upon the Depositor in accordance with its terms, subject
to the effect of bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally or the
application of equitable principles in any proceeding, whether at law or in
equity.
(b) The consummation of the transactions contemplated by this
Agreement will not result in (i) the breach of any terms or provisions of the
Depositor's certificate of incorporation or bylaws, (ii) the breach of any term
or provision of, or conflict with or constitute a default under or result in the
acceleration of any obligation under, any material agreement, indenture or loan
or credit agreement or other material instrument to which the Depositor, or its
property is subject, or (iii) the violation of any law, rule, regulation, order,
judgment or decree to which the Depositor or its respective property is subject.
(c) To the Depositor's best knowledge, it is not in default with
respect to any order or decree of any court or any order, regulation or demand
of any federal, state, municipal or other governmental agency, which default
might have consequences that would materially and adversely affect the condition
(financial or otherwise) or operations of the Depositor or its properties or
might have consequences that would materially and adversely affect its
performance hereunder.
(d) To the Depositor's best knowledge, there are no proceedings or
investigations pending or threatened before any court, regulatory body,
administrative agency or other
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governmental instrumentality having jurisdiction over the Depositor or its
properties: (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement.
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ARTICLE III
THE RESIDUAL CERTIFICATES AND TRANSFERS OF INTERESTS
Section 3.01. THE RESIDUAL CERTIFICATES. The Residual Certificates
shall initially be issued as four certificates in definitive, fully registered
form and shall initially be registered in the names set forth in Exhibits A-1
through A-4. The Residual Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of an Authorized Officer of the Owner Trustee
and authenticated in the manner provided in Section 3.02. A Residual Certificate
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Residual Certificate
or did not hold such offices at the date of authentication and delivery of such
Residual Certificate. A Person shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such Person's acceptance of a Residual Certificate duly
registered in such Person's name pursuant to Section 3.03.
Section 3.02. EXECUTION, AUTHENTICATION AND DELIVERY OF THE RESIDUAL
CERTIFICATES. Concurrently with the sale of the Collateral to the Trust pursuant
to the Sale and Servicing Agreement, the Owner Trustee shall cause the Residual
Certificates issued hereunder to be executed and authenticated on behalf of the
Trust and authenticated and delivered as set forth in Exhibits A-1 through A-4.
The Depositor hereby directs the Owner Trustee to so deliver the Residual
Certificates. The Residual Certificates shall not entitle its Holder to any
benefits under this Agreement or be valid for any purpose unless there shall
appear on such Residual Certificate a certificate of authentication
substantially in the form set forth in Exhibits A-1 through A-4 hereto,
respectively, executed by the Owner Trustee or the Certificate Registrar, as the
Owner Trustee's authenticating agent, by manual signature; such authentication
shall constitute conclusive evidence that such Residual Certificate shall have
been duly authenticated and delivered hereunder. A Residual Certificate shall be
dated the date of its authentication.
Section 3.03. REGISTRATION OF AND LIMITATIONS ON TRANSFERS AND
EXCHANGES OF THE RESIDUAL CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.08, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of the Residual
Certificates and of transfers and exchanges of the Residual Certificates as
herein provided; PROVIDED, HOWEVER, that no Class R Certificate, Class R-X
Certificate or Class G Certificate shall be issued in any such transfer and
exchange representing less than a 100% Percentage Interest in such Certificate.
Deutsche Bank National Trust Company shall be the initial Certificate Registrar.
If the Certificate Registrar resigns or is removed, the Owner Trustee, with the
consent of the Depositor, shall appoint a successor Certificate Registrar.
(b) Subject to satisfaction of the conditions set forth below,
upon surrender for registration of transfer of a Residual Certificate at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee shall
execute, authenticate and deliver (or cause the Certificate Registrar as its
authenticating agent to authenticate and deliver), in the name of the designated
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transferee, a new Residual Certificate evidencing the Percentage Interest of the
Residual Certificate so surrendered and dated the date of authentication by the
Owner Trustee or the Certificate Registrar.
Every Residual Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Residual Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Certificate Registrar in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of the Residual Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of the Residual Certificates or any other expense arising as a result
of any registration of transfer or exchange.
Except for the initial issuance of the Class G, Class R or Class R-X
Certificates on the Closing Date, no Person shall become a Certificateholder of
Class G, Class R or Class R-X Certificates until it shall establish its
non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9
and the Certificate of Non-Foreign Status set forth in Exhibit E hereto.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make and the Certificate Registrar shall not register any
transfer or exchange of a Class G Certificate, a Class R Certificate or a Class
R-X Certificate for a period of 15 days preceding the due date for any payment
with respect to such Residual Certificates.
(c) The Residual Certificates shall be assigned, transferred,
exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively,
for purposes of this Section 3.03 and any other Section referring to the
Residual Certificates, "transferred" or a "transfer") only in accordance with
this Section 3.03.
(d) No transfer of a Residual Certificate shall be made unless
such transfer is exempt from the registration requirements of the Securities Act
and any applicable state securities laws or is made in accordance with the
Securities Act and such laws. Each prospective transferee of a Residual
Certificate, other than the Initial Holder, shall represent and warrant, in
writing, to the Owner Trustee and the Certificate Registrar and any of their
respective successors that:
(i) Such Person is (A) a "qualified institutional buyer"
as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act") (and such Person shall execute an investment
letter in the form attached hereto as Exhibit D-1 to such effect) and
is aware that the seller of such Residual Certificate may be relying on
the exemption from the registration requirements of the Securities Act
provided by Rule 144A and is acquiring such Residual Certificate for
its own account or for the account of one or more qualified
institutional buyers for whom it is authorized to act or (B) in the
case of the Class C Certificates, an "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of the Securities Act (such Person
shall execute an investment letter in the
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form attached hereto as Exhibit D-2 to such effect) and is aware that
the seller of such Class C Certificate is relying on an exemption from
the registration requirements of the Securities Act and is acquiring
such C Certificate for its own account.
(ii) Such Person understands that such Residual
Certificate has not been and will not be registered under the
Securities Act and may be offered, sold, pledged or otherwise
transferred only to a person (A) whom the seller reasonably believes is
a "qualified institutional buyer" or (B) in the case of the Class C
Certificates, an "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) of the Securities Act, in each case in a transaction
exempt from registration under the Securities Act and in accordance
with any applicable securities laws of any state of the United States.
(iii) Such Person shall comply with the provisions of
Section 3.07, as applicable, relating to the ERISA restrictions with
respect to the acceptance or acquisition of such Residual Certificate.
(e) For so long as any of the Residual Certificates are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Certificate Registrar agrees to cooperate with, and act in
accordance with the direction of, the Depositor in providing to any
Certificateholders and to any prospective purchaser of Residual Certificates
designated by such Certificateholder, upon the request of such Certificateholder
or prospective purchaser, any information in the Certificate Registrar's
possession and required to be provided to such holder or prospective purchaser
to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act.
Any reasonable, out-of-pocket expenses incurred by the Certificate Registrar in
providing such information shall be reimbursed by the Depositor.
(f) Each prospective transferee of any Class G, Class R or Class
R-X Certificate, other than the Initial Holder, shall execute and deliver the
Certificate of Non-Foreign Status (in the form attached hereto as Exhibit E).
(g) Each Person that has or that acquires any Ownership Interest
in any Class G, Class R or Class R-X Certificate shall be deemed by the
acceptance or acquisition of such Ownership Interest to have agreed to be bound
by the following provisions and to have irrevocably appointed the Certificate
Registrar or its designee as its attorney-in-fact to negotiate the terms of any
mandatory sale under clause (v) below and to execute all instruments of transfer
and to do all other things necessary in connection with any such sale, and the
rights of each Person acquiring any Ownership Interest in the Class G, Class R
or Class R-X Certificates are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership
Interest in a Class G, Class R or Class R-X Certificate shall be a
Permitted Transferee and shall promptly notify the Owner Trustee and
the Certificate REGISTRAR of any change or impending change in its
status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a
Class G, Class R or Class R-X Certificate unless such Ownership
Interest is a PRO RATA undivided interest.
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(iii) No Ownership Interest in a Class G, Class R or Class
R-X Certificate may be transferred without the express written consent
of the Owner Trustee, the Depositor and the Certificate Registrar. In
connection with any proposed transfer of any Ownership Interest in a
Class G, Class R or Class R-X Certificate, the Owner Trustee shall as a
condition to such consent, require delivery to it, the Depositor and
the Certificate Registrar in form and substance satisfactory to it, of
each of the following:
(A) an affidavit in the form of Exhibit F-1
hereto from the proposed transferor, and an affidavit in the
form of Exhibit F-2 hereto from the proposed transferee to the
effect that such transferee is a Permitted Transferee and that
it is not acquiring its Ownership Interest in the Class G,
Class R or Class R-X Certificate that is the subject of the
proposed transfer as a nominee, trustee or agent for any
Person who is not a Permitted Transferee; and
(B) a covenant of the proposed transferee to the
effect that the proposed transferee agrees to be bound by and
to abide by the transfer restrictions applicable to the Class
G, Class R or Class R-X Certificate.
(iv) Any attempted or purported transfer of any Ownership
Interest in a Class G, Class R or Class R-X Certificate in violation of
the provisions of this Section 3.03 shall be absolutely null and void
and shall vest no rights in the purported transferee. If any purported
transferee shall, in violation of the provisions of this Section 3.03,
become a Holder of a Class G, Class R or Class R-X Certificate, then
the prior Holder of such Class G, Class R or Class R-X Certificate that
is a Permitted Transferee shall, upon discovery that the registration
of transfer of such Class G, Class R or Class R-X CERTIFICATE was not
in fact permitted by this Section 3.03, be restored to all rights as
Holder thereof retroactive to the date of registration of transfer of
such C Class G, Class R or Class R-X Certificate. The Owner Trustee and
the Certificate Registrar shall be under no liability to any Person for
any registration of transfer of any Class G, Class R or Class R-X
Certificate that is in fact not permitted by this Section 3.03 or for
making any distributions due on such Class G, Class R or Class R-X
Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long
as the Owner Trustee, the Depositor and the Certificate Registrar
received all affidavits and covenants with respect to such transfer
provided for under this Section 3.03. The Certificate Paying Agent, on
behalf of the Trust, shall be entitled to recover from any Holder of a
Class G, Class R or Class R-X Certificate that was in fact not a
Permitted Transferee at the time such distributions were made all
distributions made on such Class G, Class R or Class R-X Certificate.
Any such distributions so recovered by the Certificate Paying Agent
shall be distributed and delivered by the Certificate Paying Agent to
the prior Holder of such Residual Certificate that is a Permitted
Transferee.
(v) If any Person other than a Permitted Transferee
acquires any Ownership Interest in a Class G, Class R or Class R-X
Certificate in violation of the restrictions in this Section 3.03, then
the Certificate Registrar shall have the right but not the obligation,
without notice to the Holder of such Class G, Class R or Class R-X
Certificate or any other Person having an Ownership Interest therein,
to notify the underwriter to arrange
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for the sale of such Class G, Class R or Class R-X Certificate. The
proceeds of such sale, net of commissions (which may include
commissions payable to the Certificate Registrar or its affiliates),
expenses and taxes due, if any, will be remitted by the Certificate
Paying Agent to the previous Holder of such Class G, Class R or Class
R-X Certificate that is a Permitted Transferee, except that in the
event that the Certificate Paying Agent determines that the Holder of
such Class G, Class R or Class R-X Certificate may be liable for any
amount due under this Section 3.03 or any other provisions of this
Agreement, the Certificate Paying Agent may withhold a corresponding
amount from such remittance as security for such claim. The terms and
conditions of any sale under this clause (v) shall be determined in the
sole discretion of the Certificate Registrar and the Certificate Paying
Agent, and neither such Person shall be liable to any Person having an
Ownership Interest in a Class G, Class R or Class R-X Certificate as a
result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee
acquires any Ownership Interest in a Class G, Class R or Class R-X
Certificate in violation of the restrictions in this Section 3.03, then
the Certificate Registrar will provide to the Internal Revenue Service,
and to the persons specified in Section 860E(e)(3) of the Code,
information needed to compute the tax imposed under Section 860E(e)(1)
of the Code on transfers of residual interests to disqualified
organizations.
(h) Each Person that has or that acquires any Ownership Interest
in any Class G Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound to make advances and purchase
Additional Balances through funding of the Reserve Account as and to the extent
set forth in Section 2.01(b) of the Sale and Servicing Agreement.
Section 3.04. LOST, STOLEN, MUTILATED OR DESTROYED RESIDUAL
CERTIFICATES. If (a) a mutilated Residual Certificate is surrendered to the
Certificate Registrar, or (b) the Certificate Registrar receives evidence to its
satisfaction that a Residual Certificate has been destroyed, lost or stolen, and
there is delivered to the Certificate Registrar proof of ownership satisfactory
to the Certificate Registrar, together with such security or indemnity as
required by the Certificate Registrar and the Owner Trustee to save each of them
harmless, then in the absence of notice to the Certificate Registrar or the
Owner Trustee that such Residual Certificate has been acquired by a protected
purchaser, the Owner Trustee shall execute on behalf of the Trust, and the Owner
Trustee or the Certificate Registrar shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Residual
Certificate, a new Residual Certificate of like tenor and Percentage Interest.
In connection with the issuance of any new Residual Certificate under this
Section 3.04, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including any fees and expenses of counsel) and any tax
or other governmental charge that may be imposed in connection therewith. Any
duplicate Residual Certificate issued pursuant to this Section 3.04 shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Residual Certificate shall
be found at any time.
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Section 3.05. PERSONS DEEMED CERTIFICATEHOLDERS. Notwithstanding any
other provision contained herein, prior to due presentation of a Residual
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any Certificate Paying Agent may treat the Holder as the owner of
such Residual Certificate for the purpose of receiving distributions pursuant to
Section 4.02 and for all other purposes whatsoever, and none of the Trust, the
Owner Trustee, the Certificate Registrar or any Certificate Paying Agent shall
be bound by any notice to the contrary.
Section 3.06. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Certificate Registrar shall furnish or cause to be furnished to
the Depositor or the Owner Trustee, within 15 days after receipt by the
Certificate Registrar of a written request therefor from the Depositor or the
Owner Trustee, in such form as the Depositor or the Owner Trustee, as the case
may be, may reasonably require, of the name and address of the Holder as of the
most recent Record Date. A Holder, by receiving and holding a Residual
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Registrar or the Owner Trustee accountable or liable
for damages by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 3.07. ERISA RESTRICTIONS. The Residual Certificates may not be
acquired or transferred to a transferee for or on behalf of a Plan. Each
prospective transferee, other than the Initial Holder or its affiliate, shall
represent and warrant to the Certificate Registrar that it is not a Plan, in
accordance with Exhibit D or F hereto, as applicable. By accepting and holding
its beneficial ownership interest in its Residual Certificate, the Holder
thereof shall be deemed to have represented and warranted that it is not a Plan.
Section 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Certificate
Registrar on behalf of the Trust, shall maintain an office or offices or agency
or agencies where a Residual Certificate may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Residual Certificates and the Operative Agreements may be
served. The Certificate Registrar shall give the Owner Trustee prompt notice, in
writing, of any such notice or demand. The Certificate Registrar initially
designates the office of its agent located at 00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx
Entrance, New York, New York 10041 as its office for surrender of Residual
Certificates in connection with a transfer or exchange. The Certificate
Registrar shall give prompt written notice to the Depositor, the Owner Trustee
and the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
Section 3.09. CERTIFICATE PAYING AGENT.
(a) The Owner Trustee may appoint, and hereby appoints, the
Certificate Registrar as Certificate Paying Agent under this Agreement. The
Certificate Paying Agent shall make distributions to the Holders from the
Certificate Account pursuant to Section 4.02 hereof and Section 5.03 of the Sale
and Servicing Agreement and, upon request, shall report the amounts of such
distributions to the Owner Trustee. The Certificate Paying Agent shall have the
revocable power to withdraw funds from the Certificate Account for the purpose
of making the distributions referred to above. The Certificate Registrar hereby
accepts such appointment and
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further agrees that it will be bound by the provisions of this Agreement and the
Sale and Servicing Agreement relating to the Certificate Paying Agent and shall:
(i) hold all sums held by it for the distribution of
amounts due with respect to the Residual Certificates in trust for the
benefit of the Person entitled thereto until such sums shall be paid to
such Person or otherwise disposed of as herein provided;
(ii) give the Owner Trustee notice of any default by the
Trust of which a Responsible Officer of the Certificate Registrar has
actual knowledge in the making of any distribution required to be made
with respect to the Residual Certificates;
(iii) at any time during the continuance of any such
default, upon the written request of the Owner Trustee forthwith pay to
the Owner Trustee on behalf of the Trust all sums so held in Trust by
such Certificate Paying Agent;
(iv) immediately resign as Certificate Paying Agent and
forthwith pay to the Owner Trustee on behalf of the Trust all sums held
by it in trust for the distribution of Residual Certificates if at any
time it ceases to meet the standards under this Section 3.09 required
to be met by the Certificate Paying Agent at the time of its
appointment; and
(v) not institute bankruptcy proceedings against the
Trust in connection with this Agreement.
(b) In the event that the Certificate Registrar shall no longer be
the Certificate Paying Agent hereunder, the Owner Trustee, with the consent of
the Depositor, shall appoint a successor to act as Certificate Paying Agent
(which shall be a bank or trust company). The Owner Trustee shall cause such
successor Certificate Paying Agent or any additional Certificate Paying Agent
appointed by the Owner Trustee to execute and deliver to the Owner Trustee an
instrument in which such successor Certificate Paying Agent or additional
Certificate Paying Agent shall agree with the Owner Trustee that as Certificate
Paying Agent, such successor Certificate Paying Agent or additional Certificate
Paying Agent will hold all sums, if any, held by it for payment in trust for the
benefit of the Holders entitled thereto until such sums shall be paid to such
Holder. The Certificate Paying Agent shall return all unclaimed funds to the
Owner Trustee, and upon removal of a Certificate Paying Agent, such Certificate
Paying Agent shall also return all funds in its possession to the Owner Trustee.
The provisions of Sections 5.03, 5.04, 6.01, 6.05, 6.07, 6.08, 7.01 and 7.02
shall apply to the Certificate Registrar also in its role as Certificate Paying
Agent for so long as the Certificate Registrar shall act as Certificate Paying
Agent and, to the extent applicable, to any other Certificate Paying Agent
appointed hereunder. Any reference in this Agreement to the Certificate Paying
Agent shall include any co-paying agent unless the context requires otherwise.
Notwithstanding anything herein to the contrary, the Certificate Registrar and
the Certificate Paying Agent shall be the same entity as the Indenture Trustee
under the Indenture and the Sale and Servicing Agreement unless an Event of
Default has occurred and is continuing and the Indenture Trustee determines or
is advised that a conflict of interest exists or will exist if the Indenture
Trustee continues to act as Certificate Registrar and Certificate Paying Agent.
In such event, the Certificate Registrar and the Certificate Paying Agent shall
resign and the Owner Trustee, with the consent of the Depositor, shall appoint a
successor Certificate Registrar in accordance with the terms hererof.
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Section 3.10. INITIAL BENEFICIARY. Upon the formation of the Trust by
the contribution by the Depositor pursuant to Section 2.05 and until the
issuance of the Residual Certificates, the Depositor shall be the sole
beneficiary of the Trust.
Section 3.11. DISTRIBUTIONS ON RESIDUAL CERTIFICATES. (a) The Residual
Certificateholders will be entitled to distributions on each Payment Date, as
provided in this Agreement, the Sale and Servicing Agreement and the Indenture.
With respect to any Payment Date, any amounts remaining in the Payment Account
for distribution to the Residual Certificateholders pursuant to Section 5.03 of
the Sale and Servicing Agreement, to the extent such funds are received by the
Owner Trustee, shall be distributed by the Owner Trustee as follows:
(i) first, to the Holders of the Class G Certificates, as
set forth in Section 5.03 of the Sale and Servicing Agreement;
(ii) second, to the Owner Trustee, any unpaid and
unreimbursed Expenses due and owing to it pursuant to the Operative
Agreements (including Section 7.02 herein);
(iii) third, to the Holders of the Class C Certificates,
(a) the Monthly Interest Payable Amount and any Overcollateralization
Release Amount for such Payment Date and (b) on any Payment Date on
which the aggregate Note Balance of the Class A Notes, the Mezzanine
Notes and the Class B Notes has been reduced to zero, any remaining
amounts in reduction of the Certificate Principal Balance of the Class
C Certificates, until the Certificate Principal Balance thereof has
been reduced to zero; and
(iv) fourth, to the Holders of the Residual Certificates
(in respect of the Class R-1 Interest, the Class R-2 Interest, the
Class R-3 Interest or the Class R-4 Interest, as appropriate).
PROVIDED, THAT on the Payment Date on which the Redemption Price is distributed,
the portion, if any, of the Redemption Price equal to the Certificate Principal
Balance of the Class G Certificates shall be distributed pursuant to this
Section 3.11(a) to the Class G Certificateholders and the portion, if any, of
the Redemption Price equal to the Certificate Principal Balance of the Class C
Certificates shall be distributed pursuant to this Section 3.11(a) to the Class
C Certificateholders, as applicable.
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ARTICLE IV
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 4.01. CERTIFICATE ACCOUNT. All of the right, title and interest
of the Trust in all funds on deposit from time to time in the Certificate
Account and in all proceeds thereof shall be held for the benefit of the Holders
and such other persons entitled to payments therefrom. Except as otherwise
expressly provided herein or in the Sale and Servicing Agreement, the
Certificate Account shall be under the sole dominion and control of the Owner
Trustee for the benefit of the Certificateholders. The Certificate Account shall
be subject to and established and maintained in accordance with the applicable
provisions of the Sale and Servicing Agreement and the Indenture, including,
without limitation, the provisions of Section 5.03 of the Sale and Servicing
Agreement regarding distributions from the Certificate Account.
Section 4.02. APPLICATION OF TRUST FUNDS.
(a) On each Payment Date, the Owner Trustee shall direct the
Certificate Paying Agent to distribute to the Holders, from amounts on deposit
in the Certificate Account, the distributions as provided in Section 5.03 of the
Sale and Servicing Agreement and Section 3.11 hereof with respect to such
Payment Date. The Owner Trustee hereby directs the Certificate Paying Agent to
distribute on each Payment Date to the Holders amounts on deposit in the
Certificate Account in accordance with Section 5.03 of the Sale and Servicing
Agreement and Section 3.11 hereof and the Certificate Paying Agent hereby
acknowledges such direction.
(b) All payments to be made under this Agreement by the
Certificate Paying Agent shall be made only from the income and proceeds,
including Net Proceeds from the Notes, of the Trust Estate and only to the
extent that the Certificate Paying Agent has received such income or proceeds.
The Bank shall not be liable to any Holder, the Indenture Trustee or the
Certificate Registrar for any amounts payable pursuant to this Section 4.02
except to the extent that non-payment is due to the Owner Trustee's acts or
omissions amounting to willful misconduct or gross negligence.
(c) Distributions to the Holders shall be subordinated to the
creditors of the Trust, including, without limitation, the Noteholders.
Section 4.03. METHOD OF PAYMENT. Subject to Section 8.01(c),
distributions required to be made to the Holders on any Payment Date as provided
in Section 4.02 shall be made to the Person who was the Holder on the preceding
Record Date either by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate facilities
therefor, if the Holder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Payment Date or, if not, by check mailed to such Holder at the address of such
Holder appearing in the Certificate Register.
Section 4.04. SEGREGATION OF MONEYS; NO INTEREST. Moneys received by or
on behalf of the Owner Trustee hereunder and deposited into the Certificate
Account will be segregated except to the extent required otherwise by law or the
provisions of the Sale and Servicing
15
Agreement. The Owner Trustee shall not be liable for payment of any interest in
respect of such moneys.
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ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE;
ACTION BY CERTIFICATEHOLDERS
Section 5.01. GENERAL AUTHORITY.
The Owner Trustee is authorized and directed to execute and deliver the
Notes, the Residual Certificates and the other Operative Agreements to which it
is to be a party and each certificate or other document attached as an exhibit
to or contemplated by the Operative Agreements to which the Trust is to be a
party and any amendment or other agreement or instrument described herein, as
evidenced conclusively by the Owner Trustee's execution thereof, and, on behalf
of the Trust, to direct the Owner Trustee to authenticate the Notes. In addition
to the foregoing, the Owner Trustee is authorized, but shall not be obligated,
to take all actions required of the Trust pursuant to the Operative Agreements.
Section 5.02. GENERAL DUTIES.
(a) It shall be the duty of the Owner Trustee to discharge (or
cause to be discharged) all of its responsibilities pursuant to the terms of
this Agreement and the other Operative Agreements to which the Trust is a party
and to administer the Trust in the interest of the Certificateholders subject to
the Operative Agreements and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the
Operative Agreements to the extent the Administrator has agreed in the
Administration Agreement, the Sale and Servicing Agreement or this Agreement,
respectively, to perform any act or to discharge any duty of the Owner Trustee
or the Trust hereunder or under any Operative Agreement, and the Owner Trustee
shall not be held liable for the default or failure of the Administrator to
carry out its obligations under the Administration Agreement, this Agreement or
the Sale and Servicing Agreement, respectively; and
(b) It shall be the duty of the Administrator under the
Administration Agreement to obtain and preserve the Trust's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Collateral and each other instrument and agreement included in the
Trust Estate. It shall be the duty of the Owner Trustee to cooperate with the
Administrator with respect to such matters.
Section 5.03. ACTION UPON INSTRUCTION.
(a) Subject to Article V and in accordance with the terms of the
Operative Agreements, a Holder may by written instruction direct the Owner
Trustee in the management of the Trust, but only to the extent consistent with
the limited purpose of the Trust. Such direction may be exercised at any time by
written instruction of a Holder pursuant to this Article V.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Operative Agreement if the
Owner Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result
17
in liability on the part of the Owner Trustee or is contrary to the terms hereof
or of any Operative Agreement or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Operative Agreement, or in the event that the Owner
Trustee is unsure as to the application of any provision of this Agreement or
any other Operative Agreement or any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Agreement permits any determination by the
Owner Trustee or is silent or is incomplete as to the course of action that the
Owner Trustee is required to take with respect to a particular set of facts, the
Owner Trustee may promptly give notice (in such form as shall be appropriate
under the circumstances) to the Holders requesting instruction as to the course
of action to be adopted, and to the extent the Owner Trustee acts in good faith
in accordance with any written instruction of the Holders, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent with
this Agreement or any other Operative Agreement, as it shall deem to be in the
best interests of the Holders, and the Owner Trustee shall have no liability to
any Person for such action or inaction.
Section 5.04. NO DUTIES EXCEPT AS SPECIFIED UNDER SPECIFIED DOCUMENTS
OR IN INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, and (ii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 5.03; and no
implied duties or obligations shall be read into this Agreement or any Operative
Agreement against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to the Trust or to prepare or file any
Securities and Exchange Commission filing for the Trust or to record this
Agreement or any Operative Agreement or to prepare or file any tax return for
the Trust. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Trust Estate that result from actions by, or claims against
the Bank that are not related to the ownership or the administration of the
Trust Estate.
Section 5.05. RESTRICTIONS.
(a) The Owner Trustee shall not take any action that is
inconsistent with the purposes of the Trust set forth in Section 2.03. The
Holders shall not direct the Owner Trustee to take action that would violate the
provisions of this Section 5.05.
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(b) The Owner Trustee shall not, except as provided herein, convey
or transfer any of the Trust's properties or assets, including those included in
the Trust Estate, to any person unless such conveyance or transfer shall not
violate the provisions of the Indenture.
Section 5.06. PRIOR NOTICE TO THE HOLDERS WITH RESPECT TO CERTAIN
MATTERS.
(a) With respect to the following matters, the Owner Trustee shall
not take action unless at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Holders in writing of the proposed action
and the Holders shall have notified the Owner Trustee in writing prior to the
30th day after such notice is given that such Holder has consented to such
action or provided alternative direction:
(i) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of
cash distributions due and owing under the Collateral) and the
compromise of any action, claim or lawsuit brought by or against the
Trust (except with respect to the aforementioned claims or lawsuits for
collection of cash distributions due and owing under the Collateral);
(ii) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Delaware Trust Statute);
(iii) the amendment of the Indenture by a supplemental
indenture or of this Agreement or any other Operative Agreement in
circumstances where the consent of any Noteholder is required;
(iv) the amendment or other change of the Indenture by a
supplemental indenture or of this Agreement or any other Operative
Agreement in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interests
of the Holders;
(v) the amendment of the Sale and Servicing Agreement in
circumstances where the consent of any Noteholder is required;
(vi) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or add any provision that would
not materially and adversely affect the interests of the Holders;
(vii) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee or pursuant
to this Agreement of a successor Certificate Registrar or Certificate
Paying Agent or the consent to the assignment by the Note Registrar,
Paying Agent, Indenture Trustee, Certificate Registrar or Certificate
Paying Agent of its obligations under the Indenture or this Agreement,
as applicable;
(viii) the consent to the calling or waiver of any default
of any Operative Agreement;
19
(ix) the consent to the assignment by the Indenture
Trustee of its obligations under any Operative Agreement;
(x) except as provided in Article VIII hereof, dissolve,
terminate or liquidate the Trust in whole or in part;
(xi) the merger, conversion or consolidation of the Trust
with or into any other entity, or conveyance or transfer of all or
substantially all of the Trust's assets to any other entity;
(xii) the incurrence, assumption or guaranty by the Trust
of any indebtedness other than as set forth in this Agreement;
(xiii) the taking of any action which conflicts with any
Operative Agreement or would make it impossible to carry on the
ordinary business of the Trust or change the Trust's purpose and powers
set forth in this Agreement;
(xiv) the confession of a judgment against the Trust;
(xv) the possession of the Trust assets, or assignment of
the Trust's right to property, for other than a Trust purpose; or
(xvi) the lending of funds by the Trust to any entity.
(b) In addition, the Trust shall (i) hold itself out as a separate
entity from each Certificateholder and not conduct any business in the name of
any Certificateholder, (ii) correct any known misunderstanding regarding its
separate identity, (iii) maintain adequate capital in light of its contemplated
business operations, (iv) correct any known misunderstanding regarding its
separate identity, (v) maintain appropriate minutes or other records of all
appropriate actions and shall maintain its office and bank accounts separate
from any other Person or entity, (vi) conduct its own business in its own name
and use stationery, invoices, checks or other business forms under its own name
and not that of any other Person, (vii) observe all formalities required under
the Delaware Trust Statute and other formalities required by the Transaction
Documents, (viii) conduct business with the Certificateholders or any Affiliate
thereof on an arm's-length basis, (ix) maintain its financial and accounting
books and records separate from those of any other Person or entity. In
addition, the Trust shall not (i) guarantee or become obligated for the debts of
any other person or entity, (ii) acquire the obligations or securities of its
Certificateholders or its Affiliates, (iii) identify itself as a division of any
other Person or entity, (iv) commingle its assets with those of any other Person
or entity, (v) engage in any business activity in which it is not currently
engaged other than as contemplated by the Operative Agreements and related
documentation, (vi) form, or cause to be formed, any subsidiaries, (vii) own or
acquire any asset other than as contemplated by the Operative Agreements and
related documentation, (viii) acquire the obligations or securities of its
Affiliates or the Seller, (ix) hold out its credit as being available to satisfy
the obligations of any other person or entity, (x) identify itself as a division
of any other person or entity, and (xi) make loans to any other person or entity
or buy or hold evidence of indebtedness issued by any other person or entity.
20
Other than as expressly set forth herein, the Trust shall (i) pay its
indebtedness, operating expenses and liabilities from its own funds, and neither
incur any indebtedness nor pay the indebtedness, operating expenses and
liabilities of any other entity and (ii) not engage in any dissolution,
liquidation, consolidation, merger or sale of assets. Other than as contemplated
by the Operative Agreements and related documentation, the Trust shall (i) not
pledge its assets for the benefit of any other person or entity and (ii) not
follow the directions or instructions of the Depositor.
For accounting purposes, the Trust shall be treated as an entity
separate and distinct from the Holders. The pricing and other material terms of
all transactions and agreements to which the Trust is a party shall be
intrinsically fair to all parties thereto. This Agreement is and shall be the
only agreement among the parties thereto with respect to the creation, operation
and termination of the Trust.
The Owner Trustee shall not have the power, except upon the written
direction of the Holders, and to the extent otherwise consistent with the
Operative Agreements, to (i) remove or replace the Indenture Trustee, or (ii)
institute a bankruptcy against the Trust. So long as the Indenture remains in
effect, to the extent permitted by applicable law, the Holders shall have no
power to commence, and shall not commence, any bankruptcy with respect to the
Trust or direct the Owner Trustee to commence any bankruptcy with respect to the
Trust.
(c) The Owner Trustee shall not have the power, except upon the
written direction of the Holders, to (i) remove the Administrator under the
Administration Agreement pursuant to Section 9 thereof, (ii) appoint a successor
Administrator pursuant to Section 9 of the Administration Agreement, or (iii)
except as expressly provided in the Indenture, to sell the Collateral after the
termination of the Indenture. The Owner Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed and
authorized by the Holders.
Section 5.07. ACTION BY THE HOLDERS WITH RESPECT TO BANKRUPTCY.
The Owner Trustee shall not have the power to commence or consent to a
bankruptcy relating to the Trust without the prior approval of the Holders and
the delivery to the Owner Trustee by the Holders of a certificate certifying
that the Holders reasonably believe that the Trust is insolvent. This paragraph
shall survive for one year and one day following termination of this Agreement.
So long as the Indenture remains in effect, the Holders shall not have the power
to institute, and shall not institute, any bankruptcy with respect to the Trust
or direct the Owner Trustee to take such action.
Section 5.08. RESTRICTIONS ON THE HOLDERS' POWER.
The Holders shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of the
Operative Agreements or would be contrary to Section 2.03 nor shall the Owner
Trustee be obligated to follow any such direction, if given.
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ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01. ACCEPTANCE OF TRUST AND DUTIES. The Owner Trustee accepts
the trusts hereby created and agrees to perform the same but only upon the terms
of this Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Trust Estate upon the terms of this
Agreement. The Bank shall not be answerable or accountable hereunder or under
any other Operative Agreements under any circumstances, except (i) for its own
willful misconduct, gross negligence or bad faith, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.04, (iii)
for liabilities arising from the failure by the Bank to perform obligations
expressly undertaken by it in the last sentence of Section 5.04, or (iv) for
taxes, fees or other charges based on or measured by any fees, commissions or
compensation received by the Bank in connection with any of the transactions
contemplated by this Agreement, any other Operative Agreements or the Notes. In
particular, but not by way of limitation:
(i) The Bank shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner
Trustee;
(ii) The Bank shall not be liable with respect to any
action taken or omitted to be taken by the Owner Trustee in accordance
with the instructions of the Holders;
(iii) No provision of this Agreement shall require the Bank
to expend or risk funds or otherwise incur any financial liability in
the performance of any of the Owner Trustee's rights or powers
hereunder or under any other Operative Agreements if the Bank shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(iv) Under no circumstance shall the Bank be liable for
indebtedness evidenced by or arising under any of the Operative
Agreements, including the principal of and interest on the Notes;
(v) The Bank shall not be liable with respect to any
action taken or omitted to be taken by the Depositor, the
Administrator, the Servicer, the Indenture Trustee, any Officer or the
Certificate Paying Agent under this Agreement or any other Operative
Agreement or otherwise and the Bank shall not be obligated to perform
or monitor the performance of any obligations or duties under this
Agreement or the other Operative Agreements which are to be performed
by the Certificate Paying Agent under this Agreement, the Administrator
under the Administration Agreement, the Indenture Trustee under the
Indenture or by any other Person under any of the Operative Agreements;
and
(vi) The Bank shall not be responsible for or in respect
of the recitals herein, the validity or sufficiency of this Agreement
or for the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any of the
Trust Estate or for or in respect of the validity or sufficiency of the
Operative
22
Agreements, other than the certificate of authentication on the
Residual Certificates, and the Bank shall in no event assume or incur
any liability, duty or obligation to any Noteholder, the Depositor or
to the Holders, other than as expressly provided for herein.
Section 6.02. FURNISHING OF DOCUMENTS.
The Owner Trustee will furnish to the Certificate Registrar (for
distribution to the Holders), promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee hereunder or under the Operative Agreements unless the Certificate
Registrar shall have already received the same.
Section 6.03. BOOKS AND RECORDS. The Owner Trustee shall keep or cause
to be kept proper books of record and account of all the transactions under this
Agreement, including a record of the name and address of the Holders. The Owner
Trustee shall be deemed to have complied with this Section 6.03 by the
appointment of the Certificate Registrar and the Certificate Paying Agent to
perform such duties hereunder.
Section 6.04. REPRESENTATIONS AND WARRANTIES.
(a) The Bank represents and warrants to the Depositor, for the
benefit of the Holders, as follows:
(i) the Bank is a banking corporation duly formed and
validly existing and in good standing under the laws of the State of
Delaware and has the power and authority to execute, deliver and
perform its obligations under this Agreement and (assuming due
authorization, execution and delivery of this Agreement by the other
parties hereto), has the power and authority as Owner Trustee to
execute and deliver the Operative Agreements and to perform its
obligations thereunder and, assuming the due authorization, execution
and delivery hereof by the other parties hereto, this Agreement
constitutes a legal, valid and binding obligation of the Bank or the
Owner Trustee, as the case may be, enforceable against the Bank or the
Owner Trustee, as the case may be, in accordance with its terms, except
that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(ii) the Bank has no reason to believe that anyone
authorized to act on its behalf has offered any interest in and to the
Trust for sale to, or solicited any offer to acquire any of the same
from, anyone;
(iii) the execution, delivery and performance by the Bank,
either in its individual capacity or as Owner Trustee, as the case may
be, of the Operative Agreements will not result in any violation of, or
be in any conflict with, or constitute a default under any of the
provisions of any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, lease, note or bond purchase agreement,
license,
23
judgment, order or other agreement to which the Bank is a party or by
which it or any of its properties is bound;
(iv) the execution and delivery by the Bank of this
Agreement, and the performance of its duties as Owner Trustee
hereunder, do not require the consent or approval of, the giving of
notice to, or the registration with, or the taking of any other action
with respect to, any governmental authority or agency of the State of
Delaware (except as may be required by the Delaware Trust Statute); and
(v) there are no pending or, to the best of its
knowledge, threatened actions or proceedings against the Bank before
any court, administrative agency or tribunal which, if determined
adversely to it, would materially and adversely affect its ability,
either in its individual capacity or as Owner Trustee, as the case may
be, to perform its obligations under this Agreement or the Operative
Agreements.
(b) Deutsche Bank National Trust Company, as Certificate
Registrar, hereby represents and warrants to the Depositor, for the benefit of
the Holders, that:
(i) it is a national banking association duly organized
and validly existing in good standing under the laws of the United
States, and has the power and authority to execute, deliver and perform
its obligations under this Agreement and, assuming the due
authorization, execution and delivery hereof by the other parties
hereto, this Agreement constitutes a legal, valid and binding
obligation of the Certificate Registrar, enforceable against the
Certificate Registrar in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought; and
(ii) it has taken all action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will
be executed and delivered by one of its officers who is duly authorized
to execute and deliver this Agreement on its behalf.
Section 6.05. RELIANCE; ADVICE OF COUNSEL.
(a) Except as provided in Section 6.01, the Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any corporate
or partnership entity as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the manner of ascertainment of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president (or the general
partner, in the case of a partnership) and by the treasurer or any assistant
treasurer or the secretary or any assistant secretary of the relevant party, as
to such fact or matter, and such
24
certificate shall constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In its exercise or administration of the trusts and powers
hereunder, including its obligations under Section 5.02(b), and in the
performance of its duties and obligations under this Agreement or the other
Operative Agreements, the Owner Trustee may employ agents and attorneys and
enter into agreements (including the Administration Agreement) with any of them,
and the Owner Trustee shall not be answerable for the default or misconduct of
any such agents or attorneys if such agents or attorneys shall have been
selected by the Owner Trustee with reasonable care. If, and to the extent, the
Depositor shall have failed to reimburse the Owner Trustee for all reasonable
expenses incurred pursuant to this Section 6.05(b), as provided in Section 7.01,
the Owner Trustee may seek reimbursement therefor from the Trust Estate.
(c) In the administration of the trusts and performance of its
duties hereunder, the Owner Trustee may consult with counsel, accountants and
other skilled Persons to be selected and employed by it, and the Owner Trustee
shall not be liable for anything done, suffered or omitted in good faith by it
in accordance with the reasonable advice or opinion of any such counsel,
accountants or other skilled Persons. If, and to the extent, the Depositor shall
have failed to reimburse the Owner Trustee for all reasonable expenses incurred
pursuant to this Section 6.05(c), as provided in Section 7.01, the Owner Trustee
may seek reimbursement therefor from the Trust Estate.
Section 6.06. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VI, in accepting the trusts hereby created the Owner Trustee acts
solely as trustee hereunder and not in its individual capacity, and all persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by the Operative Agreements shall look only to the Trust Estate for
payment or satisfaction thereof.
Section 6.07. OWNER TRUSTEE NOT LIABLE FOR RESIDUAL CERTIFICATES OR
COLLATERAL. The recitals contained herein and in the Residual Certificates
(other than the signature and countersignature of the Owner Trustee on the
Residual Certificates) shall be taken as the statements of the Depositor, and
the Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no representations as to the validity or sufficiency of this
Agreement, of any Operative Agreement or of the Residual Certificates (other
than the signature and countersignature of the Owner Trustee on the Residual
Certificates) or the Notes, or of any Collateral or related documents. The Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Collateral, or the
perfection and priority of any security interest created by any Collateral or
the maintenance of any such perfection and priority, or for or with respect to
the sufficiency of the Trust Estate or its ability to generate the payments to
be distributed to Certificateholders under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, condition and
ownership of any Collateral; the existence and enforceability of any insurance
thereon; the existence and contents of any Collateral on any computer or other
record thereof; the validity of the assignment of any Collateral to the Trust or
of any intervening assignment; the completeness of any Collateral; the
performance or enforcement of any Collateral; the compliance by the Depositor
with any warranty or representation made under any Operative Agreements or in
any
25
related document or the accuracy of any such warranty or representation or any
action of the Administrator or the Indenture Trustee taken in the name of the
Owner Trustee.
Section 6.08. OWNER TRUSTEE MAY OWN RESIDUAL CERTIFICATES AND NOTES.
The Owner Trustee in its individual capacity may become a Holder (provided it is
an eligible corporation) or the owner or pledgee of Notes and may deal with the
Depositor, the Administrator and the Indenture Trustee in banking transactions
with the same rights as it would have if it were not Owner Trustee.
Section 6.09. LICENSES. The Depositor shall cause the Trust to use its
best efforts to obtain and maintain the effectiveness of any licenses required
in connection with this Agreement and the other Operative Agreements and the
transactions contemplated hereby and thereby until such time as the Trust shall
terminate in accordance with the terms hereof. It shall be the duty of the Owner
Trustee to cooperate with the Depositor with respect to such matters.
Section 6.10. DOING BUSINESS IN OTHER JURISDICTIONS. Notwithstanding
anything contained herein to the contrary, neither the Bank nor the Owner
Trustee shall be required to take any action in any jurisdiction other than in
the State of Delaware if the taking of such action will (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state or
other governmental authority or agency of any jurisdiction other than the State
of Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivisions thereof in existence on
the date hereof other than the State of Delaware becoming payable by the Bank or
the Owner Trustee; or (iii) subject the Bank or the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes of
action arising from acts unrelated to the consummation of the transactions by
the Bank or the Owner Trustee, as the case may be, contemplated hereby. The
Owner Trustee shall be entitled to obtain advice of counsel (which advice shall
be an expense of the Trust) to determine whether any action required to be taken
pursuant to this Agreement results in the consequences described in clauses (i),
(ii) and (iii) of the preceding sentence. In the event that such counsel advises
the Owner Trustee that such action will result in such consequences, the Owner
Trustee will appoint a co-trustee pursuant to Section 9.05 hereof to proceed
with such action.
Section 6.11. XXXXXXXX-XXXXX ACT. Notwithstanding anything to the
contrary herein or in any other Operative Agreement, the Owner Trustee shall not
be required to execute, deliver or certify on behalf of the Issuer or any other
Person any filings, certificates, affidavits or other instruments in connection
with certifications required under the Xxxxxxxx-Xxxxx Act of 2002.
26
ARTICLE VII
INDEMNIFICATION AND COMPENSATION
Section 7.01. TRUST EXPENSES. The Depositor shall pay the
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee in connection therewith. The Depositor shall
also pay (or reimburse the Bank for) all reasonable expenses of the Owner
Trustee hereunder, including, without limitation, the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as the Owner Trustee may employ in connection with the exercise and performance
of its rights and duties under the Operative Agreements.
Section 7.02. INDEMNIFICATION. The Depositor and Greenwich Capital
Financial Products, Inc., jointly and severally, agree to assume liability for,
and indemnify the Bank and its successors, assigns, officers, directors, agents
and servants, against and from, any and all liabilities, obligations, losses,
damages, taxes, claims, actions, suits, costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may be imposed on, incurred by or asserted at
any time against the Bank (whether or not indemnified against by other parties)
in any way relating to or arising out of this Agreement, any Operative
Agreement, the Collateral, the administration of the Trust Estate or the action
or inaction of the Owner Trustee hereunder, except only that Depositor and
Greenwich Capital Financial Products, Inc. shall not be required to indemnify
the Bank for Expenses arising or resulting from any of the matters described in
the third sentence of Section 6.01. The indemnities contained in this Section
7.02 shall survive the resignation or termination of the Owner Trustee or the
termination of this Agreement. In the event of any claim, action or proceeding
for which indemnity will be sought pursuant to this Section, the Owner Trustee's
choice of legal counsel shall be subject to the approval of the Depositor, which
approval shall not be unreasonably withheld.
Section 7.03. COMPENSATION. The Bank shall receive as compensation for
its services hereunder such fees as are set forth in the Fee Letter Agreement
between the Bank and the Depositor (or an Affiliate of the Depositor) attached
hereto as Exhibit G.
Section 7.04. LIEN ON TRUST ESTATE. The Bank shall have a lien on the
Trust Estate for any compensation or indemnity due hereunder, such lien to be
subject only to prior liens of the Indenture. The Bank shall not bring any
proceedings to foreclose on such lien if and to the extent the Trust Estate is
subject to the lien of the Indenture. Any amount paid to the Owner Trustee
pursuant to this Article VII shall be deemed not to be part of the Trust Estate
immediately after such payment.
27
ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01. TERMINATION OF AGREEMENT.
(a) This Agreement (other than Article VII) shall terminate and
the trust created hereby shall dissolve and terminate and the Trust Estate
shall, subject to the Indenture and Sections 4.01 and 7.04 and Section 3808 of
the Delaware Trust Statute, be distributed to the Holders, and this Agreement
shall be of no further force or effect, upon the earlier of (i) the full payment
of principal and interest due on the Notes pursuant to the Indenture and the
Sale and Servicing Agreement and (ii) the sale or other final disposition by the
Indenture Trustee or the Owner Trustee, as the case may be, of all the Trust
Estate and the final distribution by the Indenture Trustee or the Owner Trustee,
as the case may be, of all moneys or other property or proceeds of the Trust
Estate in accordance with the terms of the Indenture, the Sale and Servicing
Agreement and Section 4.02. The bankruptcy, liquidation or dissolution of the
Holder shall not operate to terminate this Agreement, nor entitle such Holder's
legal representatives to claim an accounting or to take any action or proceeding
in any court for a partition or winding up of the Trust Estate, nor otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), neither the Depositor
nor the Holders shall be entitled to revoke or terminate the Trust established
hereunder.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which each Holder shall surrender its Residual Certificate to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Certificate Paying Agent by letter to the Holders and the
Rating Agencies mailed within five Business Days of receipt of notice of the
final payment on the Notes from the Indenture Trustee, stating (i) the Payment
Date upon or with respect to which final payment of the Residual Certificate
shall be made upon presentation and surrender of the Residual Certificate at the
office of the Certificate Paying Agent therein designated, (ii) the amount of
any such final payment and (iii) that the Record Date otherwise applicable to
such Payment Date is not applicable, payments being made only upon presentation
and surrender of the Residual Certificate at the office of the Certificate
Paying Agent therein specified. The Certificate Paying Agent shall give such
notice to the Owner Trustee and the Certificate Registrar at the time such
notice is given to the Holders. Upon presentation and surrender of the Residual
Certificate, the Certificate Paying Agent shall cause to be distributed to the
Holders amounts distributable on such Payment Date pursuant to Section 5.03 of
the Sale and Servicing Agreement.
(d) Upon the winding up of the Trust and its termination and
notice from the Certificate Paying Agent, the Owner Trustee shall cause the
Certificate of Trust to be cancelled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section 3810 of
the Delaware Trust Statute.
28
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Delaware Trust Statute; authorized to exercise corporate powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or state authorities; and having (or
having a parent which has) a short-term debt rating of at least "A-1" or the
equivalent by, or which is otherwise acceptable to, the Rating Agencies. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Owner Trustee shall resign immediately in the manner and with
the effect specified in Section 9.02.
Section 9.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trust hereby created
by giving 30 days' prior written notice thereof to the Depositor and the
Indenture Trustee. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee. If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 9.01 and shall fail to
resign after written request therefor by the Depositor, or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor may remove the Owner Trustee. If
the Depositor shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Depositor shall promptly appoint a successor
Owner Trustee by written instrument in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee and payment of all fees owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Certificate Registrar shall provide notice of
such resignation or removal of the Owner Trustee to the Rating Agencies.
Section 9.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Certificate Registrar and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Owner Trustee shall become effective and such
successor Owner Trustee without any further act, deed or
29
conveyance, shall become fully vested with all the rights, powers, duties, and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Certificate Registrar and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties, and xxxxxxxxxxx.Xx successor Owner Trustee
shall accept appointment as provided in this Section unless at the time of such
acceptance such successor Owner Trustee shall be eligible pursuant to Section
9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Depositor shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the
Depositor.
Section 9.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided,
that such Person shall be eligible pursuant to Section 9.01, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 9.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any Collateral may at the time be located, and for the
purpose of performing certain duties and obligations of the Owner Trustee with
respect to the Trust and the Certificates under the Sale and Servicing
Agreement, the Owner Trustee shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Owner Trustee may consider necessary or
desirable. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 9.01 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 9.03. The Owner Trustee hereby
appoints the Deutsche Bank National Trust Company as Certificate Registrar for
the purpose of establishing and maintaining the Certificate Account and making
the distributions therefrom to the Persons entitled thereto pursuant to Section
5.03 of the Sale and Servicing Agreement. The Owner Trustee and the Certificate
Registrar each agree that upon the occurrence and continuation of an Event of
Default and a determination by the Indenture Trustee that a conflict of interest
exists or will exist if the Indenture Trustee continues to act as the
Certificate Registrar, the Certificate
30
Registrar shall resign and the Owner Trustee shall appoint a successor
Certificate Registrar in accordance with this Agreement.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provision and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties,
and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Owner Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to the separate trustees and co-trustees, as if
given to each of them. Every instrument appointing any separate trustee or
co-trustee, other than this Agreement, shall refer to this Agreement and to the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of appointment, shall be vested with the estates specified in its
instrument of appointment, either jointly with the Owner Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Owner Trustee.
Each such instrument shall be filed with the Owner Trustee and a copy thereof
given to the Certificate Registrar.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its Agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
31
ARTICLE X
MISCELLANEOUS
Section 10.01. SUPPLEMENTS AND AMENDMENTS. This Agreement may be
amended by the Depositor, the Certificate Registrar and the Owner Trustee, with
the consent of the Holders of the Residual Certificates and with prior written
notice to the Rating Agencies, but without the consent of any of the Noteholders
or the Indenture Trustee, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying in any manner the rights of the Noteholders or the Holders or to
add, delete or amend any provisions to the extent necessary or desirable to
comply with any requirements imposed by the Code and the REMIC Provisions;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Noteholder or any Holder of a Residual Certificate or adversely affect the tax
status of the REMICs created by the Indenture. An amendment shall not be deemed
to adversely affect in any material respect the interests of any Noteholder or
any Holder and no opinion referred to in the preceding proviso shall be required
to be delivered if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to each Class
of Notes. Notwithstanding the preceding sentence, an opinion shall be required
with respect to tax matters as set forth in this paragraph.
This Agreement may also be amended from time to time by the Depositor,
the Certificate Registrar and the Owner Trustee, with the prior written consent
of the Rating Agencies and with the prior written consent of the Indenture
Trustee, the Holders (as defined in the Indenture) of Notes evidencing more than
662/3% of the Outstanding Balance of the Notes, and the consent of the Holders,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of any Holder; PROVIDED, HOWEVER, that no such amendment
shall, as evidenced by an Opinion of Counsel, adversely affect the tax status of
the Trust; and PROVIDED, FURTHER, that no such amendment shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Collateral or distributions that shall be
required to be made for the benefit of the Noteholders or the Holders or (b)
reduce the aforesaid percentage of the Outstanding Balance of the Notes required
to consent to or to waive the requirement for the Holders to consent to any such
amendment, in either case of clause (a) or (b) without the consent of the
holders of all the outstanding Notes and the Holders.
Notwithstanding the foregoing, no provision of Sections 2.03 or 5.06
hereof may be amended in any manner unless (i) 100% of the Outstanding Balance
of the Noteholders have consented in writing thereto, (ii) the Rating Agencies
have consent in writing thereto or (iii) the Notes have been paid in full and
the Indenture has been discharged.
Promptly after the execution of any such amendment or consent, the
Certificate Registrar shall furnish written notification of the substance of
such amendment or consent to the Holders, the Indenture Trustee and the Rating
Agencies.
32
It shall not be necessary for the consent of the Holders, the
Noteholders or the Indenture Trustee pursuant to this Section 10.01 to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of the Holders provided for in
this Agreement or in any other Operative Agreement) and of evidencing the
authorization of the execution thereof by the Holders shall be subject to such
reasonable requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee and the Certificate Registrar shall be
entitled to receive and rely upon an Opinion of Counsel, at the expense of the
Trust, stating that the execution of such amendment is authorized or permitted
by this Agreement. Neither the Owner Trustee nor the Certificate Registrar shall
be obligated to enter into any such amendment which affects the Owner Trustee's
or Certificate Registrar's own rights, duties or immunities under this Agreement
or otherwise.
Section 10.02. NO LEGAL TITLE TO TRUST ESTATE IN HOLDERS. The Holders
shall not have legal title to any part of the Trust Estate and shall only be
entitled to receive distributions with respect to its undivided beneficial
interest therein pursuant to Section 4.02 once all amounts then owing with
respect to the Notes have been paid in accordance with the Indenture. No
transfer, by operation of law of any right, title and interest of the Holders in
and to its undivided beneficial interest in the Trust Estate or hereunder shall
operate to terminate this Agreement or the trusts hereunder or entitle any
successor transferee to an accounting or to the transfer to it of legal title to
any part of the Trust Estate.
Section 10.03. PLEDGE OF COLLATERAL BY OWNER TRUSTEE IS BINDING. The
pledge of the Collateral to the Indenture Trustee by the Trust made under the
Indenture and pursuant to the terms of this Agreement shall bind the Holders and
shall be effective to transfer or convey the rights of the Trust and the Holders
in and to such Collateral to the extent set forth in the Indenture. No purchaser
or other grantee shall be required to inquire as to the authorization,
necessity, expediency or regularity of such pledge or as to the application of
any proceeds with respect thereto by the Owner Trustee.
Section 10.04. LIMITATIONS ON RIGHTS OF OTHERS. Nothing in this
Agreement, whether express or implied (except for Section 7.04), shall be
construed to give to any Person other than the Owner Trustee and the Holders any
legal or equitable right in the Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
Section 10.05. NOTICES. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and delivered by
hand, by courier or mailed by certified mail, postage prepaid, (a) if to the
Owner Trustee or the Trust, addressed to it at the Owner Trustee's Corporate
Trust Office or to such other address as the Owner Trustee may have set forth in
a written notice; (b) if to the Certificate Registrar, addressed to it at the
Indenture Trustee's Corporate Trust Office or to such other address as the Owner
Trustee may have set forth in a written notice and (c) if to the Depositor,
Financial Asset Securities Corp., 600
00
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Legal or to such other
address as the Owner Trustee may have set forth in a written notice. Whenever
any notice in writing is required to be given by the Owner Trustee or the
Certificate Registrar, such notice shall be deemed given and such requirement
satisfied if such notice is mailed by certified mail, postage prepaid, addressed
as provided above.
Section 10.06. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.07. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.08. SUCCESSORS AND ASSIGNS. All representations, warranties,
covenants and agreements contained herein shall be binding upon, and inure to
the benefit of, the Owner Trustee and its successors and assigns and the
Depositor and the Holders and its respective successors, all as herein provided.
Any request, notice, direction, consent, waiver or other instrument or action by
the Holders shall bind the successors of such Holder.
Section 10.09. HEADINGS. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 10.10. GOVERNING LAW. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 10.11. NO PETITION.
(a) The Owner Trustee and the Certificate Registrar, by entering
into this Agreement, the Holders, by accepting a Residual Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Residual Certificates, the Notes, this Agreement or any of the other
Operative Agreements.
(b) The Depositor shall not be liable for the default or
misconduct of the Certificate Registrar, the Owner Trustee, the Indenture
Trustee or the Certificate Paying Agent under any of the Operative Agreements or
otherwise and the Depositor shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Operative Agreements that
are
34
required to be performed by the Administrator under the Administration Agreement
or the Indenture Trustee under the Indenture.
Section 10.12. NO RECOURSE. The Holders by accepting a Residual
Certificate acknowledges that such Certificate represents a beneficial interest
in the Trust only and does not represent an interest in or an obligation of the
Depositor, the Certificate Registrar, the Owner Trustee, any co-trustee, the
Bank or any Affiliate thereof (other than the Trust) and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Residual Certificates or the other Operative
Agreements.
Section 10.13. APPOINTMENT OF OFFICERS. The Trust may have one or more
Officers who are hereby empowered to take and are responsible for performing all
ministerial duties on behalf of the Trust pursuant to this Agreement and the
other Operative Agreements, including, without limitation, the execution of
Officers' Certificates, the annual compliance report required under Section 3.09
of the Indenture, and any annual reports, documents and other reports which the
Trust is required to file with the Securities and Exchange Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. Each
of the Chairman of the Board, the Chief Executive Officer, the President, each
Senior Vice President and each Vice President of the Depositor is hereby
appointed as an Officer of the Trust. The Depositor shall promptly deliver to
the Owner Trustee and the Indenture Trustee a list of its officers who shall
become the Officers of the Trust pursuant to this Section 10.13.
Section 10.14. OFFICERS TO PROVIDE INFORMATION TO THE OWNER TRUSTEE. It
shall be the duty of each Officer to keep the Owner Trustee reasonably and
promptly informed as to material events relating to the Trust, including,
without limitation, all claims pending or threatened against the Trust, the
purchase and sale of any material portion of the Trust Estate and the execution
by such Officer on behalf of the Trust of any material agreements or
instruments.
35
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
FINANCIAL ASSET SECURITIES CORP., as Depositor
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but solely as
Certificate Registrar
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Associate
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Acknowledged and Agreed, solely
for purposes of Section 7.02:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
36
EXHIBIT A-1
FORM OF CLASS C CERTIFICATE
THIS CLASS C CERTIFICATE IS A REMIC REGULAR INTEREST CERTIFICATE. THIS
CLASS C CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE EXTENT
DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS CLASS C CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS C CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.03 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS C CERTIFICATE MAY BE MADE UNLESS THE
TRANSFEREE PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH CLASS C
CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE, TO THE EFFECT THAT SUCH TRANSFEREE IS NOT ACQUIRING THE CLASS C
CERTIFICATE FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")) OR TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR TO ANY SUBSTANTIALLY SIMILAR
LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, WHICH
REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE.
NO TRANSFER OF A CLASS C CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE IN ACCORDANCE WITH
SAID ACT AND LAWS. EXCEPT FOR THE INITIAL ISSUANCE OF THE CLASS C CERTIFICATE TO
THE INITIAL HOLDER, THE OWNER TRUSTEE SHALL REQUIRE THE TRANSFEREE TO EXECUTE AN
INVESTMENT LETTER ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE CERTIFYING TO THE OWNER TRUSTEE THE FACTS SURROUNDING SUCH
TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE.
THE HOLDER OF A CLASS C CERTIFICATE DESIRING TO EFFECT SUCH TRANSFER SHALL, AND
DOES HEREBY AGREE TO, INDEMNIFY THE DEPOSITOR, THE OWNER TRUSTEE AND THE
CERTIFICATE REGISTRAR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER IS
NOT SO EXEMPT OR IS NOT MADE IN ACCORDANCE WITH SUCH FEDERAL AND STATE LAWS.
A-1-1
THIS CLASS C CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1
CLASS C CERTIFICATE
Class: C Cut-Off Date: March 1, 2005
Percentage Interest: [________]% Issue Date: March 30, 2005
First Payment Date: April 25, 2005
Initial Certificate Principal Balance: $5,319,446.67
Initial Notional Amount: $1,063,971446.67
No. 1
[-----------------------]
Class C Certificateholder
A-1-2
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee
By:
------------------------
Authenticating Agent
A-1-3
The Trust was created pursuant to a Trust Agreement dated as of March
30, 2005 (the "TRUST AGREEMENT"), among Financial Asset Securities Corp. (the
"Depositor"), Wilmington Trust Company, as owner trustee (the "OWNER TRUSTEE")
and Deutsche Bank National Trust Company (the "Certificate Registrar"), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Trust Agreement.
This Class C Certificate is one of the duly authorized Class C
Certificates designated as "GreenPoint Mortgage Funding Trust 2005-HE1, Class C
Certificates" (herein called, together with the GreenPoint Mortgage Funding
Trust 2005-HE1, Class G Certificates, Class R Certificates and Class R-X
Certificates, the "RESIDUAL CERTIFICATES"). Also issued by the Trust under the
Indenture are seventeen Classes of Notes designated as the Class A-1A, Class
X-0X, Xxxxx X-0, Class A-3, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class B-1, Class B-2
and Class B-3 (collectively, the "NOTES"). These Class C Certificates are issued
under and are subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Class C Certificate by
virtue of the acceptance hereof assents and by which such holder is bound. The
property of the Trust includes a pool of certain adjustable rate home equity
revolving credit line loans (the "MORTGAGE LOANS") (including any Additional
Balances related thereto).
Under the Sale and Servicing Agreement dated as of March 30, 2005 among
the Issuer, the Depositor, the Servicer and the Indenture Trustee, there will be
distributed on the 25th day of each month or, if such 25th day is not a Business
Day, the next Business Day (the "PAYMENT DATE"), commencing on April 25, 2005,
to the Person in whose name this Class C Certificate is registered at the close
of business on the Business Day preceding such Payment Date (the "RECORD DATE")
such Class C Certificateholder's Percentage Interest in the amount to be
distributed to Class C Certificateholders on such Payment Date.
The holder of this Class C Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Class C Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable.
The holder of this Class C Certificate, by acceptance of this Class C
Certificate, specifically acknowledges that it has no right to or interest in
any monies at any time held in the Trust Estate prior to the release of such
monies pursuant to Section 5.03(b) of the Sale and Servicing Agreement, such
monies being held in trust for the benefit of the Noteholders. Notwithstanding
the foregoing, in the event that it is ever determined that the monies held in
the Trust Estate constitute a pledge of collateral, then the provisions of the
Sale and Servicing Agreement shall be considered to constitute a security
agreement and the holder of this Class C Certificate hereby grants to the
Indenture Trustee a first priority perfected security interest in such amounts.
In addition, each Class C Certificateholder, by acceptance of its Class C
Certificate, hereby appoints the Depositor as its agent to pledge a first
priority perfected security interest in the Trust Estate and agrees to execute
and deliver such instruments of conveyance, assignment, grant, confirmation,
etc., as well as any financing statements, in each case as the
A-1-4
shall be considered reasonably necessary in order to perfect the Indenture
Trustee's security interest in the Trust Estate.
Each Class C Certificateholder, by its acceptance of a Class C
Certificate, covenants and agrees that such Class C Certificateholder will not
at any time institute against the Trust, the Seller or the Depositor, or join in
any institution against the Trust, the Seller or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Class C
Certificates, the Trust Agreement or any of the Operative Agreements.
Distributions on this Class C Certificate will be made as provided in
the Sale and Servicing Agreement and the Indenture by the Owner Trustee by wire
transfer to the Class C Certificateholder of record in the Certificate Register
without the presentation or surrender of this Class C Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Class C Certificate
will be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class C
Certificate at the office or agency maintained for the purpose by the
Certificate Registrar.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Class C Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
The Class C Certificates do not represent an obligation of, or an
interest in, the Seller, the Depositor, the Servicer, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement, the Indenture or the Operative Agreements. In addition,
this Class C Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Mortgage Loans, as more specifically set forth herein, in the
Sale and Servicing Agreement and in the Indenture. A copy of each of the Sale
and Servicing Agreement and the Trust Agreement may be examined during normal
business hours at the principal office of the Depositor, and at such other
places, if any, designated by the Depositor, by any Class C Certificateholder
upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Administrator and the rights of the Class C Certificateholders
under the Trust Agreement at any time by the Depositor, the Certificate
Registrar and the Owner Trustee with the consent of the holders of the Notes and
the Class C Certificates evidencing not less than a majority of the outstanding
Notes and the Class C Certificates. Any such amendment shall be conclusive and
binding upon the holder of this Class C Certificate and on all future holders of
this Class C Certificate and of any Class C Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Class C Certificate. The Trust Agreement also permits
the amendment thereof, in certain limited circumstances, without the consent of
the holders of any of the Class C Certificates (other than the Initial Holder).
A-1-5
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Class C Certificate is registrable in
the Certificate Register upon surrender of this Class C Certificate for
registration of transfer at the offices or agencies of the Certificate Registrar
maintained by the Certificate Registrar, accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Class C Certificates in authorized
denominations evidencing the same aggregate interest in the Trust will be issued
to the designated transferee.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Class C Certificates are exchangeable for new Class C
Certificates in authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Class C Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar nor any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Class C
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement, the Indenture and the Sale and Servicing Agreement and the
disposition of all property held as part of the Trust. The Notes may be redeemed
pursuant to Section 8.02 of the Sale and Servicing Agreement, and if all of the
Notes are redeemed, such redemption may result in termination of the Trust which
may effect a transfer of the Class C Certificates; however, such right of
purchase is exercisable, subject to certain restrictions set forth in the Sale
and Servicing Agreement.
The recitals contained herein shall be taken as the statements of the
Depositor and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Class C Certificate or of any Mortgage Loan or related
document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Class C Certificate shall not entitle the holder hereof to any
benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
A-1-6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Residual Certificate to be duly
executed.
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By:
-------------------------------------------
Name:
Title:
Dated: __________, 200_
A-1-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Class C Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney to transfer said Class C Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
*
---------------------------------------
Signature Guaranteed:
*
---------------------------------------
------------------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Class C
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be determined
by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
X-0-0
XXXXXXX X-0
FORM OF CLASS G CERTIFICATE
THIS CLASS G CERTIFICATE IS A REMIC RESIDUAL INTEREST CERTIFICATE. THIS
CLASS G CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE EXTENT
DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS CLASS G CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CLASS G CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS G CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.03 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS G CERTIFICATE MAY BE MADE UNLESS THE
TRANSFEREE PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH CLASS G
CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE, TO THE EFFECT THAT SUCH TRANSFEREE IS NOT ACQUIRING THE CLASS G
CERTIFICATE FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")) OR TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR TO ANY SUBSTANTIALLY SIMILAR
LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, WHICH
REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE.
NO TRANSFER OF A CLASS G CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE IN ACCORDANCE WITH
SAID ACT AND LAWS. EXCEPT FOR THE INITIAL ISSUANCE OF THE CLASS G CERTIFICATE TO
THE INITIAL HOLDER, THE OWNER TRUSTEE SHALL REQUIRE THE TRANSFEREE TO EXECUTE AN
INVESTMENT LETTER ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE CERTIFYING TO THE OWNER TRUSTEE THE FACTS SURROUNDING SUCH
TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE.
THE HOLDER OF A CLASS G CERTIFICATE DESIRING TO EFFECT SUCH TRANSFER SHALL, AND
DOES HEREBY AGREE TO, INDEMNIFY THE DEPOSITOR, THE OWNER TRUSTEE AND THE
CERTIFICATE REGISTRAR AGAINST ANY LIABILITY THAT
A-2-1
MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT OR IS NOT MADE IN ACCORDANCE WITH
SUCH FEDERAL AND STATE LAWS.
NEITHER THIS CLASS G CERTIFICATE, NOR ANY BENEFICIAL INTEREST IN THIS
CLASS G CERTIFICATE, MAY BE TRANSFERRED, SOLD, PLEDGED, OR OTHERWISE DISPOSED OF
UNLESS PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER
TRUSTEE AND THE CERTIFICATE REGISTRAR AN AFFIDAVIT STATING (A) THAT THE PROPOSED
TRANSFEREE IS NOT A "DISQUALIFIED ORGANIZATION" WITHIN THE MEANING OF SECTION
860E(E)(5) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND IS
NOT PURCHASING THE CLASS G CERTIFICATE ON BEHALF OF A DISQUALIFIED ORGANIZATION
AND (B) THAT NO PURPOSE OF SUCH TRANSFER IS TO AVOID OR IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX.
NO TRANSFER OF THIS CLASS G CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS
CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER
U.S. LAW AND THE OTHER OPINIONS AND CERTIFICATES SPECIFIED IN SECTION 3.03 OF
THE AGREEMENT REFERRED TO HEREIN.
THIS CLASS G CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-2-2
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1
CLASS G CERTIFICATE
Class: G Cut-Off Date: March 1, 2005
Percentage Interest: [________]% Issue Date: March 30, 2005
First Payment Date: April 25, 2005
Initial Certificate Principal Balance: $0.00
No. 1
[-------------------------]
Class G Certificateholder
A-2-3
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee
By:
------------------------
Authenticating Agent
A-2-4
The Trust was created pursuant to a Trust Agreement dated as of March
30, 2005 (the "Trust Agreement"), among Financial Asset Securities Corp. (the
"Depositor"), Wilmington Trust Company, as owner trustee (the "OWNER TRUSTEE")
and Deutsche Bank National Trust Company (the "Certificate Registrar'), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Trust Agreement.
This Class G Certificate is one of the duly authorized Class G
Certificates designated as "GreenPoint Mortgage Funding Trust 2005-HE1, Class G
Certificates" (herein called, together with the GreenPoint Mortgage Funding
Trust 2005-HE1, Class C Certificates, Class R Certificates and Class R-X
Certificates, the "RESIDUAL CERTIFICATES"). Also issued by the Trust under the
Indenture are seventeen Classes of Notes designated as the Class A-1A, Class
X-0X, Xxxxx X-0, Class A-3, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class B-1, Class B-2
and Class B-3 (collectively, the "NOTES"). These Class G Certificates are issued
under and are subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Class G Certificate by
virtue of the acceptance hereof assents and by which such holder is bound. The
property of the Trust includes a pool of certain adjustable rate home equity
revolving credit line loans (the "MORTGAGE LOANS") (including any Additional
Balances related thereto).
Under the Sale and Servicing Agreement dated as of March 30, 2005 among
the Issuer, the Depositor, the Servicer and the Indenture Trustee, there will be
distributed on the 25th day of each month or, if such 25th day is not a Business
Day, the next Business Day (the "PAYMENT DATE"), commencing on April 25, 2005,
to the Person in whose name this Class G Certificate is registered at the close
of business on the Business Day preceding such Payment Date (the "RECORD DATE")
such Class G Certificateholder's Percentage Interest in the amount to be
distributed to Class G Certificateholders on such Payment Date.
The holder of this Class G Certificate, by acceptance of this Class G
Certificate, specifically acknowledges (i) that it has no right to or interest
in any monies at any time held in the Trust Estate prior to the release of such
monies pursuant to Section 5.03(b) of the Indenture, such monies being held in
trust for the benefit of the Noteholders and the Sale and Servicing Agreement,
and (ii) the obligations of the holder of the Class G Certificate in each
Servicing Agreement and the Sale and Servicing Agreement. Notwithstanding the
foregoing, in the event that it is ever determined that the monies held in the
Trust Estate constitute a pledge of collateral, then the provisions of the Sale
and Servicing Agreement shall be considered to constitute a security agreement
and the holder of this Class G Certificate hereby grants to the Indenture
Trustee a first priority perfected security interest in such amounts. In
addition, each Class G Certificateholder, by acceptance of its Class G
Certificate, hereby appoints the Depositor, as its agent to pledge a first
priority perfected security interest in the Trust Estate and agrees to execute
and deliver such instruments of conveyance, assignment, grant, confirmation,
etc., as well as any financing statements, in each case as shall be considered
reasonably necessary in order to perfect the Indenture Trustee's security
interest in the Trust Estate.
Each Class G Certificateholder, by its acceptance of a Class G
Certificate, covenants and agrees that such Class G Certificateholder will not
at any time institute against the Trust, the Seller or the Depositor, or join in
any institution against the Trust, the Seller or the Depositor of,
A-2-5
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Class G Certificates, the Trust Agreement or any of the Operative Agreements.
Distributions on this Class G Certificate will be made as provided in
the Sale and Servicing Agreement and the Indenture by the Owner Trustee by wire
transfer to the Class G Certificateholder of record in the Certificate Register
without the presentation or surrender of this Class G Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Class G Certificate
will be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class G
Certificate at the office or agency maintained for the purpose by the
Certificate Registrar.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Class G Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
The Class G Certificates do not represent an obligation of, or an
interest in, the Seller, the Depositor, the Servicer, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement, the Indenture or the Operative Agreements. In addition,
this Class G Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Mortgage Loans, as more specifically set forth herein, in the
Sale and Servicing Agreement and in the Indenture. A copy of each of the Sale
and Servicing Agreement and the Trust Agreement may be examined during normal
business hours at the principal office of the Depositor, and at such other
places, if any, designated by the Depositor, by any Class G Certificateholder
upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Administrator and the rights of the Class G Certificateholders
under the Trust Agreement at any time by the Depositor, the Certificate
Registrar and the Owner Trustee with the consent of the holders of the Notes and
the Class G Certificates evidencing not less than a majority of the outstanding
Notes and the Class G Certificates. Any such amendment shall be conclusive and
binding upon the holder of this Class G Certificate and on all future holders of
this Class G Certificate and of any Class G Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Class G Certificate. The Trust Agreement also permits
the amendment thereof, in certain limited circumstances, without the consent of
the holders of any of the Class G Certificates (other than the Initial Holder).
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Class G Certificate is registrable in
the Certificate Register upon surrender of this Class G Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar, accompanied by a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney
A-2-6
duly authorized in writing, and thereupon one or more new Class G Certificates
in authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Class G Certificates are exchangeable for new Class G
Certificates evidencing the same denomination, as requested by the holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar, may treat the person in whose name this
Class G Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar nor any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Class G
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement, the Indenture and the Sale and Servicing Agreement and the
disposition of all property held as part of the Trust. The Notes may be redeemed
pursuant to Section 8.02 of the Sale and Servicing Agreement, and if all of the
Notes are redeemed, such redemption may result in termination of the Trust which
may effect a transfer of the Class G Certificates; however, such right of
purchase is exercisable, subject to certain restrictions set forth in the Sale
and Servicing Agreement.
The recitals contained herein shall be taken as the statements of the
Depositor and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Class G Certificate or of any Mortgage Loan or related
document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Class G Certificate shall not entitle the holder hereof to any
benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
A-2-7
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Residual Certificate to be duly
executed.
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee
By:
-------------------------------------
Name:
Title:
Dated: __________, 200_
A-2-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Class G Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney to transfer said Class G Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
*
---------------------------------------
Signature Guaranteed:
*
---------------------------------------
------------------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Class G
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be determined
by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
X-0-0
XXXXXXX X-0
FORM OF CLASS R CERTIFICATE
THIS CLASS R CERTIFICATE IS A REMIC RESIDUAL INTEREST CERTIFICATE. THIS
CLASS R CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE EXTENT
DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CLASS R CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.03 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS R CERTIFICATE MAY BE MADE UNLESS THE
TRANSFEREE PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH CLASS R
CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE, TO THE EFFECT THAT SUCH TRANSFEREE IS NOT ACQUIRING THE CLASS R
CERTIFICATE FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")) OR TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR TO ANY SUBSTANTIALLY SIMILAR
LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, WHICH
REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE.
NO TRANSFER OF A CLASS R CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE IN ACCORDANCE WITH
SAID ACT AND LAWS. EXCEPT FOR THE INITIAL ISSUANCE OF THE CLASS R CERTIFICATE TO
THE INITIAL HOLDER, THE OWNER TRUSTEE SHALL REQUIRE THE TRANSFEREE TO EXECUTE AN
INVESTMENT LETTER ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE CERTIFYING TO THE OWNER TRUSTEE THE FACTS SURROUNDING SUCH
TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE.
THE HOLDER OF A CLASS R CERTIFICATE DESIRING TO EFFECT SUCH TRANSFER SHALL, AND
DOES HEREBY AGREE TO, INDEMNIFY THE DEPOSITOR, THE OWNER TRUSTEE AND THE
CERTIFICATE REGISTRAR AGAINST ANY LIABILITY THAT
A-3-1
MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT OR IS NOT MADE IN ACCORDANCE WITH
SUCH FEDERAL AND STATE LAWS.
NEITHER THIS CLASS R CERTIFICATE, NOR ANY BENEFICIAL INTEREST IN THIS
CLASS R CERTIFICATE, MAY BE TRANSFERRED, SOLD, PLEDGED, OR OTHERWISE DISPOSED OF
UNLESS PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER
TRUSTEE AND THE CERTIFICATE REGISTRAR AN AFFIDAVIT STATING (A) THAT THE PROPOSED
TRANSFEREE IS NOT A "DISQUALIFIED ORGANIZATION" WITHIN THE MEANING OF SECTION
860E(E)(5) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND IS
NOT PURCHASING THE CLASS R CERTIFICATE ON BEHALF OF A DISQUALIFIED ORGANIZATION
AND (B) THAT NO PURPOSE OF SUCH TRANSFER IS TO AVOID OR IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX.
NO TRANSFER OF THIS CLASS R CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS
CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER
U.S. LAW AND THE OTHER OPINIONS AND CERTIFICATES SPECIFIED IN SECTION 3.03 OF
THE AGREEMENT REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3-2
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1
CLASS R CERTIFICATE
Class: R Cut-Off Date: March 1, 2005
Percentage Interest: [________]% Issue Date: March 30, 2005
First Payment Date: April 25, 2005
No. 1
[---------------------]
Class R Certificateholder
A-3-3
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee
By:
--------------------------
Authenticating Agent
A-3-4
The Trust was created pursuant to a Trust Agreement dated as of March
30, 2005 (the "TRUST AGREEMENT"), among Financial Asset Securities Corp. (the
"Depositor"), Wilmington Trust Company, as owner trustee (the "OWNER TRUSTEE")
and Deutsche Bank National Trust Company (the "Certificate Registrar'), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Trust Agreement.
This Class R Certificate is one of the duly authorized Class R
Certificates designated as "GreenPoint Mortgage Funding Trust 2005-HE1, Class R
Certificates" (herein called, together with the GreenPoint Mortgage Funding
Trust 2005-HE1, Class C Certificates, Class G Certificates and Class R-X
Certificates, the "RESIDUAL CERTIFICATES"). Also issued by the Trust under the
Indenture are seventeen Classes of Notes designated as the Class A-1A, Class
X-0X, Xxxxx X-0, Class A-3, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class B-1, Class B-2
and Class B-3 (collectively, the "NOTES"). These Class R Certificates are issued
under and are subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Class R Certificate by
virtue of the acceptance hereof assents and by which such holder is bound. The
property of the Trust includes a pool of certain adjustable rate home equity
revolving credit line loans (the "MORTGAGE LOANS") (including any Additional
Balances related thereto).
Under the Sale and Servicing Agreement dated as of March 30, 2005 among
the Issuer, the Depositor, the Servicer and the Indenture Trustee, there will be
distributed on the 25th day of each month or, if such 25th day is not a Business
Day, the next Business Day (the "PAYMENT DATE"), commencing on April 25, 2005,
to the Person in whose name this Class R Certificate is registered at the close
of business on the Business Day preceding such Payment Date (the "RECORD DATE")
such Class R Certificateholder's Percentage Interest in the amount to be
distributed to Class R Certificateholders on such Payment Date.
The holder of this Class R Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Class R Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable. The
holder of this Class R Certificate, by acceptance of this Class R Certificate,
specifically acknowledges (i) that it has no right to or interest in any monies
at any time held in the Trust Estate prior to the release of such monies
pursuant to Section 5.03(b) of the Indenture, such monies being held in trust
for the benefit of the Noteholders and the Sale and Servicing Agreement, and
(ii) the obligations of the holder of the Class R Certificate in each Servicing
Agreement and the Sale and Servicing Agreement. Notwithstanding the foregoing,
in the event that it is ever determined that the monies held in the Trust Estate
constitute a pledge of collateral, then the provisions of the Sale and Servicing
Agreement shall be considered to constitute a security agreement and the holder
of this Class R Certificate hereby grants to the Indenture Trustee a first
priority perfected security interest in such amounts. In addition, each Class R
Certificateholder, by acceptance of its Class R Certificate, hereby appoints the
Depositor, as its agent to pledge a first priority perfected security interest
in the Trust Estate and agrees to execute and deliver such instruments of
conveyance, assignment, grant, confirmation, etc., as well as any financing
statements, in each case as shall be considered reasonably necessary in order to
perfect the Indenture Trustee's security interest in the Trust Estate.
A-3-5
Each Class R Certificateholder, by its acceptance of a Class R
Certificate, covenants and agrees that such Class R Certificateholder will not
at any time institute against the Trust, the Seller or the Depositor, or join in
any institution against the Trust, the Seller or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Class R
Certificates, the Trust Agreement or any of the Operative Agreements.
Distributions on this Class R Certificate will be made as provided in
the Sale and Servicing Agreement and the Indenture by the Owner Trustee by wire
transfer to the Class R Certificateholder of record in the Certificate Register
without the presentation or surrender of this Class R Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Class R Certificate
will be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class R
Certificate at the office or agency maintained for the purpose by the
Certificate Registrar.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Class R Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
The Class R Certificates do not represent an obligation of, or an
interest in, the Seller, the Depositor, the Servicer, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement, the Indenture or the Operative Agreements. In addition,
this Class R Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Mortgage Loans, as more specifically set forth herein, in the
Sale and Servicing Agreement and in the Indenture. A copy of each of the Sale
and Servicing Agreement and the Trust Agreement may be examined during normal
business hours at the principal office of the Depositor, and at such other
places, if any, designated by the Depositor, by any Class R Certificateholder
upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Administrator and the rights of the Class R Certificateholders
under the Trust Agreement at any time by the Depositor, the Certificate
Registrar and the Owner Trustee with the consent of the holders of the Notes and
the Class R Certificates evidencing not less than a majority of the outstanding
Notes and the Class R Certificates. Any such amendment shall be conclusive and
binding upon the holder of this Class R Certificate and on all future holders of
this Class R Certificate and of any Class R Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Class R Certificate. The Trust Agreement also permits
the amendment thereof, in certain limited circumstances, without the consent of
the holders of any of the Class R Certificates (other than the Initial Holder).
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Class R Certificate is registrable in
the Certificate Register upon surrender of
A-3-6
this Class R Certificate for registration of transfer at the offices or agencies
of the Certificate Registrar maintained by the Certificate Registrar,
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Class R Certificates in authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Class R Certificates are exchangeable for new Class R
Certificates in authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Class R Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar nor any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Class R
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement, the Indenture and the Sale and Servicing Agreement and the
disposition of all property held as part of the Trust. The Notes may be redeemed
pursuant to Section 8.02 of the Sale and Servicing Agreement, and if all of the
Notes are redeemed, such redemption may result in termination of the Trust which
may effect a transfer of the Class R Certificates; however, such right of
purchase is exercisable, subject to certain restrictions set forth in the Sale
and Servicing Agreement.
The recitals contained herein shall be taken as the statements of the
Depositor, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Class R Certificate or of any Mortgage Loan or related
document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Class R Certificate shall not entitle the holder hereof to any
benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
A-3-7
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Residual Certificate to be duly
executed.
GREENPOINT MORTGAGE FUNDING TRUST
2005-HE1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By:
---------------------------------------
Name:
Title:
Dated: __________, 200_
A-3-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Class R Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney to transfer said Class R Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
*
---------------------------------------
Signature Guaranteed:
*
---------------------------------------
------------------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Class R
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be determined
by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
X-0-0
XXXXXXX X-0
FORM OF CLASS R-X CERTIFICATE
THIS CLASS R-X CERTIFICATE IS A REMIC RESIDUAL INTEREST CERTIFICATE.
THIS CLASS R-X CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE
EXTENT DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS CLASS R-X CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CLASS R-X CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-X CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.03 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS R-X CERTIFICATE MAY BE MADE UNLESS THE
TRANSFEREE PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH CLASS
R-X CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE, TO THE EFFECT THAT SUCH TRANSFEREE IS NOT ACQUIRING THE CLASS R-X
CERTIFICATE FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")) OR TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR TO ANY SUBSTANTIALLY SIMILAR
LAW, OR ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF THE FOREGOING, WHICH
REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF THE OWNER TRUSTEE.
NO TRANSFER OF A CLASS R-X CERTIFICATE SHALL BE MADE UNLESS SUCH
TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR IS MADE IN
ACCORDANCE WITH SAID ACT AND LAWS. EXCEPT FOR THE INITIAL ISSUANCE OF THE CLASS
R-X CERTIFICATE TO THE INITIAL HOLDER, THE OWNER TRUSTEE SHALL REQUIRE THE
TRANSFEREE TO EXECUTE AN INVESTMENT LETTER ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE CERTIFYING TO THE OWNER TRUSTEE THE
FACTS SURROUNDING SUCH TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN EXPENSE
OF THE OWNER TRUSTEE. THE HOLDER OF A CLASS R-X CERTIFICATE DESIRING TO EFFECT
SUCH TRANSFER SHALL, AND DOES HEREBY AGREE TO, INDEMNIFY THE DEPOSITOR, THE
OWNER TRUSTEE AND THE CERTIFICATE REGISTRAR AGAINST ANY LIABILITY THAT
A-4-1
MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT OR IS NOT MADE IN ACCORDANCE WITH
SUCH FEDERAL AND STATE LAWS.
NEITHER THIS CLASS R-X CERTIFICATE, NOR ANY BENEFICIAL INTEREST IN THIS
CLASS R-X CERTIFICATE, MAY BE TRANSFERRED, SOLD, PLEDGED, OR OTHERWISE DISPOSED
OF UNLESS PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE
OWNER TRUSTEE AND THE CERTIFICATE REGISTRAR AN AFFIDAVIT STATING (A) THAT THE
PROPOSED TRANSFEREE IS NOT A "DISQUALIFIED ORGANIZATION" WITHIN THE MEANING OF
SECTION 860E(E)(5) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND IS NOT PURCHASING THE CLASS R-X CERTIFICATE ON BEHALF OF A DISQUALIFIED
ORGANIZATION AND (B) THAT NO PURPOSE OF SUCH TRANSFER IS TO AVOID OR IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX.
NO TRANSFER OF THIS CLASS R-X CERTIFICATE SHALL BE MADE UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS
CERTIFYING AS TO THE TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER
U.S. LAW AND THE OTHER OPINIONS AND CERTIFICATES SPECIFIED IN SECTION 3.03 OF
THE AGREEMENT REFERRED TO HEREIN.
THIS CLASS R-X CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4-2
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1
CLASS R-X CERTIFICATE
Class: R-X Cut-Off Date: March 1, 2005
Percentage Interest: [________]% Issue Date: March 30, 2005
First Payment Date: April 25, 2005
No. 1
[-------------------]
Class R-X Certificateholder
A-4-3
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class R-X Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee
By:
-----------------------
Authenticating Agent
A-4-4
The Trust was created pursuant to a Trust Agreement dated as of March
30, 2005 (the "TRUST AGREEMENT"), among Financial Asset Securities Corp. (the
"Depositor"), Wilmington Trust Company, as owner trustee (the "OWNER TRUSTEE")
and Deutsche Bank National Trust Company, as certificate registrar (the
"Certificate Registrar"), a summary of certain of the pertinent provisions of
which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement.
This Class R-X Certificate is one of the duly authorized Class R-X
Certificates designated as "GreenPoint Mortgage Funding Trust 2005-HE1, Class
R-X" (herein called, together with the GreenPoint Mortgage Funding Trust
2005-HE1, Class C Certificates, Class G Certificates and Class R Certificates,
the "RESIDUAL CERTIFICATES"). Also issued by the Trust under the Indenture are
seventeen Classes of Notes designated as the Class A-1A, Class X-0X, Xxxxx X-0,
Class A-3, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class M-8, Class B-1, Class B-2 and Class B-3
(collectively, the "NOTES"). These Class R-X Certificates are issued under and
are subject to the terms, provisions and conditions of the Trust Agreement, to
which Trust Agreement the holder of this Class R-X Certificate by virtue of the
acceptance hereof assents and by which such holder is bound. The property of the
Trust includes a pool of certain adjustable rate home equity revolving credit
line loans (the "MORTGAGE LOANS") (including any Additional Balances related
thereto).
Under the Sale and Servicing Agreement dated as of March 30, 2005 among
the Issuer, the Depositor, the Servicer and the Indenture Trustee, there will be
distributed on the 25th day of each month or, if such 25th day is not a Business
Day, the next Business Day (the "PAYMENT DATE"), commencing on April 25, 2005,
to the Person in whose name this Class R-X Certificate is registered at the
close of business on the Business Day preceding such Payment Date (the "RECORD
DATE") such Class R-X Certificateholder's Percentage Interest in the amount to
be distributed to Class R-X Certificateholders on such Payment Date.
The holder of this Class R-X Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Class R-X Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable. The
holder of this Class R-X Certificate, by acceptance of this Class R-X
Certificate, specifically acknowledges (i) that it has no right to or interest
in any monies at any time held in the Trust Estate prior to the release of such
monies pursuant to Section 5.03(b) of the Indenture, such monies being held in
trust for the benefit of the Noteholders and the Sale and Servicing Agreement,
and (ii) the obligations of the holder of the Class R-X Certificate in each
Servicing Agreement and the Sale and Servicing Agreement. Notwithstanding the
foregoing, in the event that it is ever determined that the monies held in the
Trust Estate constitute a pledge of collateral, then the provisions of the Sale
and Servicing Agreement shall be considered to constitute a security agreement
and the holder of this Class R-X Certificate hereby grants to the Indenture
Trustee a first priority perfected security interest in such amounts. In
addition, each Class R-X Certificateholder, by acceptance of its Class R-X
Certificate, hereby appoints the Depositor, as its agent to pledge a first
priority perfected security interest in the Trust Estate and agrees to execute
and deliver such instruments of conveyance, assignment, grant, confirmation,
etc., as well as any financing statements, in each case as the Indenture Trustee
shall be considered reasonably necessary in order to perfect the Indenture
Trustee's security interest in the Trust Estate.
A-4-5
Each Class R-X Certificateholder, by its acceptance of a Class R-X
Certificate, covenants and agrees that such Class R-X Certificateholder will not
at any time institute against the Trust, the Seller or the Depositor, or join in
any institution against the Trust, the Seller or the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Class R-X
Certificates, the Trust Agreement or any of the Operative Agreements.
Distributions on this Class R-X Certificate will be made as provided in
the Sale and Servicing Agreement and the Indenture by the Owner Trustee by wire
transfer to the Class R-X Certificateholder of record in the Certificate
Register without the presentation or surrender of this Class R-X Certificate or
the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this Class
R-X Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Class R-X Certificate at the office or agency maintained for the purpose by the
Certificate Registrar.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Class R-X Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
The Class R-X Certificates do not represent an obligation of, or an
interest in, the Seller, the Depositor, the Servicer, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement, the Indenture or the Operative Agreements. In addition,
this Class R-X Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Mortgage Loans, as more specifically set forth herein, in the
Sale and Servicing Agreement and in the Indenture. A copy of each of the Sale
and Servicing Agreement and the Trust Agreement may be examined during normal
business hours at the principal office of the Depositor, and at such other
places, if any, designated by the Depositor, by any Class R-X Certificateholder
upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Administrator and the rights of the Class R-X Certificateholders
under the Trust Agreement at any time by the Depositor, the Certificate
Registrar and the Owner Trustee with the consent of the holders of the Notes and
the Class R-X Certificates evidencing not less than a majority of the
outstanding Notes and the Class R-X Certificates. Any such amendment shall be
conclusive and binding upon the holder of this Class R-X Certificate and on all
future holders of this Class R-X Certificate and of any Class R-X Certificate
issued upon the transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Class R-X Certificate. The
Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the holders of any of the Class R-X
Certificates (other than the Initial Holder).
A-4-6
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Class R-X Certificate is registrable in
the Certificate Register upon surrender of this Class R-X Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar, accompanied by a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon one
or more new Class R-X Certificates in authorized denominations evidencing the
same aggregate interest in the Trust will be issued to the designated
transferee.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Class R-X Certificates are exchangeable for new Class R-X
Certificates in authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Class R-X Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar nor any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Class R-X
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement, the Indenture and the Sale and Servicing Agreement and the
disposition of all property held as part of the Trust. The Notes may be redeemed
pursuant to Section 8.02 of the Sale and Servicing Agreement, and if all of the
Notes are redeemed, such redemption may result in termination of the Trust which
may effect a transfer of the Class R-X Certificates; however, such right of
purchase is exercisable, subject to certain restrictions set forth in the Sale
and Servicing Agreement.
The recitals contained herein shall be taken as the statements of the
Depositor and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Class R-X Certificate or of any Mortgage Loan or related
document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Class R-X Certificate shall not entitle the holder hereof to any
benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
A-4-7
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Residual Certificate to be duly
executed.
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By:
------------------------------------------
Name:
Title:
Dated: __________, 200_
A-4-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Class R-X Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_____________________________________ Attorney to transfer said Class R-X
Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
*
---------------------------------------
Signature Guaranteed:
*
---------------------------------------
------------------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Class
R-X Certificate in every particular, without alteration, enlargement or
any change whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be determined
by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
A-4-9
EXHIBIT B
[Reserved]
B-1
EXHIBIT C
FORM OF CERTIFICATE OF TRUST OF
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1
THIS Certificate of Trust of GreenPoint Mortgage Funding Trust 2005-HE1
(the "Trust"), is being duly executed and filed by the undersigned, as trustee,
to form a statutory trust under the Delaware Statutory Trust Act (12 DEL. CODE,
Sections 3801 et seq.) (the "Act")
1. NAME. The name of the statutory trust formed hereby is
"GreenPoint Mortgage Funding Trust 2005-HE1."
2. DELAWARE TRUSTEE. The name and business address of the trustee
of the Trust in the State of Delaware are WILMINGTON TRUST COMPANY, Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective
on March __, 2005.
C-1
IN WITNESS WHEREOF, the undersigned, being the owner trustee of the
Trust, has executed this Certificate of Trust in accordance with Section 3811(a)
of the Act.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
-------------------------------------
Name:
Title:
X-0
XXXXXXX X-0
FORM OF RULE 144A INVESTMENT LETTER
------------------
Date
Deutsche Bank National Trust Company,
as Certificate Registrar
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration
Re: GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1, CLASS ____ CERTIFICATES
Ladies and Gentlemen:
In connection with our acquisition of the GreenPoint Mortgage Funding
Trust 2005-HE1, Class ___ Certificate (the "Certificate"), we certify that (a)
we understand that the Certificate has not been registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificate, (c) we have had the
opportunity to ask questions of and receive answers from the Financial Asset
Securities Corp. (the "Depositor") concerning the purchase of the Certificate
and all matters relating thereto or any additional information deemed necessary
to our decision to purchase the Certificate, (d) we have not, nor has anyone
acting on our behalf, offered, transferred, pledged, sold or otherwise disposed
of the Certificate or any interest in the Certificate, or solicited any offer to
buy, transfer, pledge or otherwise dispose of the Certificate or any interest in
the Certificate from any person in any manner, or made any general solicitation
by means of general advertising or in any other manner, or taken any other
action that would constitute a distribution of the Certificate under the Act or
that would render the disposition of the Certificate a violation of Section 5 of
the Act or any state securities laws or require registration pursuant thereto,
and we will not act, or authorize any person to act, in such manner with respect
to the Certificate and (e) we are a "qualified institutional buyer" as that term
is defined in Rule 144A under the Act ("Rule 144A"). We are aware that the sale
to us is being made in reliance on Rule 144A.
We are acquiring the Certificate for our own account or for resale
pursuant to Rule 144A and understand that such Certificate may be resold,
pledged or transferred only (1) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A or (2)
pursuant to another exemption from registration under the Act.
In addition, we hereby certify that we are not, and are not purchasing
the Certificate for or on behalf of, an employee benefit plan or other
retirement arrangement that is subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")
D-1-1
or to Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code")
or to any substantially similar law ("Similar Law"), or any entity deemed to
hold the plan assets of the foregoing (collectively, "Plans").
Moreover, we hereby certify that we are a United States person within
the meaning of Section 7701(a)(30) of the Code.
We hereby acknowledge that under the terms of the Trust Agreement among
Financial Asset Securities Corp., as Depositor, Wilmington Trust Company, as
Owner Trustee, and Deutsche Bank National Trust Company, as Certificate
Registrar, dated as of March 30, 2005, no transfer of the Certificates shall be
permitted to be made to any person unless the Certificate Registrar has received
a certificate from such transferee in the form hereof.
We hereby indemnify the Depositor, Certificate Registrar and the Owner
Trustee against any liability that may result to either of them if our transfer
or other disposition of any Certificates (or any interest therein) is not exempt
from the registration requirements of the Act and any applicable state
securities laws or is not made in accordance with such federal and state laws,
the provisions of this certificate or the applicable provisions of the
Indenture.
Very truly yours,
[Name of Transferee]
By:
------------------------------------
Name:
Title:
CC: Wilmington Trust Company, as Owner Trustee
X-0-0
XXXXXXX X-0
FORM OF NON-RULE 144A INVESTMENT LETTER
------------------
Date
Deutsche Bank National Trust Company,
as Certificate Registrar
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration
Re: GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1, CLASS ___ CERTIFICATES
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced certificates
(the "Certificates") we certify that (a) we understand that the Certificates
have not been registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities laws and are being transferred to us in a
transaction that is exempt from the registration requirements of the Act and any
such laws, (b) we are an "accredited investor," as defined in Rule 501(a)(1),
(2), (3) or (7) under the Act, and have such knowledge and experience in
financial and business matters that we are capable of evaluating the merits and
risks of investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase of
the Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (f) below), (e) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action that would result in a violation of Section 5 of the Act
or any state securities laws and (f) we will not sell, transfer or otherwise
dispose of any Certificates unless (1) such sale, transfer or other disposition
is made pursuant to an effective registration statement under the Act and in
compliance with any relevant state securities laws or is exempt from such
registration requirements and, if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Trust Agreement, dated as of March 30,
2005 (the "Trust Agreement"), among Financial Asset Securities Corp., as
Depositor, Wilmington Trust Company, as Owner Trustee and Deutsche Bank National
Trust Company, as Certificate Registrar.
D-2-1
In addition, we hereby certify that we are not, and are not purchasing
the Certificate for or on behalf of, an employee benefit plan or other
retirement arrangement that is subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or to Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code") or to any substantially
similar law ("Similar Law"), or any entity deemed to hold the plan assets of the
foregoing (collectively, "Plans").
Moreover, we hereby certify that we are a United States person within
the meaning of Section 7701(a)(30) of the Code.
We hereby acknowledge that under the terms of the Trust Agreement, no
transfer of the Certificates shall be permitted to be made to any person unless
the Certificate Registrar has received a certificate from such transferee in the
form hereof.
We hereby indemnify the Owner Trustee, the Depositor and the
Certificate Registrar against any liability that may result to either of them if
our transfer or other disposition of any Certificates (or any interest therein)
is not exempt from the registration requirements of the Act and any applicable
state securities laws or is not made in accordance with such federal and state
laws.
Very truly yours,
[Name of Transferee]
By:
----------------------------------------
Name:
Title:
CC: Wilmington Trust Company, as Owner Trustee
D-2-2
EXHIBIT E
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
This certificate of Non-Foreign status ("certificate") is delivered
pursuant to Section 3.03 of the Trust Agreement dated as of March 30, 2005 (the
"Agreement"), among Financial Asset Securities Corp., as Depositor, Wilmington
Trust Company, as Owner Trustee and Deutsche Bank National Trust Company, as
Certificate Registrar, in connection with the acquisition of, transfer to or
possession by the undersigned, whether as beneficial owner (the "Beneficial
Owner"), or nominee on behalf of the Beneficial Owner of the Class [G][R][R-X]
Certificates, (the "Class [G][R][R-X] Certificate"). Capitalized terms used but
not defined in this certificate have the respective meanings given them in the
Agreement.
Each holder must complete Part I, Part II (if the holder is a nominee),
and in all cases sign and otherwise complete Part III. In addition, each holder
shall submit with the certificate an IRS Form W-9 relating to such holder.
To confirm to the Trust that the provisions of Sections 871, 881 or
1446 of the Internal Revenue Code (relating to withholding tax on foreign
partners) do not apply in respect of the Class [G][R][R-X] Certificate held by
the undersigned, the undersigned hereby certifies:
PART I - COMPLETE EITHER A OR B
A. Individual as Beneficial Owner
1. I am (The Beneficial Owner is) not a
Non-resident alien for purposes of U.S. Income Taxation;
2. My (The Beneficial Owner's) name and home
address are:
___________________________________________
___________________________________________
______________________________________;and
3. My (The Beneficial Owner's) U.S. Taxpayer
Identification Number (Social Security Number) is ___________.
B. Corporate, Partnership or other entity as Beneficial
Owner
1. (Name of the Beneficial Owner) is not a
foreign corporation, foreign partnership, foreign trust or
foreign estate (as those terms are defined in the Code and
Treasury Regulations);
2. The Beneficial Owner's office address and
place of incorporation (if applicable) is ______________; and
3. The Beneficial Owner's U.S. employer
identification number is _____________________.
E-1
PART II - NOMINEES
If the undersigned is the nominee for the Beneficial Owner, the
undersigned certifies that this certificate has been made in reliance upon
information contained in:
_____ an IRS Form W-9
_____ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the
undersigned agrees to notify the Trust at least thirty (30) days prior to the
date that the form relied upon becomes obsolete, and (ii) in connection with
change in Beneficial Owners, the undersigned agrees to submit a new Certificate
of Non-Foreign Status to the Trust promptly after such change.
PART III - DECLARATION
The undersigned, as the Beneficial Owner or a nominee thereof, agrees
to notify the Trust within sixty (60) days of the date that the Beneficial Owner
becomes a foreign person. The undersigned understands that this certificate may
be disclosed to the Internal Revenue Service by the Trust and any false
statement contained therein could be punishable by fines, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete and will further declare that I will inform the Trust of any change in
the information provided above, and, if applicable, I further declare that I
have the authority* to sign this document.
----------------------------------------
Name
----------------------------------------
Title (if applicable)
----------------------------------------
Signature and Date
*NOTE: If signed pursuant to a power of attorney, the power of attorney
must accompany this certificate.
E-2
EXHIBIT F-1
FORM OF CLASS [G][R][R-X] CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
-------------------------
Date
Re: GREENPOINT MORTGAGE FUNDING TRUST 2005-HE1, CLASS [G][R][R-X]
CERTIFICATES
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to the Class [G][R][R-X] Certificate. In addition, the Transferor has
conducted a reasonable investigation at the time of the transfer and found that
the Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
----------------------------------------
Name:
Title:
F-1-1
EXHIBIT F-2
FORM OF CLASS [G][R][R-X] CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
)ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _____________, the proposed
Transferee of an Ownership Interest in a Residual Certificate (the
"CERTIFICATE") issued pursuant to the Trust Agreement dated as of March 30, 2005
(the "AGREEMENT"), among Financial Asset Securities Corp., as depositor (the
"DEPOSITOR"), Wilmington Trust Company, as owner trustee (the "OWNER TRUSTEE")
and Deutsche Bank National Trust Company, as certificate registrar (the
"CERTIFICATE REGISTRAR"). Capitalized terms used but not defined herein 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
for the benefit of the Depositor and the Certificate Registrar.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 3.03(d) of the
Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions
F-2-1
regarding voiding the Transfer and mandatory sales. The Transferee expressly
agrees to be bound by and to abide by the provisions of Section 3.03(d) of the
Agreement and the restrictions noted on the face of the Certificate. The
Transferee understands and agrees that any breach of any of the representations
included herein shall render the Transfer to the Transferee contemplated hereby
null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Certificate Registrar a certificate
substantially in the form set forth as Exhibit F-1 to the Agreement (a
"TRANSFEROR CERTIFICATE") to the effect that such Transferee has no actual
knowledge that the Person to which the Transfer is to be made is not a Permitted
Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is ____________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
Check one of the following:
|_| The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates
losses.
F-2-2
For purposes of this calculation, (i) the Transferee is assumed to pay
tax at the highest rate currently specified in Section 11(b) of the Code (but
the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
|_| The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific
to the Transferee) that it has determined in good faith.
|_| None of the above.
12. The Transferee is not an employee benefit plan that is subject to
Title I of ERISA or a plan that is subject to Section 4975 of the Code or a plan
subject to any Federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
F-2-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[title of officer] this _____ day of __________ 20__.
----------------------------------------
[name of Purchaser]
By:
-------------------------------------
Name:
Title:
Personally appeared before me the above-named [name of
officer] ________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the [title of officer]
_________________ of the Purchaser, and acknowledged to me that he [she]
executed the same as his [her] free act and deed and the free act and deed of
the Purchaser.
Subscribed and sworn before me this _____ day of __________
20__.
NOTARY PUBLIC
---------------------------------
COUNTY OF_____________________
STATE OF_______________________
My commission expires the _____ day of __________ 20__.
F-2-4
EXHIBIT G
OWNER TRUSTEE FEE LETTER AGREEMENT
G-1
