EXECUTION COPY
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TRUST AGREEMENT
between
GREENPOINT MORTGAGE SECURITIES INC.
Sponsor
and
WILMINGTON TRUST COMPANY
Owner Trustee
Dated as of December 1, 2000
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TABLE OF CONTENTS
Page
ARTICLE I Definitions.............................................................................................1
SECTION 1.1. Defined Terms.................................................................................1
SECTION 1.2. Other Definitional Provisions.................................................................2
SECTION 1.3. Action by or Consent of Noteholders and Residual Certificateholders...........................3
ARTICLE II Organization...........................................................................................3
SECTION 2.1. Name 3
SECTION 2.2. Office 3
SECTION 2.3. Purposes and Powers...........................................................................3
SECTION 1.4. Appointment of Owner Trustee..................................................................4
SECTION 2.5. Initial Capital Contribution of Trust Estate..................................................4
SECTION 2.6. Declaration of Trust..........................................................................4
SECTION 2.7. Liability.....................................................................................5
SECTION 2.8. Title to Trust Property.......................................................................5
SECTION 2.9. Situs of Trust................................................................................5
SECTION 2.10. Representations and Warranties of the Sponsor.................................................5
SECTION 2.11. Federal Income Tax Allocations................................................................6
SECTION 2.12. Covenants of the Sponsor......................................................................7
SECTION 2.13. Covenants of the Residual Certificateholders..................................................8
ARTICLE III [Reserved]............................................................................................9
ARTICLE IV Ownership of Trust Property; Residual Certificates and Transfer of Interests...........................9
SECTION 4.1. Trust Property Ownership......................................................................9
SECTION 4.2. The Residual Certificates and Class S Certificates............................................9
SECTION 4.3. Authentication of Residual Certificates and Class S Certificates.............................10
SECTION 4.4. Registration of Transfer and Exchange of Residual Certificates and Class S
Certificates..........................................................................10
SECTION 4.5. Mutilated, Destroyed, Lost or Stolen Residual Certificates or Class S Certificates...........10
SECTION 4.6. Persons Deemed Residual Certificateholders and Class S Certificateholders....................11
SECTION 4.7. Access to List of Residual Certificateholders' and Class S Certificateholders' Names
and Addresses.........................................................................11
SECTION 4.8. Maintenance of Office or Agency..............................................................12
SECTION 4.9. ERISA Restrictions...........................................................................12
SECTION 4.10. Restrictions on Transfer of Residual Certificates and Class S Certificates...................12
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SECTION 4.11. Acceptance of Obligations....................................................................14
SECTION 4.12. Distributions on Class S Certificates and Residual Certificates..............................14
ARTICLE V Voting Rights and Other Actions........................................................................14
SECTION 5.1. Prior Notice to Holders with Respect to Certain Matters......................................14
SECTION 5.2. Action by Residual Certificateholders with Respect to Certain Matters........................15
SECTION 5.3. Action with Respect to Bankruptcy............................................................15
SECTION 5.4. Restrictions on Residual Certificateholders' Power...........................................15
SECTION 5.5. Majority Control.............................................................................16
SECTION 5.6. Rights of the Insurer........................................................................16
ARTICLE VI Certain Duties........................................................................................16
SECTION 6.1. Accounting and Records to the Noteholders, Class S Certificateholders, Residual
Certificateholders, the Internal Revenue Service and Others...........................16
SECTION 6.2. Signature on Returns; Tax Matters Partner....................................................17
SECTION 6.3. Underwriting Agreement.......................................................................17
ARTICLE VII Authority and Duties of Owner Trustee................................................................17
SECTION 7.1. General Authority............................................................................17
SECTION 7.2. General Duties...............................................................................18
SECTION 7.3. Action upon Instruction......................................................................18
SECTION 7.4. No Duties Except as Specified in this Agreement or in Instructions...........................19
SECTION 7.5. No Action Except under Specified Documents or Instructions...................................19
SECTION 7.6. Restrictions.................................................................................19
ARTICLE VIII Concerning the Owner Trustee........................................................................20
SECTION 8.1. Acceptance of Trust and Duties...............................................................20
SECTION 8.2. Furnishing of Documents......................................................................21
SECTION 8.3. Representations and Warranties...............................................................21
SECTION 8.4. Reliance; Advice of Counsel..................................................................21
SECTION 8.5. Not Acting in Individual Capacity............................................................22
SECTION 8.6. Owner Trustee Not Liable for Notes, Residual Certificates, Class S Certificates or
Mortgage Loans........................................................................22
SECTION 8.7. Owner Trustee May Own Notes, Residual Certificates and Class S Certificates..................23
SECTION 8.8. Payments from Owner Trust Estate.............................................................23
SECTION 8.9. Doing Business in Other Jurisdictions........................................................23
ARTICLE IX Compensation of Owner Trustee.........................................................................23
SECTION 9.1. Owner Trustee's Fees and Expenses............................................................23
SECTION 9.2. Indemnification..............................................................................23
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SECTION 9.3. Payments to the Owner Trustee................................................................24
SECTION 9.4. Non-recourse Obligations.....................................................................24
ARTICLE X Termination of Trust Agreement.........................................................................24
SECTION 10.1. Termination of Trust Agreement...............................................................24
ARTICLE XI Successor Owner Trustees and Additional Owner Trustees................................................26
SECTION 11.1. Eligibility Requirements for Owner Trustee...................................................26
SECTION 11.2. Resignation or Removal of Owner Trustee......................................................26
SECTION 11.3. Successor Owner Trustee......................................................................27
SECTION 11.4. Merger or Consolidation of Owner Trustee.....................................................27
SECTION 11.5. Appointment of Co-Owner Trustee or Separate Owner Trustee....................................28
ARTICLE XII Miscellaneous........................................................................................29
SECTION 12.1. Supplements and Amendments...................................................................29
SECTION 1.2. No Legal Title to Owner Trust Estate in Residual Certificateholders..........................30
SECTION 12.3. Limitations on Rights of Others..............................................................30
SECTION 12.4. Notices......................................................................................30
SECTION 12.5. Severability.................................................................................31
SECTION 12.6. Separate Counterparts........................................................................31
SECTION 12.7. Assignments; Insurer.........................................................................31
SECTION 12.8. No Petition..................................................................................32
SECTION 12.9. No Recourse..................................................................................32
SECTION 12.10. Headings.....................................................................................32
SECTION 12.11. GOVERNING LAW................................................................................32
SECTION 12.12. Servicer.....................................................................................32
EXHIBITS
Exhibit A.........Form of Class S Certificate
Exhibit B.........Form of Residual Certificate
Exhibit C.........Form of Certificate of Trust
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TRUST AGREEMENT dated as of December 1, 2000 (the "Agreement")
between GREENPOINT MORTGAGE SECURITIES INC., a Delaware corporation (the
"Sponsor"), and WILMINGTON TRUST COMPANY, a Delaware banking corporation as
Owner Trustee.
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. For the purposes of this Agreement, the
following terms shall have the meanings set forth below. All other capitalized
terms used herein but not defined shall have the meanings set forth in Annex A
to the Indenture dated as of December 1, 2000 (the "Indenture"), between the
Issuer and the Indenture Trustee, as the same may be amended and supplemented
from time to time.
"Affiliate" shall mean with respect to any specified Person, a Person
that directly, or indirectly through one or more intermediaries, controls or
is controlled by, or is under common control with, or owns, directly or
indirectly, 50% or more of, the Person specified.
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Benefit Plan" shall have the meaning assigned to such term in
Section 4.9.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq. as the same may be amended from
time to time.
"Certificate of Trust" shall mean the Certificate of Trust in the
form of Exhibit C to be filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register maintained and the registrar respectively appointed pursuant to
Section 4.4.
"Class S Certificate" shall mean an interest only certificate issued
by the Trust, substantially in the form of Exhibit A attached hereto.
"Class S Certificateholder" shall mean the Person in whose name a
Class S Certificate is registered on the Certificate Register.
"Definitive Residual Certificates" shall mean Residual Certificates
issued in certificated, fully registered form.
"Expenses" shall have the meaning assigned to such term in Section
9.2.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 9.2.
"Instructing Party" shall have the meaning assigned to such term in
Section 7.3.
"Owner" shall have the meaning assigned to such term in Section 3.5.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from time
to time in the Collection Account and all other property of the Trust from
time to time, including any rights of the Issuer pursuant to the Sale and
Servicing Agreement and any rights of the Sponsor, in its capacity as
Purchaser, pursuant to the Mortgage Loan Purchase Agreement.
"Proposer" shall have the meaning ascribed to it in Section 5.2(b)
herein.
"Residual Certificate" shall mean a trust certificate evidencing the
beneficial ownership interest of a Residual Certificateholder in the Trust,
substantially in the form of Exhibit B attached hereto.
"Residual Certificateholder" shall mean the Person in whose name a
Residual Certificate is registered on the Certificate Register.
"Secretary of State" shall mean the Secretary of State of the State
of Delaware.
"Security Majority" shall mean a majority by principal amount of the
Noteholders so long as the Notes are outstanding and a majority by principal
amount of the Residual Certificateholders thereafter.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
SECTION 1.2. 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 as in
effect on the date of this Agreement or any such certificate or other
document, as applicable. 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
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provision of this Agreement; Section and Exhibit references contained in this
Agreement are references to Sections and Exhibits in or to this Agreement
unless otherwise specified; and the term "including" shall mean "including
without limitation."
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
SECTION 1.3. Action by or Consent of Noteholders and Residual
Certificateholders. Whenever any provision of this Agreement refers to action
to be taken, or consented to, by Noteholders, Class S Certificateholders or
Residual Certificateholders, such provision shall be deemed to refer to the
Noteholder, Class S Certificateholder or Residual Certificateholder, as the
case may be, of record as of the Record Date immediately preceding the date on
which such action is to be taken, or consent given, by Noteholders, Class S
Certificateholder or Residual Certificateholders. Solely for the purposes of
any action to be taken, or consented to, by Noteholders, Class S
Certificateholders or Residual Certificateholders, any Note or Certificate
Registered in the name of the Sponsor or any Affiliate thereof shall be deemed
not to be outstanding; provided, however, that, solely for the purpose of
determining whether the Indenture Trustee is entitled to rely upon any such
action or consent, only Notes, Class S Certificates or Residual Certificates
which the Owner Trustee, or the Indenture Trustee, respectively, knows to be
so owned shall be so disregarded.
ARTICLE II
Organization
SECTION 2.1. Name. There is hereby formed a trust to be known as
"GreenPoint Home Equity Loan Trust 2000-3", in which name the Owner Trustee
may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
SECTION 2.2. Office. The office of the Trust shall be in the care of
the Owner Trustee at the Corporate Trust Office or at such other address as
the Owner Trustee may designate by written notice to the Residual
Certificateholders and the Sponsor.
SECTION 2.3. Purposes and Powers.
(a) The purpose of the Trust is, and the Trust shall have the power
and authority, to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Residual
Certificates and Class S Certificates pursuant to this Agreement, and to
sell the Notes, Residual Certificates and Class S Certificates;
(ii) to assign, grant, transfer, pledge, mortgage and convey the
Owner Trust Estate to the Indenture Trustee on behalf of the Noteholders
and for the benefit of the Insurer and to hold, manage and distribute to
the Residual Certificateholders pursuant to
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the terms of the Sale and Servicing Agreement any portion of the Owner
Trust Estate released from the Lien of, and remitted to the Trust
pursuant to, the Indenture;
(iii) with the proceeds of the sale of the Notes, to pay the
organizational, start-up and transactional expenses of the Trust and to
pay the balance to the Sponsor pursuant to the Sale and Servicing
Agreement;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Owner Trust Estate and the making of distributions to the
Noteholders and the Residual Certificateholders.
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 Basic
Documents.
SECTION 2.4. Appointment of Owner Trustee. The Sponsor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The
Sponsor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Sponsor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Collection Account. On or prior to the Closing
Date, the Owner Trustee will also, upon receipt thereof, acknowledge on behalf
of the Trust receipt of the Mortgage Loans pursuant to the Sale and Servicing
Agreement. The Sponsor 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.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Residual
Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the
intention of the parties hereto that, solely for income tax purposes, the
Trust shall be treated as a branch; provided, however, that in the event
Residual Certificates are owned by more than one Residual Certificateholder,
it is the intention of the parties hereto that, solely for income and
franchise tax purposes, the Trust shall then be treated as a partnership and
that, unless otherwise required by appropriate tax authorities, only after
such time the Trust will file or cause to be filed annual or other necessary
returns, reports and other
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forms consistent with the characterization of the Trust as a partnership for
such tax purposes. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and to the extent not
inconsistent herewith, in the Business Trust Statute with respect to
accomplishing the purposes of the Trust. The Owner Trustee shall file the
Certificate of Trust with the Secretary of State.
SECTION 2.7. Liability. No Holder shall have any personal liability
for any liability or obligation of the Trust.
SECTION 2.8. Title to Trust Property.
(a) Legal title to all the Owner Trust Estate shall be vested at all
times in the Trust as a separate legal entity except where applicable law in
any jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a trustee or trustees, in which case title shall be deemed to be
vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the
case may be.
(b) The Holders shall not have legal title to any part of the Trust
Property. The Holders shall be entitled to receive distributions with respect
to their undivided ownership interest therein only in accordance with Article
IX. No transfer, by operation of law or otherwise, of any right, title or
interest by any Residual Certificateholder of its ownership interest in the
Owner Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it
of legal title to any part of the Trust Property.
SECTION 2.9. 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 State of Delaware
or the State of New York. Payments will be received by the Trust only in
Delaware or New York and payments will be made by the Trust only from Delaware
or New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee, the Servicer or any agent of the Trust from having
employees within or without the State of Delaware. The only office of the
Trust will be at the Corporate Trust Office in Delaware.
SECTION 2.10. Representations and Warranties of the Sponsor. The
Sponsor makes the following representations and warranties on which the Owner
Trustee relies in accepting the Owner Trust Estate in trust and issuing the
Notes, the Residual Certificates and the Class S Certificates and upon which
the Insurer relies in issuing the Policy.
(a) The Sponsor is duly organized and validly existing as a Delaware
corporation with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted and is proposed to be conducted pursuant to this Agreement and the
Basic Documents;
(b) It is duly qualified to do business as a foreign corporation in
good standing, and has obtained all necessary licenses and approvals, in all
jurisdictions in which the
5
ownership or lease of its property, the conduct of its business and the
performance of its obligations under this Agreement and the Basic Documents
requires such qualification;
(c) The Sponsor has the corporate power and authority to execute and
deliver this Agreement and to carry out its terms; this Agreement, when
executed and delivered by the Sponsor, will constitute the legal, valid and
binding obligations of the Sponsor, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equitable principles; the Sponsor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust and the Sponsor has duly authorized such sale and
assignment and deposit to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement has been duly authorized
by the Sponsor by all necessary corporate action;
(d) No consent, license, approval or authorization or registration or
declaration with, any Person or with any governmental authority, bureau or
agency is required in connection with the execution, delivery or performance
of this Agreement and the Basic Documents, except for such as have been
obtained, effected or made;
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Sponsor, or any material indenture, agreement
or other instrument to which the Sponsor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate any law
or, to the best of the Sponsor's knowledge, any order, rule or regulation
applicable to the Sponsor of any court or of any Federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Sponsor or its properties; and
(f) There are no proceedings or investigations pending or, to its
knowledge threatened against it before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over it or its properties (A) asserting the invalidity of this
Agreement or any of the Basic Documents, (B) seeking to prevent the issuance
of the Notes, the Residual Certificates or the Class S Certificates or the
consummation of any of the transactions contemplated by this Agreement or any
of the Basic Documents, (C) seeking any determination or ruling that might
materially and adversely affect its performance of its obligations under, or
the validity or enforceability of, this Agreement or any of the Basic
Documents, or (D) seeking to adversely affect the federal income tax or other
federal, state or local tax attributes of the Notes, the Residual Certificates
or the Class S Certificates.
SECTION 2.11. Federal Income Tax Allocations(a) . For so long as the
Trust has a single owner for federal income tax purposes, it will, pursuant to
Treasury Regulations promulgated under section 7701 of the Code, be
disregarded as an entity distinct from the Residual Certificateholder for all
federal income tax purposes. Accordingly, for federal income tax purposes, the
Residual Certificateholder will be treated as (i) owning all assets owned by
the
6
Trust, (ii) having incurred all liabilities incurred by the Trust, and (iii)
all transactions between the Trust and the Residual Certificateholder will be
disregarded.
(b) Neither the Owner Trustee nor any Residual Certificateholder
will, under any circumstances, and at any time, make an election on IRS Form
8832 or otherwise, to classify the Trust as an association taxable as a
corporation for federal, state or any other applicable tax purpose.
(c) In the event that the Trust is treated as a partnership for
Federal income tax purposes, net income of the Trust for any month as
determined for Federal income tax purposes (and each item of income, gain,
loss, credit and deduction entering into the computation thereof) shall be
allocated: (i) to the extent of available net income, among the Residual
Certificateholders and the Holders of any other securities treated as equity
in the partnership as of the first Record Date following the end of such
month, in proportion to their ownership of principal amount of Residual
Certificates and any such securities on such date; (ii) to the Sponsor, to the
extent of any remaining net income.
If the net income of the Trust for any month is insufficient for the
allocations described in clause (i) above, subsequent net income shall first
be allocated to make up such shortfall before being allocated as provided in
clause (ii). Net losses of the Trust, if any, for any month as determined for
Federal income tax purposes (and each item of income, gain, loss, credit and
deduction entering into the computation thereof) shall be allocated among the
Residual Certificateholders and the Holders of any other securities treated as
equity in the partnership as of the Record Date in proportion to their
ownership percentage of principal amount of Residual Certificates and any such
securities, respectively, on such Record Date until the principal balance of
the Residual Certificates and any such securities is reduced to zero. The
Sponsor is authorized to modify the allocations in this paragraph if necessary
or appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to the Residual Certificateholders and the
Holders of any other securities treated as equity in the partnership, or as
otherwise required by the Code.
SECTION 2.12. Covenants of the Sponsor. The Sponsor agrees and
covenants for the benefit of each Residual Certificateholder, each Holder of a
Class S Certificate, the Insurer and the Owner Trustee, during the term of
this Agreement, and to the fullest extent permitted by applicable law, that:
(a) it shall not create, incur or suffer to exist any indebtedness or
engage in any business, except, in each case, as permitted by its certificate
of incorporation and the Basic Documents;
(b) it shall not, for any reason, institute proceedings for the Trust
to be adjudicated a bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Trust, or file a petition
seeking or consenting to reorganization or relief under any applicable federal
or state law relating to the bankruptcy of the Trust, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Trust or a substantial part of the property of
the Trust or cause or permit the Trust to make any assignment for the benefit
of creditors, or admit in writing the inability of the Trust to pay its
7
debts generally as they become due, or declare or effect a moratorium on the
debt of the Trust or take any action in furtherance of any such action;
(c) it shall obtain from each counterparty to each Basic Document to
which it or the Trust is a party and each other agreement entered into on or
after the date hereof to which it or the Trust is a party, an agreement by
each such counterparty that prior to the occurrence of the event specified in
Section 10.1(e) such counterparty shall not institute against, or join any
other Person in instituting against, it or the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or any state of the
United States; and
(d) it shall not, for any reason, withdraw or attempt to withdraw
from this Agreement, dissolve, institute proceedings for it to be adjudicated
a bankrupt or insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against it, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of it or a substantial part
of its property, or make any assignment for the benefit of creditors, or admit
in writing its inability to pay its debts generally as they become due, or
declare or effect a moratorium on its debt or take any action in furtherance
of any such action.
SECTION 2.13. Covenants of the Residual Certificateholders. Each
Residual Certificateholder agrees:
(a) to be bound by the terms and conditions of the Residual
Certificates and of this Agreement, including any supplements or amendments
hereto and to perform the obligations of a Residual Certificateholder as set
forth therein or herein, in all respects as if it were a signatory hereto.
This undertaking is made for the benefit of the Trust, the Owner Trustee, the
Insurer and all other Residual Certificateholders present and future;
(b) to hereby appoint the Sponsor as such Residual
Certificateholder's agent and attorney-in-fact to sign any federal income tax
information return filed on behalf of the Trust, if any, and agree that, if
requested by the Trust, it will sign such federal income tax information
return in its capacity as holder of an interest in the Trust. Each Residual
Certificateholder also hereby agrees that in its tax returns it will not take
any position inconsistent with those taken in any tax returns that may be
filed by the Trust;
(c) if such Residual Certificateholder is other than an individual or
other entity holding its Residual Certificate through a broker who reports
securities sales on Form 1099-B, to notify the Owner Trustee of any transfer
by it of a Residual Certificate in a taxable sale or exchange, within 30 days
of the date of the transfer; and
(d) until the completion of the events specified in Section 10.1(e),
not to, for any reason, institute proceedings for the Trust or the Sponsor to
be adjudicated a bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Trust, or file a petition
seeking or consenting to reorganization or relief under any applicable federal
or state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee,
8
trustee, sequestrator (or other similar official) of the Sponsor or the Trust
or a substantial part of its property, or cause or permit the Sponsor or the
Trust to make any assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts generally as they become due, or
declare or effect a moratorium on its debt or take any action in furtherance
of any such action.
Except as provided in Section 2.13, and notwithstanding any other
provision to the contrary in this Agreement, no Residual Certificateholder
other than the Sponsor in its capacity as the "Sponsor" shall be deemed to
have adopted, be bound by, or succeed in any way to any representation by, or
duty of indemnification by or any other duty of, the Sponsor, including those
contained in Sections 2.10, 2.12, 3.5, 4.6, 9.2 or elsewhere herein.
ARTICLE III
[Reserved]
ARTICLE IV
Ownership of Trust Property; Residual Certificates and Transfer of Interests
SECTION 4.1. Trust Property Ownership. Upon the formation of the
Trust by the contribution by the Sponsor pursuant to Section 2.5, the Owner
Trustee, contemporaneously therewith, having full power, authority, and
authorization to do so, has executed, authenticated, dated, issued, and
delivered, in the name and on behalf of the Trust, to the Sponsor, one (1) or
more Residual Certificates representing in the aggregate a 100% interest in
the Trust, and has registered such Residual Certificate(s) on the Certificate
Register in the name of the Sponsor. The Sponsor shall be the sole beneficiary
of the Trust. Such Residual Certificate(s) are duly authorized, validly
issued, and entitled to the benefits of this Agreement. For so long as the
Sponsor shall own such 100% interest in the Trust, the Sponsor shall be the
sole beneficial owner of the Trust. The Sponsor shall at all times keep and
own a Residual Certificate or Residual Certificates representing no less than
1% interest, and at no time will the Sponsor sell or alienate its interest
represented by Residual Certificate(s) in such a way as to reduce its
aggregate beneficial ownership in the Residual Certificates to less than 1%.
SECTION 4.2. The Residual Certificates and Class S Certificates.
Except for Residual Certificates issued to the Sponsor, the Residual
Certificates shall be issued in denominations of $1,000 and integral multiples
of $1,000 in excess thereof. Except for Class S Certificates issued to the
Sponsor, the Class S Certificates shall be executed in denominations of $1,000
and integral multiples of $1,000 in excess thereof. The Residual Certificates
and Class S Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee. Residual
Certificates and Class S Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign on behalf of the Trust, shall be 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 Certificates and Class S
Certificates or did not hold such offices at the date of authentication and
delivery of such Residual Certificates. A transferee of a Residual Certificate
or a Class S
9
Certificate shall become a Residual Certificateholder or Class S
Certificateholder, respectively, and shall be entitled to the rights and
subject to the obligations of a Residual Certificateholder or Class S
Certificateholder, as appropriate, hereunder, upon due registration of such
Residual Certificate or Class S Certificate in such transferee's name pursuant
to Section 4.4.
SECTION 4.3. Authentication of Residual Certificates and Class S
Certificates. Concurrently with the initial sale of the Mortgage Loans to the
Trust pursuant to the Sale and Servicing Agreement, the Owner Trustee shall
cause the Residual Certificates and Class S Certificates to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order
of the Sponsor, signed by its chairman of the board, its president or any vice
president, its treasurer or any assistant treasurer without further corporate
action by the Sponsor, in authorized denominations. No Residual Certificate or
Class S Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on
such Residual Certificate or Class S Certificate a certificate of
authentication substantially in the form set forth in Exhibit A (with respect
to a Class S Certificate) or Exhibit B (with respect to a Residual
Certificate), executed by the Owner Trustee, by manual signature; such
authentication shall constitute conclusive evidence that such Residual
Certificate or Class S Certificate shall have been duly authenticated and
delivered hereunder. All Residual Certificates and Class S Certificates shall
be dated the date of their authentication.
SECTION 4.4. Registration of Transfer and Exchange of Residual
Certificates and Class S Certificates. The Certificate Registrar shall keep or
cause to be kept, at the office or agency maintained pursuant to Section 4.8,
a Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Owner Trustee shall provide for the registration of
Residual Certificates and of transfers and exchanges of Residual Certificates
and Class S Certificates as herein provided. The Owner Trustee shall be the
initial Certificate Registrar.
In furtherance of and not in limitation of the foregoing, each
Residual Certificateholder, by acceptance of its Residual Certificate,
specifically acknowledges that it has no right to or interest in any monies at
any time held in the Reserve Fund prior to the release of such monies pursuant
to Section 8.7(d)(xiv) of the Indenture, such monies being held in trust for
the benefit of the Noteholders and the Insurer. Notwithstanding the foregoing,
in the event that it is ever determined that the monies held in the Reserve
Fund constitute a pledge of collateral, then the provisions of the Sale and
Servicing Agreement shall be considered to constitute a security agreement and
the Sponsor and the Residual Certificateholders hereby grant to the Indenture
Trustee and the Insurer a first priority perfected security interest in such
amounts. In addition, each Residual Certificateholder, by acceptance of its
Residual Certificate, hereby appoints the Sponsor as its agent to pledge a
first priority perfected security interest in the Reserve Fund, and any
amounts held therein from time to time to the Indenture Trustee and the
Insurer 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 Insurer shall consider reasonably necessary in order to
perfect the Indenture Trustee's security interest in the Mortgage Loans.
SECTION 4.5. Mutilated, Destroyed, Lost or Stolen Residual
Certificates or Class S Certificates. If (a) any mutilated Residual
Certificate or Class S Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
10
satisfaction of the destruction, loss or theft of any Residual Certificate or
Class S Certificate and (b) there shall be delivered to the Certificate
Registrar, the Owner Trustee and the Insurer such security or indemnity as may
be required by them to save each of them harmless, then in the absence of
notice that such Residual Certificate or Class S Certificate shall have been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Residual Certificate or Class S Certificate, a new Residual Certificate or
Class S Certificate, respectively, of like class, tenor and denomination. In
connection with the issuance of any new Residual Certificate or Class S
Certificate under this Section, the Owner Trustee or the Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Residual Certificate or Class S Certificate issued pursuant to this Section
shall constitute conclusive evidence of an ownership interest in the Trust, as
if originally issued, whether or not the lost, stolen or destroyed Residual
Certificate shall be found at any time.
SECTION 4.6. Persons Deemed Residual Certificateholders and Class S
Certificateholders. Every Person by virtue of becoming a Residual
Certificateholder or Class S Certificateholder in accordance with this
Agreement and the rules and regulations of the Certificate Registrar shall be
deemed to be bound by the terms of this Agreement. Prior to due presentation
of a Residual Certificate or Class S Certificate for registration of transfer,
the Owner Trustee, the Certificate Registrar and the Insurer and any agent of
the Owner Trustee, the Certificate Registrar and the Insurer, may treat the
Person in whose name any Residual Certificate or Class S Certificate shall be
registered in the Certificate Register as the owner of such Residual
Certificate or Class S Certificate for the purpose of receiving distributions
pursuant to the Sale and Servicing Agreement and the Indenture and for all
other purposes whatsoever, and none of the Owner Trustee, the Certificate
Registrar or the Insurer nor any agent of the Owner Trustee, the Certificate
Registrar or the Insurer shall be bound by any notice to the contrary.
SECTION 4.7. Access to List of Residual Certificateholders' and Class
S Certificateholders' Names and Addresses. The Owner Trustee shall furnish or
cause to be furnished to the Servicer, the Sponsor or the Insurer, within 15
days after receipt by the Owner Trustee of a request therefor from such Person
in writing, a list, of the names and addresses of the Residual
Certificateholders or Class S Certificateholders as of the most recent Record
Date. If three or more Holders of Residual Certificates or one or more Holders
of Residual Certificates evidencing not less than 25% by Percentage Interest
apply in writing to the Owner Trustee, and such application states that the
applicants desire to communicate with other Residual Certificateholders or
with any Class S Certificateholders with respect to their rights under this
Agreement or under the Residual Certificates or Class S Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the Owner Trustee shall, within five Business Days
after the receipt of such application, afford such applicants access during
normal business hours to the current list of Residual Certificateholders. Each
Holder, by receiving and holding a Residual Certificate or Class S
Certificate, shall be deemed to have agreed not to hold any of the Sponsor,
the Servicer, the Owner Trustee or the Insurer or any agent thereof
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
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SECTION 4.8. Maintenance of Office or Agency. The Owner Trustee shall
maintain in Wilmington, Delaware an office or offices or agency or agencies
where Residual Certificates and Class S Certificates 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, the Class S
Certificates and the Basic Documents may be served. The Owner Trustee
initially designates its Corporate Trust Office for such purposes. The Owner
Trustee shall give prompt written notice to the Sponsor, the Residual
Certificateholders, Class S Certificateholders and the Insurer of any change
in the location of the Certificate Register or any such office or agency.
SECTION 4.9. ERISA Restrictions. Neither the Residual Certificates
nor the Class S Certificates may be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Code, or (iii) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding its beneficial ownership interest in its
Residual Certificate or Class S Certificate, the Holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan.
SECTION 4.10. Restrictions on Transfer of Residual Certificates and
Class S Certificates.
(a) The Residual Certificates and Class S Certificates shall be
assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise
conveyed (collectively, for purposes of this Section 4.10 and any other
Section referring to the Residual Certificates or Class S Certificates,
"transferred" or a "transfer") only in accordance with this Section 4.10.
(b) No transfer of a Residual Certificate or Class S 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 Residual Certificate or Class S Certificate to
the Sponsor, the Indenture Trustee shall require (i) the transferee to execute
an investment letter acceptable to and in form and substance satisfactory to
the Indenture Trustee and the Insurer certifying to the Indenture Trustee and
the Insurer the facts surrounding such transfer, which investment letter shall
not be an expense of the Indenture Trustee or the Insurer or (ii) if the
investment letter is not delivered, a written Opinion of Counsel acceptable to
and in form and substance satisfactory to the Indenture Trustee, the Insurer
and the Sponsor that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor from said Act or is
being made pursuant to said Act, which Opinion of Counsel shall not be an
expense of the Indenture Trustee, the Insurer or the Sponsor. The Holder of a
Residual Certificate or Class S Certificate desiring to effect such transfer
shall, and does hereby agree to, indemnify the Sponsor and the Insurer against
any liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws.
(c) The Residual Certificate, the Class S Certificate and any
interests therein shall not be transferred except upon satisfaction of the
following conditions precedent: (i) the Person that acquires a Residual
Certificate or Class S Certificate shall (A) be organized and existing under
the laws of the United States of America or any state thereof or the District of
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Columbia; (B) expressly assume, by an agreement supplemental hereto, executed
and delivered to the Indenture Trustee and the Insurer, the performance of
every covenant and obligation of the Sponsor hereunder and (C) as part of its
acquisition of a Residual Certificate or Class S Certificate, acquire all
rights of the Sponsor or any transferee under this Section 4.10(c) to amounts
payable to such Sponsor or such transferee under Section 8.7(d)(xiv) of the
Indenture (with respect to the Residual Certificate) or Section 8.7(d)(iv) of
the Indenture (with respect to the Class S Certificate) (ii) the Holder of the
Residual Certificates and Class S Certificates shall deliver to the Indenture
Trustee and the Insurer an Officer's Certificate stating that such transfer
and such supplemental agreement comply with this Section 4.10(c) and that all
conditions precedent provided by this Section 4.10(c) have been complied with
and an Opinion of Counsel stating that all conditions precedent provided by
this Section 4.10(c) have been complied with, and the Indenture Trustee may
conclusively rely on such Officer's Certificate, shall have no duty to make
inquiries with regard to the matters set forth therein and shall incur no
liability in so relying; (iii) the Holder of the Residual Certificates or
Class S Certificate shall deliver to the Indenture Trustee and the Insurer a
letter from each Rating Agency confirming that its rating of the Notes, after
giving effect to such transfer, will not be reduced or withdrawn without
regard to the Policy; (iv) the transferee of the Residual Certificates or
Class S Certificate shall deliver to the Indenture Trustee and the Insurer an
Opinion of Counsel to the effect that (a) such transfer will not adversely
affect the treatment of the Notes after such transfer as debt for federal and
applicable state income tax purposes, (b) such transfer will not result in the
Trust being subject to tax at the entity level for federal or applicable state
tax purposes, (c) such transfer will not have any material adverse impact on
the federal or applicable state income taxation of a Noteholder, any Residual
Certificateholder or any Class S Certificateholder and (d) such transfer will
not result in the arrangement created by this Agreement or any "portion" of
the Trust, being treated as a taxable mortgage pool as defined in Section
7701(i) of the Code; (v) all filings and other actions necessary to continue
the perfection of the interest of the Trust in the Mortgage Loans and the
other property conveyed hereunder shall have been taken or made and (vi) the
Insurer shall have consented to such transfer. Notwithstanding the foregoing,
the requirement set forth in subclause (i)(A) of this Section 4.10(c) shall
not apply in the event the Indenture Trustee shall have received a letter from
each Rating Agency confirming that its rating of the Notes, after giving
effect to a proposed transfer to a Person that does not meet the requirement
set forth in subclause (i)(A), shall not be reduced or withdrawn without
regard to the Policy. Notwithstanding the foregoing, the requirements set
forth in this paragraph (c) shall not apply to the initial issuance of the
Residual Certificates or Class S Certificates to the Sponsor.
Except for the initial issuance of the Residual Certificate and Class
S Certificate to the Sponsor, no transfer of a Residual Certificate or Class S
Certificate shall be made unless the Indenture Trustee and the Insurer shall
have received a representation letter from the transferee of such Residual
Certificate or Class S Certificate, acceptable to and in form and substance
satisfactory to the Indenture Trustee and the Insurer to the effect that such
transferee is not a Benefit Plan, nor a Person acting on behalf of or using
the assets of a Benefit Plan, which representation letter shall not be an
expense of the Indenture Trustee or the Insurer.
(d) No transfer or pledge of the Residual Certificates shall result
in more than 98 other holders of Residual Certificates.
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(e) No transfer or pledge of (i) any Residual Certificate or (ii) any
portion of a transferor's interest in any Residual Certificate shall be made
to a proposed holder unless transferor simultaneously transfers to such
proposed holder (i) the Class S Certificate (ii) or an analogous portion (by
percentage) of the transferor's interest in the Class S Certificate,
respectively. No Class S Certificate may be transferred to any proposed holder
except in connection with the transfer of a Residual Certificate made in
accordance with the terms of the preceding sentence.
SECTION 4.11. Acceptance of Obligations. The Sponsor, by its
acceptance of the Class S Certificates and the Residual Certificates, agrees
to be bound by and to perform all the duties of the Sponsor set forth in this
Agreement.
SECTION 4.12. Distributions on Class S Certificates and Residual
Certificates. The Holders of the Class S Certificates and the Holders of the
Residual Certificates will be entitled to distributions on each Payment Date,
as provided in the Sale and Servicing Agreement and the Indenture.
ARTICLE V
Voting Rights and Other Actions
SECTION 5.1. Prior Notice to Holders with Respect to Certain Matters.
With respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Residual Certificateholders and the Insurer in writing
of the proposed action and the Residual Certificateholders and the Insurer
shall not have notified the Owner Trustee in writing prior to the 30th day
after such notice is given that such Residual Certificateholders or the
Insurer have withheld consent or provided alternative direction:
(a) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Business
Trust Statute or unless such amendment would not materially and adversely
affect the interests of the Holders);
(b) the amendment of the Indenture by a supplemental Indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental Indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Residual
Certificateholders; or
(d) except pursuant to Section 9.01 of the Sale and Servicing
Agreement, the amendment, change or modification of the Sale and Servicing
Agreement, except to cure any ambiguity or defect or to amend or supplement
any provision in a manner that would not materially adversely affect the
interests of the Residual Certificateholders.
The Owner Trustee shall notify the Residual Certificateholders in writing of any
appointment of a successor Security Registrar, or Certificate Registrar within
five Business Days thereof.
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SECTION 5.2. Action by Residual Certificateholders with Respect to
Certain Matters.
(a) Upon the written request from time to time of Residual
Certificateholder(s) evidencing not less than 51% by Percentage Interest and
subject to the prior review by the Insurer, the Owner Trustee shall take
appropriate actions to remove Mortgage Loans from any Pool pursuant to Section
2.07 of the Sale and Servicing Agreement. The Owner Trustee shall notify the
Insurer of any such proposed removal. The Owner Trustee will take such actions
with respect to removal of Mortgage Loans as may from time to time be proposed
by the Residual Certificateholders pursuant to Sections 5.2(b) and 5.5.
(b) Upon the written request of any Residual Certificateholder (a
"Proposer"), the Owner Trustee shall distribute promptly to all Residual
Certificateholders any request for action or consent of Residual
Certificateholders submitted by such Proposer, with a copy to the Manager. The
Owner Trustee shall provide a reasonable method for collecting responses to
such request and shall tabulate and report the results thereof to the Residual
Certificateholders and the Manager. The Owner Trustee shall have no
responsibility or duty to determine if any such proposed action or consent is
permitted under the terms of this Agreement or applicable law.
SECTION 5.3. Action with Respect to Bankruptcy. Until one year and
one day following the day on which the Notes have been paid in full, the Owner
Trustee shall not have the power to, and shall not, commence any proceeding or
other actions contemplated by Section 2.12(b) relating to the Trust without
the prior written consent of the Insurer. Until one year and one day following
the day on which the Notes have been paid in full, all amounts due to the
Insurer under the Insurance Agreement have been paid in full, the Policy has
terminated and the Indenture Trustee has surrendered the Policy to the
Insurer, the Owner Trustee shall not have the power to, and shall not,
commence any proceeding or other actions contemplated by Section 2.12(b)
relating to the Trust without the prior written consent of all of the Residual
Certificateholders and the Insurer, and the delivery to the Owner Trustee by
each such Residual Certificateholder and the Insurer, of a certificate
certifying that such Residual Certificateholder reasonably believes that the
Trust is insolvent.
SECTION 5.4. Restrictions on Residual Certificateholders' Power.
(a) Neither the Residual Certificateholders nor the Insurer shall
direct the Owner Trustee to take or refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the Basic Documents or would be
contrary to Section 2.3 or otherwise contrary to law nor shall the Owner
Trustee be obligated to follow any such direction, if given.
(b) Neither the Insurer nor any Residual Certificateholder (other
than the Sponsor as sole Residual Certificateholder) shall have any right by
virtue or by availing itself of any provisions of this Agreement to institute
any suit, action, or proceeding in equity or at law upon or under or with
respect to this Agreement or any Basic Document, unless such party is the
Instructing Party pursuant to Section 7.3 and unless such party previously
shall have given to the Owner Trustee a written notice of default and of the
continuance thereof, as provided in this Agreement, and also unless Residual
Certificateholders evidencing not less than 25% by
15
Percentage Interest or the Insurer shall have made written request upon the
Owner Trustee to institute such action, suit or proceeding in its own name as
Owner Trustee under this Agreement and shall have offered to the Owner Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Owner Trustee, for 30
days after its receipt of such notice, request, and offer of indemnity, shall
have neglected or refused to institute any such action, suit, or proceeding,
and during such 30-day period no request or waiver inconsistent with such
written request has been given to the Owner Trustee pursuant to and in
compliance with this Section or Section 7.3; it being understood and intended,
and being expressly covenanted by each Residual Certificateholder with every
other Residual Certificateholder, the Owner Trustee or the Insurer, that no
Insurer or one or more Holders of Residual Certificates shall have any right
in any manner whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb, or prejudice the rights of
the Holders of any other of the Residual Certificates, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Agreement, except in the manner provided in this Agreement
and for the equal, ratable, and common benefit of all Residual
Certificateholders and the Insurer. For the protection and enforcement of the
provisions of this Section 5.4, each and every Residual Certificateholder, the
Owner Trustee and the Insurer shall be entitled to such relief as can be given
either at law or in equity.
SECTION 5.5. Majority Control. No Residual Certificateholder shall
have any right to vote or in any manner otherwise control the operation and
management of the Trust except as expressly provided in this Agreement. Except
as expressly provided herein, any action that may be taken by the Residual
Certificateholders under this Agreement may be taken by the Holders of
Residual Certificates evidencing not less than a 51% by Percentage Interest of
such class. Except as expressly provided herein, any written notice of the
Residual Certificateholders delivered pursuant to this Agreement shall be
effective if signed by Residual Certificateholders evidencing not less than a
51% Percentage Interest in such Class at the time of the delivery of such
notice.
SECTION 5.6. Rights of the Insurer. Notwithstanding anything to the
contrary in the Basic Documents, without the prior written consent of the
Insurer, the Owner Trustee shall not (i) remove the Servicer, (ii) initiate
any claim, suit or proceeding by the Trust or compromise any claim, suit or
proceeding brought by or against the Trust, other than with respect to the
enforcement of any Mortgage Loan or any rights of the Trust thereunder, (iii)
authorize the merger or consolidation of the Trust with or into any other
business trust or other entity, (iv) amend the Certificate of Trust or (v)
amend this Agreement in accordance with Section 12.1 of this Agreement.
ARTICLE VI
Certain Duties
SECTION 6.1. Accounting and Records to the Noteholders, Class S
Certificateholders, Residual Certificateholders, the Internal Revenue Service
and Others. Subject to Sections 8.01(b)(iii) and 8.01(c) of the Sale and
Servicing Agreement, the Sponsor shall (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, including, without limitation, the allocations of net
income
16
under Section 2.11 hereof, (b) deliver (or cause to be delivered) to each
Class S Certificateholder and each Residual Certificateholder, as may be
required by the Code and applicable Treasury Regulations, such information as
may be required (including Schedule K-1, if applicable) to enable each Class S
Certificateholder and each Residual Certificateholder to prepare its Federal
and state income tax returns, (c) file or cause to be filed, if necessary,
such tax returns relating to the Trust (including a partnership information
return, Form 1065), and direct the Owner Trustee or the Servicer, as the case
may be, to make such elections as may from time to time be required or
appropriate under any applicable state or Federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
branch, or if applicable, as a partnership, for Federal income tax purposes
and (d) collect or cause to be collected any withholding tax as described in
and in accordance with Section 8.01(b)(ii) of the Sale and Servicing Agreement
with respect to income or distributions to Class S Certificateholders and
Residual Certificateholders and the appropriate forms relating thereto. The
Owner Trustee or the Servicer, as the case may be, shall make all elections
pursuant to this Section as directed in writing by the Sponsor. The Owner
Trustee shall sign all tax information returns, if any, filed pursuant to this
Section 6.1 and any other returns as may be required by law, and in doing so
shall rely entirely upon, and shall have no liability for information provided
by, or calculations provided by, the Sponsor or the Servicer. The Sponsor will
direct the Owner Trustee and the Owner Trustee shall elect under Section 1278
of the Code to include in income currently any market discount that accrues
with respect to the Mortgage Loans. The Sponsor shall not direct the Owner
Trustee to make, and the Owner Trustee shall not make, the election provided
under Section 754 of the Code.
SECTION 6.2. Signature on Returns; Tax Matters Partner.
(a) Notwithstanding the provisions of Section 6.1 and in the event
that the Trust is characterized as a partnership, the Owner Trustee shall sign
on behalf of the Trust the tax returns of the Trust, unless applicable law
requires a Residual Certificateholder to sign such documents, in which case
such documents shall be signed by the Sponsor.
(b) In the event that the Trust is characterized as a partnership,
the Sponsor shall be the "tax matters partner" of the Trust pursuant to the
Code.
SECTION 6.3. Underwriting Agreement. The Servicer is hereby
authorized to execute and deliver the Underwriting Agreement with respect to
the Notes.
ARTICLE VII
Authority and Duties of Owner Trustee
SECTION 7.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is
named as a party and each certificate or other document attached as an exhibit
to or contemplated by the Basic Documents to which the Trust is named as a
party and any amendment thereto, in each case, in such form as the Sponsor
shall approve as evidenced conclusively by the Owner Trustee's execution
thereof, and on behalf of the Trust, to direct the Indenture Trustee to
authenticate and deliver Class A-1 Notes in the aggregate principal amount of
$102,736,000, Class A-2 Notes in the aggregate principal amount of $98,584,000
and Class A-3 Notes in the aggregate principal
17
amount of $97,966,000. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further authorized
from time to time to take such action as the Instructing Party recommends with
respect to the Basic Documents so long as such activities are consistent with
the terms of the Basic Documents. The Owner Trustee may rely on the Manager to
carry out any action that the Owner Trustee is authorized or directed to
perform hereunder, to the extent permitted by the Management Agreement.
SECTION 7.2. General Duties. 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 to administer the Trust in the
interest of the Holders, subject to the Basic Documents 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 Basic Documents to the extent the Servicer has agreed
in the Sale and Servicing Agreement to perform any act or to discharge any
duty of the Trust or the Owner Trustee hereunder or under any Basic Document,
and the Owner Trustee shall not be liable for the default or failure of the
Servicer to carry out its obligations under the Sale and Servicing Agreement
or the failure of the Manager to carry out its obligations under the
Management Agreement.
SECTION 7.3. Action upon Instruction.
(a) Subject to Article V, the Insurer (the "Instructing Party") shall
have the exclusive right to direct the actions of the Owner Trustee in the
management of the Trust, so long as such instructions are not inconsistent
with the express terms set forth herein or in any Basic Document. The
Instructing Party shall not instruct the Owner Trustee in a manner
inconsistent with this Agreement or the Basic Documents. In acting in
accordance with the direction of the Insurer pursuant to this Section or
pursuant to Article V, the Owner Trustee shall not be deemed to (i) owe any
fiduciary obligation to the Insurer or (ii) have violated any fiduciary
responsibility to the Residual Certificateholders.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any Basic Document or is otherwise contrary
to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, the Owner Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the
Instructing Party 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 instruction of the Instructing Party received, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate instruction within ten days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, notwithstanding any other provision of this
Agreement, take or refrain from taking
18
such action, not inconsistent with this Agreement or the Basic Documents, as
it shall deem to be in the best interests of the Residual Certificateholders
and shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document 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 give
notice (in such form as shall be appropriate under the circumstances) to the
Instructing Party requesting instruction and, notwithstanding any other
provision of this Agreement, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or
the Basic Documents, as it shall deem to be in the best interests of the
Residual Certificateholders, and shall have no liability to any Person for
such action or inaction.
SECTION 7.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain
from taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided by
the terms of this Agreement or in any document or written instruction received
by the Owner Trustee pursuant to Section 7.3; and no implied duties or
obligations shall be read into this Agreement or any Basic Document against
the Owner Trustee. The Owner Trustee shall have no responsibility for filing
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Agreement or any Basic Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take
all action as may be necessary to discharge any Liens on any part of the Owner
Trust Estate that result from actions by, or claims against, the Owner Trustee
(solely in its individual capacity) and that are not related to the ownership
or the administration of the Owner Trust Estate.
SECTION 7.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction delivered
to the Owner Trustee pursuant to Section 7.3.
SECTION 7.6. Restrictions. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation
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or a publicly traded partnership for Federal income tax purposes. The Residual
Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
ARTICLE VIII
Concerning the Owner Trustee
SECTION 8.1. Acceptance of Trust and Duties. The Owner Trustee
accepts the trust hereby created and agrees to perform its duties hereunder
with respect to such trust but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, bad faith or negligence, (ii) in
the case of the inaccuracy of any representation or warranty contained in
Section 8.3 expressly made by the Owner Trustee in its individual capacity,
(iii) for liabilities arising from the failure of the Owner Trustee to perform
obligations expressly undertaken by it in the last sentence of Section 7.4
hereof, or (iv) for taxes, fees or other charges on, based on or measured by,
any fees, commissions or compensation received by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment,
not constituting negligence, made by a Responsible Officer of the Owner
Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it if such action or omission is in accordance
with the instructions of the Instructing Party, the Sponsor, the Servicer or
any Residual Certificateholder pursuant to the terms hereof;
(c) or risk funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or under any Basic
Document if the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured or provided to it;
(d) by or arising under any of the Basic Documents, including the
principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof
by the Sponsor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the validity
or sufficiency of the Basic Documents, other than the certificates of
authentication on the Notes, the Residual Certificates and the Class S
Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to the Sponsor, the Insurer, the Indenture
Trustee, any Residual Certificateholder or any Class S Certificateholder,
other than as expressly provided for herein and in the Basic Documents;
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(f) the Owner Trustee shall not be liable for the default or
misconduct of the Sponsor, the Insurer, the Indenture Trustee, or the Servicer
under any of the Basic Documents or otherwise and the Owner Trustee shall have
no obligation or liability to perform the obligations under this Agreement or
the Basic Documents that are required to be performed by the Sponsor under
this Agreement, by the Indenture Trustee under the Indenture or the Servicer
under the Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation to
this Agreement or any Basic Document, at the request, order or direction of
the Instructing Party or any of the Residual Certificateholders, unless such
Instructing Party or Residual Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or thereby.
The right of the Owner Trustee to perform any discretionary act enumerated in
this Agreement or in any Basic Document shall not be construed as a duty, and
the Owner Trustee shall not be answerable for other than its gross negligence,
bad faith or willful misconduct in the performance of any such act.
SECTION 8.2. Furnishing of Documents. The Owner Trustee shall furnish
to the Residual Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
SECTION 8.3. Representations and Warranties. The Owner Trustee hereby
represents and warrants, in its individual capacity, to the Sponsor and the
Holders that:
(a) It is a Delaware banking corporation, duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate 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.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware state law, governmental rule or regulation governing
the banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to which
it is a party or by which any of its properties may be bound.
SECTION 8.4. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, 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
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board of directors or other governing body of any corporate party as
conclusive evidence that such resolution has been duly adopted by such body
and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein,
the Owner Trustee may for all purposes hereof rely on a certificate, signed by
the president or any vice president or by the treasurer, secretary or other
authorized officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, and (ii)
may consult with counsel, accountants and other skilled persons to be selected
with reasonable care and employed by it. The Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the opinion or advice of any such counsel, accountants or other such persons
and according to such opinion not contrary to this Agreement or any Basic
Document.
SECTION 8.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 8.6. Owner Trustee Not Liable for Notes, Residual
Certificates, Class S Certificates or Mortgage Loans. The recitals contained
herein and in the Notes, the Residual Certificates and the Class S
Certificates (other than the signature and countersignature of the Owner
Trustee on the Notes, the Residual Certificates and the Class S Certificates,
respectively), shall be taken as the statements of the Sponsor 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 Basic Document, of the Notes (other than the signature and
countersignature of the Owner Trustee on the), of the Residual Certificates
(other than the signature and countersignature of the Owner Trustee on the
Residual Certificates) or of the Class S Certificates (other than the
signature and countersignature of the Owner Trustee on the Class S
Certificates), or of any Mortgage Loan 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 Mortgage Loan, or the
perfection and priority of any security interest created by any Mortgage Loan
or the maintenance of any such perfection and priority, or for or with respect
to the sufficiency of the Owner Trust Estate or its ability to generate the
payments to be distributed to Residual Certificateholders under this Agreement
or the Noteholders or Class S Certificateholders under the Indenture,
including, without limitation: the existence, condition and ownership of any
Mortgage Loan; the existence and enforceability of any insurance thereon; the
existence and contents of any Mortgage Loan on any computer or other record
thereof; the validity of the assignment of any Mortgage Loan to the Trust or
of any intervening assignment; the completeness of any Mortgage Loan; the
performance or enforcement of any Mortgage Loan; the compliance by the
Sponsor, the Servicer or any other Person with any warranty or representation
made under any Basic Document or in any related document or the accuracy of
22
any such warranty or representation or any action of the Indenture Trustee or
the Servicer or any subservicer taken in the name of the Owner Trustee.
SECTION 8.7. Owner Trustee May Own Notes, Residual Certificates and
Class S Certificates. The Owner Trustee in its individual or any other
capacity may become the owner or pledgee of Notes, Residual Certificates or
Class S Certificates and may deal with the Sponsor, the Indenture Trustee and
the Servicer in banking transactions with the same rights as it would have if
it were not Owner Trustee.
SECTION 8.8. Payments from Owner Trust Estate. All payments to be
made by the Owner Trustee under this Agreement or any of the Basic Documents
to which the Trust or the Owner Trustee is a party shall be made only from the
income and proceeds of the Owner Trust Estate and only to the extent that the
Owner Trust shall have received income or proceeds from the Owner Trust Estate
to make such payments in accordance with the terms hereof. Wilmington Trust
Company, or any successor thereto, in its individual capacity, shall not be
liable for any amounts payable under this Agreement or any of the Basic
Documents to which the Trust or the Owner Trustee is a party.
SECTION 8.9. Doing Business in Other Jurisdictions. Notwithstanding
anything contained to the contrary, neither Wilmington Trust Company or any
successor thereto, 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, even after the appointment of a co-trustee or separate trustee in
accordance with Section 11.5 hereof, (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 the State of Delaware becoming payable by Wilmington Trust Company (or
any successor thereto); or (iii) subject Wilmington Trust Company (or any
successor thereto) 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 Wilmington Trust Company (or any successor
thereto) or the Owner Trustee, as the case may be, contemplated hereby.
ARTICLE IX
Compensation of Owner Trustee
SECTION 9.1. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder the Owner Trustee
Fees, and the Owner Trustee shall be entitled to be reimbursed by the Sponsor
for its other reasonable expenses hereunder, including 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 its duties hereunder and under the
Basic Documents.
SECTION 9.2. Indemnification. The Sponsor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee (in its individual and
trust capacities) and its officers, directors, successors, assigns, agents and
servants (collectively, the "Indemnified
23
Parties") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of
any kind and nature whatsoever (collectively, "Expenses") which may (in its
trust or individual capacities) at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way
relating to or arising out of this Agreement, the Basic Documents, the Owner
Trust Estate, the administration of the Owner Trust Estate or the action or
inaction of the Owner Trustee hereunder, except only that the Sponsor shall
not be liable for or required to indemnify the Owner Trustee from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 8.1. The indemnities contained in this Section and the
rights under Section 9.1 shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement. In any 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 Sponsor which approval shall not be unreasonably withheld.
SECTION 9.3. Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article IX shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
SECTION 9.4. Non-recourse Obligations. Notwithstanding anything in
this Agreement or any Basic Document, the Owner Trustee agrees in its
individual capacity and in its capacity as Owner Trustee for the Trust that
all obligations of the Trust to the Owner Trustee individually or as Owner
Trustee for the Trust shall be recourse to the Owner Trust Estate only and
specifically shall not be recourse to the assets of any Residual
Certificateholder.
ARTICLE X
Termination of Trust Agreement
SECTION 10.1. Termination of Trust Agreement.
(a) This Agreement and the Trust shall terminate and be of no further
force or effect upon the later of (i) the maturity or other liquidation of the
last Mortgage Loan (including the redemption by the Sponsor at its option of
the Notes as described in Section 7.01(b) of the Sale and Servicing Agreement)
and the subsequent distribution of amounts in respect of such Mortgage Loans
as provided in the Basic Documents or (ii) the payment to Residual
Certificateholders of all amounts required to be paid to them pursuant to this
Agreement and the payment to the Insurer of all amounts payable or
reimbursable to it pursuant to the Sale and Servicing Agreement, the Indenture
and the Insurance Agreement; provided, however, that the rights to
indemnification under Section 9.2 and the rights under Section 9.1 shall
survive the termination of the Trust. The Servicer shall promptly notify the
Owner Trustee and the Insurer of any prospective termination pursuant to this
Section 10.1. The bankruptcy, liquidation, dissolution, death or incapacity of
any Residual Certificateholder shall not (x) operate to terminate this
Agreement or the Trust, nor (y) entitle such Residual Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the Trust or Owner Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
24
(b) Except as provided in clause (a), neither the Sponsor nor any
other Residual Certificateholder shall be entitled to revoke or terminate the
Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which the Class S Certificateholders and the Residual
Certificateholders shall surrender their Class S Certificates or Residual
Certificates, as the case may be, to the Indenture Trustee for payment of the
final distribution and cancellation, shall be given by the Owner Trustee by
letter to the Class S Certificateholders and the Residual Certificateholders
mailed within five Business Days of receipt of notice of such termination from
the Servicer given pursuant to Section 7.01(c) of the Sale and Servicing
Agreement, stating (i) the Payment Date upon or with respect to which final
payment of the Class S Certificates or Residual Certificates, as the case may
be, shall be made upon presentation and surrender of the Class S Certificates
or Residual Certificates, as the case may be, at the office of the Indenture
Trustee therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Class S Certificates or Residual Certificates, as the case may be, at the
office of the Indenture Trustee therein specified. The Owner Trustee shall
give such notice to the Certificate Registrar (if other than the Owner
Trustee) and the Indenture Trustee at the time such notice is given to the
Class S Certificateholders and the Residual Certificateholders. Upon
presentation and surrender of the Class S Certificates or Residual
Certificates, as the case may be, the Indenture Trustee shall cause to be
distributed to the Class S Certificateholders and the Residual
Certificateholders amounts distributable on such Payment Date pursuant to
Section 8.7(d)(xiv) of the Indenture.
In the event that all of the Residual Certificateholders shall not
surrender their Residual Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Owner Trustee
shall give a second written notice to the remaining Residual
Certificateholders to surrender their Residual Certificates for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice all the Residual Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Residual Certificateholders concerning surrender of their Residual
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies shall be distributed, subject to
applicable escheat laws, by the Owner Trustee to the Sponsor and Holders shall
look solely to the Sponsor for payment.
(d) Any funds remaining in the Trust after funds for final
distribution have been distributed or set aside for distribution shall be
distributed by the Owner Trustee to the Sponsor.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
25
ARTICLE XI
Successor Owner Trustees and Additional Owner Trustees
SECTION 11.1. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation (i) satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers; (iii) having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by Federal or
State authorities; (iv) having (or having a parent which has) a rating of at
least A3 by Moody's or A-1 by Standard & Poor's; and (v) acceptable to the
Insurer in its sole discretion. 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 11.2.
SECTION 11.2. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Sponsor (or in the event that
the Sponsor is not the sole Residual Certificateholder, the Holders of
Residual Certificates evidencing not less than a majority in interest in the
Trust), the Insurer and the Servicer. Upon receiving such notice of
resignation, the Sponsor shall promptly appoint a successor Owner Trustee,
meeting the qualifications set forth in Section 11.1 herein, by written
instrument, one copy of which instrument shall be delivered to the resigning
Owner Trustee and with additional copies to the successor Owner Trustee and
the Insurer provided that the Sponsor shall have received written confirmation
from each of the Rating Agencies that the proposed appointment will not result
in an increased capital charge to the Insurer by either of the Rating
Agencies. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee or the Insurer may petition any court
of competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 11.1 and shall fail to resign after
written request therefor by the Sponsor, 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 Residual Certificateholder with the consent of the
Insurer may remove the Owner Trustee. If the Residual Certificateholder shall
remove the Owner Trustee under the authority of the immediately preceding
sentence, the Sponsor shall promptly appoint a successor Owner Trustee,
meeting the qualifications set forth in Section 11.1 herein, by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the outgoing Owner Trustee so removed, one copy to the Insurer and one copy to
the successor Owner Trustee and the Sponsor shall pay all fees owed to the
outgoing Owner Trustee, if not previously paid by the Trust.
26
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 11.3 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Sponsor shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
Notwithstanding any other provision of this Agreement, and in
addition to any other method of removal of the Owner Trustee contained herein,
upon a proposal made pursuant to Section 5.2(b) and the subsequent consent of
Residual Certificateholders representing no less than a 66-2/3% Percentage
Interest of the Residual Certificates in the Trust, the Owner Trustee may be
removed as Owner Trustee, subject to the consent of the Insurer, which consent
is not to be unreasonably withheld. In the event the Owner Trustee is removed
pursuant to this paragraph, the provisions of this Agreement, including
Article X herein, shall apply as if the Owner Trustee had resigned hereunder.
SECTION 11.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 11.2 shall execute, acknowledge and deliver to
the Sponsor, the Servicer and the Insurer and to its predecessor Owner Trustee
an instrument accepting such appointment under this Agreement, and thereupon
the resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Sponsor and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and certainly vesting and confirming in the successor Owner Trustee all such
rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 11.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Servicer shall mail notice of the successor of such Owner
Trustee to all Residual Certificateholders, the Indenture Trustee, the
Noteholders and the Rating Agencies. If the Servicer shall fail 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 Servicer.
SECTION 11.4. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section
11.1, without the execution or
27
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, further,
that the Owner Trustee shall mail notice of such merger or consolidation to
the Rating Agencies.
SECTION 11.5. Appointment of Co-Owner Trustee or Separate Owner
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 Owner Trust Estate or any Mortgaged Property may at the time
be located, the Servicer and the Owner Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee and the Insurer to act as co-trustee,
jointly with the Owner Trustee, or separate trustee or separate trustees, of
all or any part of the Owner 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 Servicer and the Owner Trustee may consider necessary or
desirable. If the Servicer shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner Trustee subject
to the approval of the Insurer (which approval shall not be unreasonably
withheld) shall have the power to make such appointment. 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 11.1 and no notice of
the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 11.3.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding
of title to the Trust or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Servicer and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be
28
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 Servicer and the Insurer.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XII
Miscellaneous
SECTION 12.1. Supplements and Amendments.
(a) This Agreement may be amended by the Sponsor and the Owner
Trustee, with the prior written consent of the Insurer and with prior written
notice to the Rating Agencies, without the consent of any of the Noteholders
or, in the event that the Sponsor is not the sole Residual Certificateholder,
the Residual Certificateholders, (i) to cure any ambiguity or defect or (ii)
to correct, supplement or modify any provisions in this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
which may be based upon a certificate of the Servicer, adversely affect in any
material respect the interests of any Noteholder or Residual
Certificateholder.
(b) This Agreement may also be amended from time to time, with the
prior written consent of the Insurer, by the Sponsor and the Owner Trustee,
with prior written notice to the Rating Agencies, and, to the extent such
amendment materially and adversely affects the interests of the Noteholders,
with the consent of the Noteholders evidencing not less than a majority of the
Outstanding Amount of the Notes and, the consent of the Residual
Certificateholders evidencing not less than a majority interest in the Trust
(which consent of any Holder of a Note or Residual Certificate given pursuant
to this Section or pursuant to any other provision of this Agreement shall be
conclusive and binding on such Holder and on all future Holders of such Note
or Residual Certificate and of any Note or Residual Certificate issued upon
the transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made upon the Note or Residual Certificate) for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Residual Certificateholders;
provided, however, that, subject to the express rights of the Insurer under
the Basic Documents, 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 Mortgage Loans or distributions that shall be required to be made
for the benefit of the Noteholders, the Residual Certificateholders or the
Class S Certificateholders or (b) reduce the aforesaid percentage of the
Outstanding Amount of the Notes and the Residual Certificate, the Holders of
which are required to consent to any such
29
amendment, without the consent of the Holders of all the outstanding Notes and
Holders of all outstanding Residual Certificates.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Residual Certificateholder, the Indenture
Trustee, the Insurer and each of the Rating Agencies.
It shall not be necessary for the consent of the Noteholders, the
Residual Certificateholders or the Indenture Trustee pursuant to this Section
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 Residual
Certificateholders provided for in this Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof by
Residual Certificateholders 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 shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
the execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 12.2. No Legal Title to Owner Trust Estate in Residual
Certificateholders. The Residual Certificateholders shall not have legal title
to any part of the Owner Trust Estate. The Residual Certificateholders shall
be entitled to receive distributions with respect to their undivided ownership
interest therein only in accordance with Article IX. No transfer, by operation
of law or otherwise, of any right, title or interest of the Residual
Certificateholders to and in their ownership interest in the Owner Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 12.3. Limitations on Rights of Others. Except for Section
2.7, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Sponsor, the Residual Certificateholders, the Servicer and, to
the extent expressly provided herein, the Insurer, the Indenture Trustee and
the Noteholders, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 12.4. Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt
personally delivered, delivered by overnight courier or mailed first class
mail or certified mail, in each case return receipt requested, and shall be
deemed to have been duly given upon receipt, if to the Owner
30
Trustee, addressed to the Corporate Trust Office; if to the Sponsor, addressed
to GreenPoint Mortgage Securities Inc., 000 Xxxxxxxx Xxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxxxxx 00000; if to the Insurer, addressed to Insurer,
Financial Guaranty Insurance Company, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Research and Risk Management GreenPoint Home Equity Loan
Trust--2000-3 , Telecopy No.: (000) 000-0000; or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party.
(b) Any notice required or permitted to be given to a Residual
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Residual
Certificateholder receives such notice.
SECTION 12.5. Severability. Any provision of this Agreement that 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 12.6. 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 12.7. Assignments; Insurer.
(a) This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns. This
Agreement shall also inure to the benefit of the Insurer. Without limiting the
generality of the foregoing, all covenants and agreements in this Agreement
which confer rights upon the Insurer shall be for the benefit of and run
directly to the Insurer and the Insurer shall each be entitled to rely on and
enforce such covenants, subject, however, to the limitations on such rights
provided in this Agreement and the Basic Documents. The Insurer may disclaim
any of its rights and powers under this Agreement (but not its duties and
obligations under the Policy) upon delivery of a written notice to the Owner
Trustee.
(b) In accepting instructions from the Insurer pursuant to Article V
or Section 7.3 of this Agreement, and with respect to any other obligations of
the Owner Trustee to the Insurer under this Agreement, the Owner Trustee
undertakes to perform or observe only its express obligations under this
Agreement, and no implied obligations with respect to the Insurer shall be
read into this Agreement against the Owner Trustee. The Owner Trustee shall
not be deemed to owe any fiduciary duty to the Insurer and it is expressly
understood and agreed by the Insurer that the Owner Trustee shall not be
personally liable or responsible for the payment of any amount owing on or
with respect to the Basic Documents or for the failure of the Trust to perform
its obligations under the Basic Documents or any other agreement with respect
thereto.
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SECTION 12.8. No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, each
Residual Certificateholder, by accepting a Residual Certificate, and the
Indenture Trustee and each Noteholder by accepting the benefits of this
Agreement, hereby covenants and agrees that they will not at any time
institute against the Sponsor, or join in any institution against the Sponsor
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Residual Certificates, the Class S Certificates, this Agreement or
any of the Basic Documents.
SECTION 12.9. No Recourse. Each Residual Certificateholder by
accepting a Residual Certificate acknowledges that such Residual
Certificateholder's Residual Certificates represent beneficial interests in
the Trust only and do not represent interests in or obligations of the
Servicer, the Sponsor, the Owner Trustee, the Indenture Trustee, the Insurer
or any Affiliate thereof and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated in this
Agreement, the Residual Certificates or the Basic Documents.
SECTION 12.10. 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 12.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.12. Servicer. The Servicer is authorized to prepare, or
cause to be prepared, execute and deliver on behalf of the Trust all such
documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Trust or Owner Trustee to prepare, file or deliver
pursuant to the Basic Documents. Upon written request, the Owner Trustee shall
execute and deliver to the Servicer a limited power of attorney appointing the
Servicer the Trust's agent and attorney-in-fact to prepare, or cause to be
prepared, execute and deliver all such documents, reports, filings,
instruments, certificates and opinions.
32
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
WILMINGTON TRUST COMPANY,
Owner Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
-------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
GREENPOINT MORTGAGE SECURITIES INC.,
Sponsor
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Acknowledged and Agreed:
GREENPOINT MORTGAGE FUNDING, INC.,
Servicer
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
FINANCIAL GUARANTY INSURANCE COMPANY,
Insurer
By: /s/ Xxxxx Xxx
--------------------------------------------
Name: Xxxxx Xxx
Title: Team Leader
EXHIBIT A
CLASS S CERTIFICATE
THIS CLASS S CERTIFICATE REPRESENTS CERTAIN RIGHTS TO PAYMENT OF INTEREST TO THE
EXTENT DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS CLASS S CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON.
THIS CLASS S 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 S 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 4.10 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CLASS S CERTIFICATE MAY BE MADE UNLESS THE TRANSFEREE
PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH CLASS S
CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE AND THE INSURER, TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE
INTERNAL REVENUE CODE, NOR A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF
ANY SUCH PLAN, WHICH REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF THE OWNER
TRUSTEE OR THE INSURER.
NO TRANSFER OF A CLASS S 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 S CERTIFICATE TO
THE SPONSOR, THE OWNER TRUSTEE SHALL REQUIRE (i) THE TRANSFEREE TO EXECUTE AN
INVESTMENT LETTER ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE AND THE INSURER CERTIFYING TO THE OWNER TRUSTEE AND THE INSURER
THE FACTS SURROUNDING SUCH TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN
EXPENSE OF THE OWNER TRUSTEE, OR THE INSURER OR (ii) IF THE INVESTMENT LETTER IS
NOT DELIVERED, A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE, THE INSURER AND THE SPONSOR THAT
SUCH TRANSFER MAY BE MADE PURSUANT TO
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AN EXEMPTION, DESCRIBING THE APPLICABLE EXEMPTION AND THE BASIS THEREFOR, FROM
SAID ACT OR IS BEING MADE PURSUANT TO SAID ACT, WHICH OPINION OF COUNSEL SHALL
NOT BE AN EXPENSE OF THE OWNER TRUSTEE, THE INSURER OR THE SPONSOR. THE HOLDER
OF A CLASS S CERTIFICATE DESIRING TO EFFECT SUCH TRANSFER SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE SPONSOR AND THE INSURER AGAINST ANY LIABILITY
THAT MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT OR IS NOT MADE IN ACCORDANCE
WITH SUCH FEDERAL AND STATE LAWS.
THE CLASS S CERTIFICATES AND ANY INTEREST THEREIN SHALL NOT BE TRANSFERRED
EXCEPT UPON SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT: (I) THE PERSON
THAT ACQUIRES A CLASS S CERTIFICATE SHALL (A) BE ORGANIZED AND EXISTING UNDER
THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE OR THE DISTRICT OF
COLUMBIA THEREOF, (B) EXPRESSLY ASSUME, BY AN AGREEMENT SUPPLEMENTAL HERETO,
EXECUTED AND DELIVERED TO THE OWNER TRUSTEE AND THE INSURER, THE PERFORMANCE OF
EVERY COVENANT AND OBLIGATION OF THE SPONSOR UNDER THE TRUST AGREEMENT AND (C)
AS PART OF ITS ACQUISITION OF A CLASS S CERTIFICATE, ACQUIRE ALL RIGHTS OF THE
SPONSOR OR ANY TRANSFEREE UNDER SECTION 4.10 OF THE TRUST AGREEMENT TO AMOUNTS
PAYABLE TO THE CLASS S CERTIFICATE OR SUCH TRANSFEREE UNDER SECTIONS 9.6(D)(XIV)
AND 9.5(C) OF THE INDENTURE; (II) THE HOLDER OF THE CLASS S CERTIFICATES SHALL
DELIVER TO THE OWNER TRUSTEE AND THE INSURER AN OFFICER'S CERTIFICATE STATING
THAT SUCH TRANSFER AND SUCH SUPPLEMENTAL AGREEMENT COMPLY WITH SECTION 4.10(C)
OF THE TRUST AGREEMENT AND THAT ALL CONDITIONS PRECEDENT PROVIDED BY SECTION
4.10(C) OF THE TRUST AGREEMENT HAVE BEEN COMPLIED WITH AND AN OPINION OF COUNSEL
STATING THAT ALL CONDITIONS PRECEDENT PROVIDED BY SECTION 4.10(C) OF THE TRUST
AGREEMENT HAVE BEEN COMPLIED WITH, AND THE OWNER TRUSTEE MAY CONCLUSIVELY RELY
ON SUCH OFFICER'S CERTIFICATE, SHALL HAVE NO DUTY TO MAKE INQUIRIES WITH REGARD
TO THE MATTERS SET FORTH THEREIN AND SHALL INCUR NO LIABILITY IN SO RELYING;
(III) THE HOLDER OF THE CLASS S CERTIFICATES SHALL DELIVER TO THE OWNER TRUSTEE
AND THE INSURER A LETTER FROM EACH RATING AGENCY CONFIRMING THAT ITS RATING OF
THE NOTES, AFTER GIVING EFFECT TO SUCH TRANSFER, WILL NOT BE REDUCED OR
WITHDRAWN WITHOUT REGARD TO THE POLICY; (IV) THE TRANSFEREE OF THE CLASS S
CERTIFICATES SHALL DELIVER TO THE OWNER TRUSTEE, AND THE INSURER AN OPINION OF
COUNSEL TO THE EFFECT THAT (A) SUCH TRANSFER WILL NOT ADVERSELY AFFECT THE
TREATMENT OF THE NOTES AFTER SUCH TRANSFER AS DEBT FOR FEDERAL AND APPLICABLE
STATE INCOME TAX PURPOSES, (B) SUCH TRANSFER WILL NOT RESULT IN THE TRUST BEING
SUBJECT TO TAX AT THE ENTITY LEVEL FOR FEDERAL OR APPLICABLE STATE TAX PURPOSES,
(C) SUCH TRANSFER WILL NOT HAVE ANY MATERIAL ADVERSE IMPACT ON THE FEDERAL OR
APPLICABLE STATE INCOME TAXATION OF A NOTEHOLDER OR ANY CLASS S
CERTIFICATEHOLDER AND (D) SUCH TRANSFER WILL NOT RESULT IN THE ARRANGEMENT
CREATED BY THE TRUST AGREEMENT OR ANY "PORTION" OF THE TRUST, BEING TREATED AS A
TAXABLE MORTGAGE POOL AS DEFINED IN SECTION 7701(I) OF THE CODE; (V) ALL FILINGS
AND OTHER ACTIONS
A-2
NECESSARY TO CONTINUE THE PERFECTION OF THE INTEREST OF THE TRUST IN THE
MORTGAGE LOANS AND THE OTHER PROPERTY CONVEYED UNDER THE TRUST AGREEMENT SHALL
HAVE BEEN TAKEN OR MADE AND (VI) THE INSURER SHALL HAVE CONSENTED TO SUCH
TRANSFER.
IN ADDITION, NO TRANSFER OR PLEDGE OF (I) ANY RESIDUAL CERTIFICATE OR (II) ANY
PORTION OF A TRANSFEROR'S INTEREST IN ANY RESIDUAL CERTIFICATE SHALL BE MADE TO
A PROPOSED HOLDER UNLESS TRANSFEROR SIMULTANEOUSLY TRANSFERS TO SUCH PROPOSED
HOLDER (I) THE CLASS S CERTIFICATE OR (II) AN ANALOGOUS PORTION (BY PERCENTAGE)
OF THE TRANSFEROR'S INTEREST IN THE CLASS S CERTIFICATE, RESPECTIVELY. NO CLASS
S CERTIFICATE MAY BE TRANSFERRED TO ANY PROPOSED HOLDER EXCEPT IN CONNECTION
WITH THE TRANSFER OF A RESIDUAL CERTIFICATE MADE IN ACCORDANCE WITH THE TERMS OF
THE PRECEDING SENTENCE.
THIS CLASS S 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
GREENPOINT HOME EQUITY LOAN TRUST 2000-3 CLASS S CERTIFICATE
Percentage Interest: 100% Cut-Off Date: November 30, 2000
First Payment Date: January 16, 2001 Issue Date: December 18, 2000
No. 1
GreenPoint Mortgage Securities Inc.
Class S Certificateholder
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class S 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
The Trust was created pursuant to a Trust Agreement dated as of
December 1, 2000 (the "Trust Agreement"), between the Sponsor and Wilmington
Trust Company, as owner trustee (the "Owner Trustee"), a summary of certain of
the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement.
This Class S Certificate is one of the duly authorized Class S
Certificates designated as GreenPoint Home Equity Loan "Asset Backed
Certificates" (herein called the "Class S Certificates"). Also issued under
the Trust Agreement are three classes of Notes designated as Class A-1 Notes,
Class A-2 Notes and Class A-3 Notes (collectively referred to herein as the
"Notes") and the Residual Certificate (the "Residual Certificate"). These
Class S 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 S Certificate by virtue of the acceptance hereof assents and by
which such holder is bound. The property of the Trust includes (A) a pool of
certain adjustable rate home equity revolving credit line loans (the "HELOC
Mortgage Loans") (including any Additional Balances related thereto) and
certain second lien closed-end loans (the "Closed End Mortgage Loans") in each
case which substantially conform to the loan origination standards with
respect to loan balances as of the date of origination set forth by the
Federal National Mortgage Association, (B) a pool of certain HELOC Mortgage
Loans (including any Additional Balances related thereto) and certain Closed
End Mortgage Loans in each case which substantially conform to the loan
origination standards with respect to
A-4
loan balances as of the date of origination set forth by the Federal Home Loan
Mortgage Corporation, and (C) a pool of certain HELOC Mortgage Loans (including
any Additional Balances related thereto) and Certain Closed End Mortgage Loans
which may not so conform.
Under the Trust Agreement, there will be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next Business
Day (the "Payment Date"), commencing on January 16, 2001, to the Person in
whose name this Class S Certificate is registered at the close of business on
the Business Day preceding such Payment Date (the "Record Date") such Class S
Certificateholder's Percentage Interest in the amount to be distributed to
Class S Certificateholders on such Payment Date.
The holder of this Class S Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Class S 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 S Certificate, by acceptance of this Class S
Certificate, specifically acknowledges that it has no right to or interest in
any monies at any time held pursuant to the Reserve Fund or prior to the
release of such monies pursuant to Sections 9.6(d)(xiii) and 9.5(c) of the
Indenture, such monies being held in trust for the benefit of the Noteholders
and the Insurer. Notwithstanding the foregoing, in the event that it is ever
determined that the monies held in the Reserve Fund 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 S
Certificate hereby grants to the Indenture Trustee and the Insurer a first
priority perfected security interest in such amounts. In addition, each Class
S Certificateholder, by acceptance of its Class S Certificate, hereby appoints
the Sponsor as its agent to pledge a first priority perfected security
interest in the Reserve Fund 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 Insurer shall consider
reasonably necessary in order to perfect the Indenture Trustee's security
interest in the Trust Property.
It is the intent of the Sponsor, the Servicer, and the Class S
Certificateholders that, for purposes of Federal income taxes, the Trust will
be treated as a branch. In the event that the Class S Certificates are held by
more than one Holder, it is the intent of the Sponsor, the Servicer, and the
Class S Certificateholders that, for purposes of Federal income taxes, the
Trust will be treated as a partnership and the Class S Certificateholders will
be treated as partners in that partnership. The Sponsor and any other Class S
Certificateholders, by acceptance of a Class S Certificate, agree to treat,
and to take no action inconsistent with the treatment of, the Class S
Certificates for such tax purposes as partnership interests in the Trust. Each
Class S Certificateholder, by its acceptance of a Class S Certificate,
covenants and agrees that such Class S Certificateholder will not at any time
institute against the Trust or the Sponsor, or join in any institution against
the Trust or the Sponsor 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 S Certificates, the Certificates, the Trust
Agreement or any of the Basic Documents.
A-5
Distributions on this Class S Certificate will be made as provided in
the Sale and Servicing Agreement and the Indenture by the Indenture Trustee by
wire transfer or check mailed to the Class S Certificateholder of record in
the Certificate Register without the presentation or surrender of this Class S
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 S 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 S Certificate at the office or agency maintained for the purpose
by the Owner Trustee in the Corporate Trust Office.
Reference is hereby made to the further provisions of this Class S
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Class S 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 S Certificates do not represent an obligation of, or an
interest in, the Company, the Sponsor, the Servicer, the Insurer, the Owner
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement, the Indenture or the Basic
Documents. In addition, this Class S 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
Sponsor, and at such other places, if any, designated by the Sponsor, by any
Class S 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 Sponsor and the rights of the Class S Certificateholders
under the Trust Agreement at any time by the Sponsor and the Owner Trustee
with the prior written consent of the Insurer and with the consent of the
holders of the Notes and the Residual Certificates evidencing not less than a
majority of the outstanding Notes and the Residual Certificates. Any such
amendment shall be conclusive and binding upon the holder of this Class S
Certificate and on all future holders of this Class S Certificate and of any
Class S 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
S Certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the holders of any of
the Class S Certificates (other than the Sponsor , or the Insurer).
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Class S Certificate is registrable in
the Certificate Register upon surrender of this Class S Certificate for
registration of transfer at the offices or agencies of the
A-6
Certificate Registrar maintained by the Owner Trustee in the Corporate Trust
Office, accompanied by a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon one
or more new Class S Certificates in authorized denominations evidencing the
same aggregate interest in the Trust will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Trust
Agreement is Wilmington Trust Company.
Except for Class S Certificates issued to the Sponsor, the Class S
Certificates are issuable only as registered Class S Certificates without
coupons in denominations of $1,000 or integral multiples of $1,000 in excess
thereof. As provided in the Trust Agreement and subject to certain limitations
therein set forth, Class S Certificates are exchangeable for new Class S
Certificates in authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar, the Insurer and any
agent of the Owner Trustee, the Certificate Registrar, or the Insurer may
treat the person in whose name this Class S Certificate is registered as the
owner hereof for all purposes, and none of the Owner Trustee, the Certificate
Registrar, the Insurer nor any such agent shall be affected by any notice to
the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to Class S
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 Sponsor may at its
option redeem the Notes at a price and upon the satisfaction of certain
conditions specified in Section 6.01(b) 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 S
Certificates; however, such right of purchase is exercisable, subject to
certain restrictions, only on any Payment Date on or after the Payment Date
immediately prior to which the related Note Principal Balance for a Class of
Notes is less than or equal to 10% of the related Original Note Principal
Balance for such Class of Notes, all amounts due and owing to the Insurer for
unpaid premiums and unreimbursed draws related to such Class of Notes on the
Policy and all other amounts due and owing to the Insurer pursuant to the
Insurance Agreement together with interest thereon as provided under the
Insurance Agreement have been paid.
The recitals contained herein shall be taken as the statements of the
Sponsor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Class S 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 S
A-7
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-8
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this Class S Certificate to be
duly executed.
GREENPOINT HOME EQUITY LOAN TRUST 2000-3
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By:
---------------------------------------
Name:
Title:
Dated: December 18, 2000
A-9
EXHIBIT B
RESIDUAL CERTIFICATE
THIS RESIDUAL CERTIFICATE REPRESENTS CERTAIN RESIDUAL RIGHTS TO PAYMENT TO THE
EXTENT DESCRIBED HEREIN AND IN THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS RESIDUAL CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON.
THIS RESIDUAL 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 RESIDUAL 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 4.10 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS RESIDUAL CERTIFICATE MAY BE MADE UNLESS THE TRANSFEREE
PROVIDES A REPRESENTATION LETTER FROM THE TRANSFEREE OF SUCH RESIDUAL
CERTIFICATE, ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE AND THE INSURER, TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE
INTERNAL REVENUE CODE, NOR A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF
ANY SUCH PLAN, WHICH REPRESENTATION LETTER SHALL NOT BE AN EXPENSE OF THE OWNER
TRUSTEE OR THE INSURER.
NO TRANSFER OF A RESIDUAL 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 RESIDUAL CERTIFICATE
TO THE SPONSOR, THE OWNER TRUSTEE SHALL REQUIRE (i) THE TRANSFEREE TO EXECUTE AN
INVESTMENT LETTER ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
OWNER TRUSTEE AND THE INSURER CERTIFYING TO THE OWNER TRUSTEE AND THE INSURER
THE FACTS SURROUNDING SUCH TRANSFER, WHICH INVESTMENT LETTER SHALL NOT BE AN
EXPENSE OF THE OWNER TRUSTEE, OR THE INSURER OR (ii) IF THE INVESTMENT LETTER IS
NOT DELIVERED, A WRITTEN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE, THE INSURER AND THE SPONSOR THAT
SUCH TRANSFER MAY BE MADE PURSUANT TO
B-1
AN EXEMPTION, DESCRIBING THE APPLICABLE EXEMPTION AND THE BASIS THEREFOR, FROM
SAID ACT OR IS BEING MADE PURSUANT TO SAID ACT, WHICH OPINION OF COUNSEL SHALL
NOT BE AN EXPENSE OF THE OWNER TRUSTEE, THE INSURER OR THE SPONSOR. THE HOLDER
OF A RESIDUAL CERTIFICATE DESIRING TO EFFECT SUCH TRANSFER SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE SPONSOR AND THE INSURER AGAINST ANY LIABILITY
THAT MAY RESULT IF THE TRANSFER IS NOT SO EXEMPT OR IS NOT MADE IN ACCORDANCE
WITH SUCH FEDERAL AND STATE LAWS.
THE RESIDUAL CERTIFICATES AND ANY INTEREST THEREIN SHALL NOT BE TRANSFERRED
EXCEPT UPON SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT: (I) THE PERSON
THAT ACQUIRES A RESIDUAL CERTIFICATE SHALL (A) BE ORGANIZED AND EXISTING UNDER
THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE OR THE DISTRICT OF
COLUMBIA THEREOF, (B) EXPRESSLY ASSUME, BY AN AGREEMENT SUPPLEMENTAL HERETO,
EXECUTED AND DELIVERED TO THE OWNER TRUSTEE AND THE INSURER, THE PERFORMANCE OF
EVERY COVENANT AND OBLIGATION OF THE SPONSOR UNDER THE TRUST AGREEMENT AND (C)
AS PART OF ITS ACQUISITION OF A RESIDUAL CERTIFICATE, ACQUIRE ALL RIGHTS OF THE
SPONSOR OR ANY TRANSFEREE UNDER SECTION 4.10 OF THE TRUST AGREEMENT TO AMOUNTS
PAYABLE TO THE RESIDUAL CERTIFICATE OR SUCH TRANSFEREE UNDER SECTIONS
9.6(D)(XIV) AND 9.5(C) OF THE INDENTURE; (II) THE HOLDER OF THE RESIDUAL
CERTIFICATES SHALL DELIVER TO THE OWNER TRUSTEE AND THE INSURER AN OFFICER'S
CERTIFICATE STATING THAT SUCH TRANSFER AND SUCH SUPPLEMENTAL AGREEMENT COMPLY
WITH SECTION 4.10(C) OF THE TRUST AGREEMENT AND THAT ALL CONDITIONS PRECEDENT
PROVIDED BY SECTION 4.10(C) OF THE TRUST AGREEMENT HAVE BEEN COMPLIED WITH AND
AN OPINION OF COUNSEL STATING THAT ALL CONDITIONS PRECEDENT PROVIDED BY SECTION
4.10(C) OF THE TRUST AGREEMENT HAVE BEEN COMPLIED WITH, AND THE OWNER TRUSTEE
MAY CONCLUSIVELY RELY ON SUCH OFFICER'S CERTIFICATE, SHALL HAVE NO DUTY TO MAKE
INQUIRIES WITH REGARD TO THE MATTERS SET FORTH THEREIN AND SHALL INCUR NO
LIABILITY IN SO RELYING; (III) THE HOLDER OF THE RESIDUAL CERTIFICATES SHALL
DELIVER TO THE OWNER TRUSTEE AND THE INSURER A LETTER FROM EACH RATING AGENCY
CONFIRMING THAT ITS RATING OF THE NOTES, AFTER GIVING EFFECT TO SUCH TRANSFER,
WILL NOT BE REDUCED OR WITHDRAWN WITHOUT REGARD TO THE POLICY; (IV) THE
TRANSFEREE OF THE RESIDUAL CERTIFICATES SHALL DELIVER TO THE OWNER TRUSTEE, AND
THE INSURER AN OPINION OF COUNSEL TO THE EFFECT THAT (A) SUCH TRANSFER WILL NOT
ADVERSELY AFFECT THE TREATMENT OF THE NOTES AFTER SUCH TRANSFER AS DEBT FOR
FEDERAL AND APPLICABLE STATE INCOME TAX PURPOSES, (B) SUCH TRANSFER WILL NOT
RESULT IN THE TRUST BEING SUBJECT TO TAX AT THE ENTITY LEVEL FOR FEDERAL OR
APPLICABLE STATE TAX PURPOSES, (C) SUCH TRANSFER WILL NOT HAVE ANY MATERIAL
ADVERSE IMPACT ON THE FEDERAL OR APPLICABLE STATE INCOME TAXATION OF A
NOTEHOLDER OR ANY RESIDUAL CERTIFICATEHOLDER AND (D) SUCH TRANSFER WILL NOT
RESULT IN THE ARRANGEMENT CREATED BY THE TRUST AGREEMENT OR ANY "PORTION" OF THE
TRUST, BEING TREATED AS A TAXABLE MORTGAGE POOL AS DEFINED IN SECTION 7701(I) OF
THE CODE; (V) ALL FILINGS AND OTHER ACTIONS
B-2
NECESSARY TO CONTINUE THE PERFECTION OF THE INTEREST OF THE TRUST IN THE
MORTGAGE LOANS AND THE OTHER PROPERTY CONVEYED UNDER THE TRUST AGREEMENT SHALL
HAVE BEEN TAKEN OR MADE AND (VI) THE INSURER SHALL HAVE CONSENTED TO SUCH
TRANSFER.
IN ADDITION, NO TRANSFER OR PLEDGE OF (I) ANY RESIDUAL CERTIFICATE OR (II) ANY
PORTION OF A TRANSFEROR'S INTEREST IN ANY RESIDUAL CERTIFICATE SHALL BE MADE TO
A PROPOSED HOLDER UNLESS TRANSFEROR SIMULTANEOUSLY TRANSFERS TO SUCH PROPOSED
HOLDER (I) THE CLASS S CERTIFICATE OR (II) AN ANALOGOUS PORTION (BY PERCENTAGE)
OF THE TRANSFEROR'S INTEREST IN THE CLASS S CERTIFICATE, RESPECTIVELY. NO CLASS
S CERTIFICATE MAY BE TRANSFERRED TO ANY PROPOSED HOLDER EXCEPT IN CONNECTION
WITH THE TRANSFER OF A RESIDUAL CERTIFICATE MADE IN ACCORDANCE WITH THE TERMS OF
THE PRECEDING SENTENCE.
THIS RESIDUAL 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.
B-3
GREENPOINT HOME EQUITY LOAN TRUST 2000-3 RESIDUAL CERTIFICATE
Percentage Interest: 100% Cut-Off Date: November 30, 2000
First Payment Date: January 16, 2001 Issue Date: December 18, 2000
No. 1
GreenPoint Mortgage Securities Inc.
Residual Certificateholder
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Residual 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
The Trust was created pursuant to a Trust Agreement dated as of
December 1, 2000 (the "Trust Agreement"), between the Sponsor and Wilmington
Trust Company, as owner trustee (the "Owner Trustee"), a summary of certain of
the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Trust Agreement.
This Residual Certificate is one of the duly authorized Residual
Certificates designated as GreenPoint Home Equity Loan "Asset Backed
Certificates" (herein called the "Residual Certificates"). Also issued under
the Trust Agreement are three classes of Notes designated as Class A-1 Notes,
Class A-2 Notes and Class A-3 Notes (collectively referred to herein as the
"Notes") and the Class S Certificate (the "Class S Certificate"). These
Residual 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 Residual Certificate by virtue of the acceptance hereof assents
and by which such holder is bound. The property of the Trust includes (A) a
pool of certain adjustable rate home equity revolving credit line loans (the
"HELOC Mortgage Loans") (including any Additional Balances related thereto)
and certain second lien closed-end loans (the "Closed End Mortgage Loans") in
each case which substantially conform to the loan origination standards with
respect to loan balances as of the date of origination set forth by the
Federal National Mortgage Association, (B) a pool of certain HELOC Mortgage
Loans (including any Additional Balances related thereto) and certain Closed
End Mortgage Loans in each case which substantially conform to the loan
origination standards with respect to
B-4
loan balances as of the date of origination set forth by the Federal Home Loan
Mortgage Corporation, and (C) a pool of certain HELOC Mortgage Loans (including
any Additional Balances related thereto) and Certain Closed End Mortgage Loans
which may not so conform.
Under the Trust Agreement, there will be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next Business
Day (the "Payment Date"), commencing on January 16, 2001, to the Person in
whose name this Residual Certificate is registered at the close of business on
the Business Day preceding such Payment Date (the "Record Date") such Residual
Certificateholder's Percentage Interest in the amount to be distributed to
Residual Certificateholders on such Payment Date.
The holder of this Residual Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Residual 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 Residual Certificate, by acceptance of this
Residual Certificate, specifically acknowledges that it has no right to or
interest in any monies at any time held pursuant to the Reserve Fund or prior
to the release of such monies pursuant to Sections 9.6(d)(xiii) and 9.5(c) of
the Indenture, such monies being held in trust for the benefit of the
Noteholders and the Insurer. Notwithstanding the foregoing, in the event that
it is ever determined that the monies held in the Reserve Fund 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
Residual Certificate hereby grants to the Indenture Trustee and the Insurer a
first priority perfected security interest in such amounts. In addition, each
Residual Certificateholder, by acceptance of its Residual Certificate, hereby
appoints the Sponsor as its agent to pledge a first priority perfected
security interest in the Reserve Fund 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 Insurer shall consider
reasonably necessary in order to perfect the Indenture Trustee's security
interest in the Trust Property.
It is the intent of the Sponsor, the Servicer, and the Residual
Certificateholders that, for purposes of Federal income taxes, the Trust will
be treated as a branch. In the event that the Residual Certificates are held
by more than one Holder, it is the intent of the Sponsor, the Servicer, and
the Residual Certificateholders that, for purposes of Federal income taxes,
the Trust will be treated as a partnership and the Residual Certificateholders
will be treated as partners in that partnership. The Sponsor and any other
Residual Certificateholders, by acceptance of a Residual Certificate, agree to
treat, and to take no action inconsistent with the treatment of, the Residual
Certificates for such tax purposes as partnership interests in the Trust. Each
Residual Certificateholder, by its acceptance of a Residual Certificate,
covenants and agrees that such Residual Certificateholder will not at any time
institute against the Trust or the Sponsor, or join in any institution against
the Trust or the Sponsor 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 Residual Certificates, the Certificates, the Trust
Agreement or any of the Basic Documents.
B-5
Distributions on this Residual Certificate will be made as provided
in the Sale and Servicing Agreement and the Indenture by the Indenture Trustee
by wire transfer or check mailed to the Residual Certificateholder of record
in the Certificate Register without the presentation or surrender of this
Residual 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 Residual 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 Residual Certificate at the office or agency maintained
for the purpose by the Owner Trustee in the Corporate Trust Office.
Reference is hereby made to the further provisions of this Residual
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Residual 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 Residual Certificates do not represent an obligation of, or an
interest in, the Company, the Sponsor, the Servicer, the Insurer, the Owner
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement, the Indenture or the Basic
Documents. In addition, this Residual 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
Sponsor, and at such other places, if any, designated by the Sponsor, by any
Residual 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 Sponsor and the rights of the Residual Certificateholders
under the Trust Agreement at any time by the Sponsor and the Owner Trustee
with the prior written consent of the Insurer and with the consent of the
holders of the Notes and the Residual Certificates evidencing not less than a
majority of the outstanding Notes and the Residual Certificates. Any such
amendment shall be conclusive and binding upon the holder of this Residual
Certificate and on all future holders of this Residual Certificate and of any
Residual 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
Residual Certificate. The Trust Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the holders of any of
the Residual Certificates (other than the Sponsor, or the Insurer).
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Residual Certificate is registrable in
the Certificate Register upon surrender of this Residual Certificate for
registration of transfer at the offices or agencies of the
B-6
Certificate Registrar maintained by the Owner Trustee in the Corporate Trust
Office, accompanied by a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon one
or more new Residual Certificates in authorized denominations evidencing the
same aggregate interest in the Trust will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Trust
Agreement is Wilmington Trust Company.
Except for Residual Certificates issued to the Sponsor, the Residual
Certificates are issuable only as registered Residual Certificates without
coupons in denominations of $1,000 or integral multiples of $1,000 in excess
thereof. As provided in the Trust Agreement and subject to certain limitations
therein set forth, Residual Certificates are exchangeable for new Residual
Certificates in authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar, the Insurer and any
agent of the Owner Trustee, the Certificate Registrar, or the Insurer may
treat the person in whose name this Residual Certificate is registered as the
owner hereof for all purposes, and none of the Owner Trustee, the Certificate
Registrar, the Insurer nor any such agent shall be affected by any notice to
the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to Residual
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 Sponsor may at its
option redeem the Notes at a price and upon the satisfaction of certain
conditions specified in Section 6.01(b) 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 Residual
Certificates; however, such right of purchase is exercisable, subject to
certain restrictions, only on any Payment Date on or after the Payment Date
immediately prior to which the related Note Principal Balance for a Class of
Notes is less than or equal to 10% of the related Original Note Principal
Balance for such Class of Notes, all amounts due and owing to the Insurer for
unpaid premiums and unreimbursed draws related to such Class of Notes on the
Policy and all other amounts due and owing to the Insurer pursuant to the
Insurance Agreement together with interest thereon as provided under the
Insurance Agreement have been paid.
The recitals contained herein shall be taken as the statements of the
Sponsor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Residual 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 Residual
B-7
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.
B-8
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Residual Certificate to be duly
executed.
GREENPOINT HOME EQUITY LOAN TRUST 2000-3
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By:
------------------------------------
Name:
Title:
Dated: December 18, 2000
B-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Residual Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing Attorney to
----------------------------------
transfer said Residual 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
Residual 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.
EXHIBIT C
CERTIFICATE OF TRUST OF
GREENPOINT HOME EQUITY LOAN TRUST 2000-3
This Certificate of Trust of GreenPoint Home Equity Loan Trust 2000-3
(the "Trust"), dated as of December __, 2000, is being duly executed and filed
by Wilmington Trust Company, a Delaware banking corporation, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code, ss.
3801 et seq.).
1. Name. The name of the business trust formed hereby is GreenPoint
Home Equity Loan Trust 2000-3.
2. Delaware Trust. The name and business address of the Owner Trustee
of the Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000. Attn:
Corporate Trust Administration.
3. This Certificate of Trust will be effective December 18, 2000.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
of the Trust.
By:
-----------------------------------
Name:
Title:
