EXECUTION COPY
ADMINISTRATION AGREEMENT
among
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE3,
as Issuer
LASALLE BANK NATIONAL ASSOCIATION,
as Administrator
WILMINGTON TRUST COMPANY,
as Owner Trustee
and
XXXXXX ABS CORPORATION,
as Depositor
Dated as of August 1, 2005
This Administration Agreement (the "Agreement") is entered into as of
August 1, 2005, among GREENPOINT MORTGAGE FUNDING TRUST 2005-HE3, a Delaware
statutory trust (the "Issuer"), LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity but solely as administrator
(the "Administrator"), WILMINGTON TRUST COMPANY, not in its individual capacity
but solely as owner trustee of the Issuer (the "Owner Trustee"), and XXXXXX ABS
CORPORATION, as depositor (the "Depositor").
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Indenture, the Trust Agreement or the Transfer and
Servicing Agreement (each as defined herein) and the rules of construction
contained in the Indenture shall apply hereto.
W I T N E S S E T H:
WHEREAS, the Issuer is a statutory trust under the Delaware Statutory
Trust Act (12 Del.C. ss. 3801 et seq.) governed pursuant to an Amended and
Restated Trust Agreement relating to the Issuer, dated as of August 1, 2005,
among the Depositor, the Owner Trustee and the Administrator (the "Trust
Agreement");
WHEREAS, the Issuer will issue under an indenture its GREENPOINT
MORTGAGE FUNDING TRUST 2005-HE3 ASSET-BACKED NOTES, SERIES 2005-HE3 Class A,
Class M1 and Class M2 Notes (together, the "Notes") and, under the Trust
Agreement, the Class B, Class L and Class R Certificates (the "Certificates" and
collectively with the Notes, the "Securities");
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture dated as of August 1, 2005 (the
"Indenture"), between the Issuer and LaSalle Bank National Association, as
indenture trustee (in such capacity, the "Indenture Trustee");
WHEREAS, the Certificates will be issued pursuant to the Trust
Agreement and will represent the undivided beneficial ownership interest in the
Issuer;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Securities, including (i) a Transfer and Servicing
Agreement dated as of August 1, 2005, among the Issuer, as issuer, the
Depositor, as seller, GreenPoint Mortgage Funding, Inc., as master servicer (the
"Master Servicer"), and the Indenture Trustee (the "Transfer and Servicing
Agreement"), (ii) the Letter of Representations dated August 25, 2005, among the
Issuer, the Indenture Trustee, the Administrator and The Depository Trust
Company relating to the Notes (the "Depository Agreement") and (iii) the
Indenture (the Transfer and Servicing Agreement, the Depository Agreement, the
Indenture and the Trust Agreement being hereinafter referred to collectively as
the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer is required to
perform certain duties in connection with (a) the Notes and the collateral
therefor pledged pursuant to the Indenture (the "Collateral") and (b) the
undivided beneficial ownership interest in the Issuer represented by the
Certificates;
WHEREAS, the Issuer desires to have the Administrator and the
Depositor, respectively, perform certain of the duties of the Issuer referred to
in the preceding clause, and to provide such
additional services consistent with the terms of this Agreement and the Related
Agreements as the Issuer or the Owner Trustee may from time to time request; and
WHEREAS, the Administrator and the Depositor have the capacity to
provide the respective services required hereby and are willing to perform such
services for the Issuer or the Owner Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
Section 1. Duties of the Administrator.
(a) The Administrator agrees to perform all of the duties of the Issuer
under the Depository Agreement. In addition to its duties performed under the
Depository Agreement, the Administrator shall take all appropriate action that
is the duty of the Issuer to take with respect to the following matters under
the Trust Agreement, Transfer and Servicing Agreement and the Indenture (section
references in parentheses are to sections of the Indenture):
(i) causing the Note Registrar to keep the Note Register,
appointing a successor upon the resignation of the Note Registrar,
causing the Note Register to be kept if the Issuer assumes the duties
of Note Registrar, and giving the Indenture Trustee and the Insurer
notice of any appointment of a new Note Registrar and the location, or
change in location, of the Note Register (Section 2.04);
(ii) execution of Definitive Notes in accordance with the
instructions of any Clearing Agency, the duty to attempt to locate a
qualified successor to the Clearing Agency, if necessary, and the
preparation of written notice to the Indenture Trustee of termination
of the book-entry system through the Clearing Agency (Section 2.12);
(iii) causing the Note Registrar to maintain an office for
registration of transfer or exchange of Notes (Section 3.02);
(iv) preparing Issuer Orders required to appoint any Paying
Agent, preparing written notices thereof to the Indenture Trustee and
the Insurer and causing newly appointed Paying Agents, if any, to
execute and deliver to the Indenture Trustee and the Insurer the
instruments specified in the Indenture regarding funds held in trust
(Section 3.03);
(v) preparing Issuer Orders required to direct the Paying Agent
to pay to the Indenture Trustee all sums held in trust by the Paying
Agent (Section 3.03);
(vi) calculating accrual of original issue discount, the accrual
of market discount, and the amortization of premium on the Notes and
calculating the resulting withholding taxes (Section 3.03(v));
(vii) executing all supplements, amendments, financing
statements, continuation statements, instruments of further assurance
and other instruments prepared
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by the Depositor and delivered to the Administrator for execution
necessary to protect the Collateral (Section 3.05);
(viii) upon written notice or actual knowledge thereof,
delivering notice to the Indenture Trustee and each Rating Agency of
each Rapid Amortization Event or Event of Master Servicer Termination
under the Transfer and Servicing Agreement and each default by the
Master Servicer or the Depositor, as applicable, under the Transfer and
Servicing Agreement (Section 3.19);
(ix) upon the request of the Indenture Trustee, executing and
delivering such further instruments and doing such further acts as may
be reasonably necessary or proper to carry out more effectively the
purpose of the Indenture (Section 3.20);
(x) delivering to each Rating Agency a notice of satisfaction and
discharge of the Indenture (Section 4.01);
(xi) furnishing the Indenture Trustee with the names and
addresses of Holders of Notes during any period when the Indenture
Trustee is not the Note Registrar (Section 7.01);
(xii) permitting the inspection of the Issuer's books to the
extent such books are maintained by the Administrator (Section 11.17);
and
(xiii) any other duties expressly required to be performed by the
Administrator under the Indenture or the Trust Agreement.
(b) The Administrator shall perform, or cause to be performed on behalf
of the Issuer, any duties expressly required to be performed by it under the
Trust Agreement, including its duties as Certificate Paying Agent and
Certificate Registrar.
(c) The Administrator shall perform the duties of the Indenture Trustee
specified in Section 5.02 of the Transfer and Servicing Agreement required to be
performed in connection with the Note Account.
(d) The Administrator shall (i) prepare all necessary UCC-3 financing
statements for the purpose of continuing or amending the UCC-1 financing
statements relating to Xxxxxx Brothers Bank, FSB ("Xxxxxx Bank"), Xxxxxx
Brothers Holdings Inc. ("Xxxxxx Holdings"), the Depositor and the Issuer, each
naming the appropriate party as debtor and the appropriate party as secured
party, as are required and for as long as this Agreement and the Indenture
remain outstanding, (ii) submit any such UCC-3 financing statements to the
proper parties for execution and (iii) file such UCC-3 financing statements in a
timely manner.
(e) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from
unaffiliated parties.
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In carrying out the foregoing duties, the Administrator shall be
subject to the same standard of care and have the same rights, indemnifications
and immunities as the Indenture Trustee under the Indenture, including, without
limitation, the right to compensation, reimbursement and indemnification.
The Administrator, in its capacity as the Certificate Registrar, and
upon a request received from the Owner Trustee, shall promptly notify the
Certificateholders of (i) any change in the Corporate Trust Office of the Owner
Trustee, (ii) any amendment to the Trust Agreement requiring notice be given to
the Certificateholders and (iii) any other notice required to be given to the
Certificateholders by the Owner Trustee under the Trust Agreement.
Section 2. Duties of the Depositor With Respect to the Indenture.
(a) The Depositor shall take all appropriate action that is the duty of
the Issuer to take with respect to the following matters under the Transfer and
Servicing Agreement and the Indenture (section references in parentheses are to
sections of the Indenture):
(i) consulting with the Owner Trustee regarding the duties of the
Issuer under the Transfer and Servicing Agreement and the Indenture,
and monitoring the performance of the Issuer and notifying the Owner
Trustee when action is necessary to comply with the Issuer's duties
under the Transfer and Servicing Agreement and the Indenture;
(ii) causing the preparation of the Notes for execution by the
Owner Trustee upon their issuance and upon the registration of any
transfer or exchange of the Notes (Sections 2.02, 2.04 and 2.05);
(iii) causing the preparation of an Issuer Order and related
documents for authentication of the Notes, executing such Issuer Order
on behalf of the Issuer and causing delivery of the same to the
Indenture Trustee (Section 2.02);
(iv) obtaining and preserving the Issuer's qualification to do
business in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other instrument and
agreement included in the Trust Estate (Section 3.04).
(v) causing the preparation of any financing statements,
continuation statements, instruments of further assurance and other
instruments necessary to protect the Collateral (Section 3.05);
(vi) the monitoring of the Issuer's compliance with its negative
covenants (Sections 3.08, 3.12. 3.13. 3.15, 3.16 and 3.18);
(vii) preparing the annual Officer's Certificate (and executing
the same on behalf of the Issuer) regarding the Issuer's compliance
with the terms Indenture (Section 3.09);
(viii) delivering notice to the Indenture Trustee and each Rating
Agency of each Rapid Amortization Event and/or Event of Master
Servicing Termination (Section 3.19);
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(ix) causing the preparation of an Officer's Certificate (and
executing the same on behalf of the Issuer) and the obtaining of the
Opinion of Counsel with respect to any request by the Issuer to the
Indenture Trustee to take any action under the Indenture (Sections 4.01
and 11.01);
(x) removing the Indenture Trustee for cause, appointing a
successor Indenture Trustee, if necessary obtaining the approval
thereof by the Insurer and, if necessary, petitioning a court of
competent jurisdiction for the appointment of a successor Indenture
Trustee (Section 6.08);
(xi) filing with the Indenture Trustee and the Commission and
providing a copy to the Insurer any additional information, documents
and reports and supplying the Indenture Trustee summaries of such
additional information, documents and reports (Section 7.03);
(xii) notifying the Indenture Trustee if and when the Notes are
listed on any securities exchange (Section 7.04);
(xiii) causing the preparation of an Issuer Request and Officer's
Certificate (and executing the same on behalf of the Issuer) and the
obtaining of an Opinion of Counsel, if necessary, for the release of
the Collateral, as defined in the Indenture (Section 8.04);
(xiv) causing the preparation of Issuer Orders (and executing the
same on behalf of the Issuer) and the obtaining of Opinions of Counsel
with respect to the execution of supplemental indentures and, if
necessary, the mailing to the Noteholders of notices with respect to
their consent to such supplemental indentures (Sections 9.01, 9.02,
9.03 and 9.07);
(xv) causing the preparation of Issuer Orders (and accounting the
same on behalf of the Issuer) and obtaining Opinions of Counsel with
respect to requests for action by Indenture Trustee (Section 11.01);
and
(xvi) effecting a recording of the Indenture and obtaining an
Opinion of Counsel (Section 11.14).
(b) The Depositor will indemnify the Owner Trustee and the
Administrator, and their respective agents for, and hold them harmless against,
any losses, liability or expense incurred without gross negligence or bad faith
on their part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Trust Agreement or this
Agreement, including the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance of
any of their powers or duties under the Trust Agreement or this Agreement.
(c) In addition to the duties of the Depositor set forth above, the
Depositor shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Related Agreements, and at
the request of the Owner Trustee shall take all appropriate action that it is
the duty of the Issuer to take
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pursuant to the Related Agreements. Subject to Section 5, and in accordance with
the directions of the Owner Trustee, the Depositor shall administer, perform or
supervise the performance of such other activities in connection with the
Collateral (including the Related Agreements) as are not covered by any of the
foregoing provisions and as are expressly requested by the Owner Trustee and are
reasonably within the capability of the Depositor.
Section 3. Records. The Administrator shall maintain appropriate books
of account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Depositor at any time during normal business hours.
Section 4. Compensation. The Administrator will perform the duties and
provide the services called for under Section 1 above for such compensation as
shall be agreed upon between the Administrator and Xxxxxx Brothers Inc. The fees
of the attorneys delivering any Opinion of Counsel, and any other amounts of
out-of-pocket expenses (documented to the satisfaction of the Depositor and
Xxxxxx Brothers Inc., in their reasonable discretion) reasonably incurred by the
Administrator pursuant to this Agreement shall be paid by the Depositor and
Xxxxxx Brothers Inc., which, by their execution hereof, agree to pay such
reasonable fees and expenses to the Administrator.
Section 5. Additional Information to be Furnished to the Issuer. The
Depositor shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 6. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
Section 7. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator or the Depositor, respectively, and either of
the Issuer or the Owner Trustee, as members of any partnership, joint venture,
association, syndicate, unincorporated business or other separate entity, (ii)
shall be construed to impose any liability as such on any of them or (iii) shall
be deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
Section 8. Other Activities of Administrator and the Depositor. Nothing
herein shall prevent the Administrator, the Depositor or their respective
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity for any other person or entity even though such
person or entity may engage in business activities similar to those of the
Issuer or the Owner Trustee.
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Section 9. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the termination of the
Trust Agreement in accordance with its terms, upon which event this Agreement
shall automatically terminate.
(b) Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Issuer with at least 60 days' prior written
notice.
(c) Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator immediately upon written notice of termination from the Issuer to
the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default cannot
be cured in such time, shall not give within ten days such assurance of
cure as shall be reasonably satisfactory to the Issuer); or
(ii) a court having jurisdiction in the premises shall (x) enter
a decree or order for relief, which decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or (y) appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property,
or (z) order the winding-up or liquidation of the Administrator's
affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(d) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer in accordance with the Trust Agreement and (ii) such
successor Administrator shall have agreed in writing to be bound by the terms of
this Agreement in the same manner as the Administrator is bound hereunder.
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If a successor Administrator does not take office within 60 days after
the retiring Administrator resigns or is removed, the resigning or removed
Administrator or the Issuer may petition any court of competent jurisdiction for
the appointment of a successor Administrator.
(f) The appointment of any successor Administrator shall be effective
only after receipt of a letter from each Rating Agency to the effect that such
proposed appointment will not cause a reduction or withdrawal of the then
current ratings of the Notes.
(g) Subject to Sections 9(e) and 9(f), the Administrator acknowledges
that upon the appointment of a successor Indenture Trustee pursuant to Section
6.08 of the Indenture, the Administrator shall immediately resign and such
successor Indenture Trustee shall automatically become the Administrator under
this Agreement. Any such successor Indenture Trustee shall be required to agree
to assume the duties of the Administrator under the terms and conditions of this
Agreement in its acceptance of appointment as successor Indenture Trustee.
Section 10. Action upon Termination, Resignation or Removal of the
Administrator. Promptly upon the effective date of termination of this Agreement
or the resignation or removal of the Administrator pursuant to Section 9, the
Administrator shall be entitled to be paid all fees and reimbursable expenses,
including any reasonable out-of-pocket attorneys' fees, accruing to it to the
date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to Section 9 deliver to the successor
Administrator all property and documents of or relating to the Collateral then
in the custody of the Administrator, or if this Agreement has been terminated,
to the Depositor. In the event of the resignation or removal of the
Administrator pursuant to Section 9, the Administrator shall cooperate with the
Issuer and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
Section 11. Notices. Any notice, report or other communication given
hereunder shall be in writing, delivered by mail, overnight courier or facsimile
and addressed as follows:
(a) if to the Issuer, to:
GreenPoint Mortgage Funding Trust 2005-HE3
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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(b) if to the Administrator, to:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services -
GreenPoint 2005-HE3
Telephone: 000-000-0000
Facsimile: 000-000-0000
(c) if to the Owner Trustee, to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
(d) if to the Depositor, to:
Xxxxxx ABS Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, hand
delivered or faxed to the address of such party as provided above.
Section 12. Amendments.
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders of the Notes or
the Certificates, (i) to cure any ambiguity, (ii) to cause the provisions herein
to conform to or be consistent with or in furtherance of the statements made
with respect to the Securities, the Issuer or this Agreement in any Offering
Document, or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement or
(iv) to add, delete, or amend any provisions to the extent necessary or
desirable to comply with any requirements imposed by the Code. No such amendment
effected pursuant to clause (iii) of the preceding sentence shall, as evidenced
by an Opinion of Counsel (which shall be an expense of the party requesting such
amendment and shall not be an expense of the Trust), adversely affect the tax
status of the REMICs created by the Trust Agreement, nor shall such amendment
adversely affect in any material respect the interests of any Holder or the
Insurer. Prior to entering into any amendment without the consent of Holders
pursuant to this paragraph, the Administrator may require an Opinion of Counsel
(at
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the expense of the party requesting such amendment) to the effect that such
amendment is permitted under this paragraph. Any such amendment shall be deemed
not to adversely affect in any material respect any Holder and the opinion to
such effect will not be required to be given, if the Administrator receives
written confirmation from each Rating Agency that such amendment will not cause
such Rating Agency to reduce the then current rating assigned to the Notes
without taking into account the Policy.
(b) This Agreement may also be amended from time to time by the parties
hereto with the consent of the Holders of not less than 66-2/3% of the Note
Principal Amount of each Class of Notes, the Insurer (so long as the Class A
Notes are Outstanding) and of the Holders of the Certificates for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided, however, that no such amendment may (i) increase or reduce in
any manner the amount of, or accelerate or delay the timing of, collections of
payments on the Collateral or payments or distributions, as applicable, that
shall be required to be made for the benefit of the Noteholders or the
Certificateholders or (ii) reduce the aforesaid percentage of the Class
Principal Amount of the Notes required to consent to any such amendment, in the
case of clause (i) without the consent of the Holders of all the outstanding
Notes and the Certificates, and in the case of clause (ii) without the consent
of the Holders of all the outstanding Notes. For purposes of this paragraph,
references to "Holder" or "Holders" shall be deemed to include, in the case of
Book-Entry Notes, the related Note Owners.
(c) Promptly after the execution of any such amendment, the
Administrator shall furnish a copy of such amendment to each Holder, the
Depositor and to each Rating Agency.
(d) It shall not be necessary for the consent of Holders under this
Section 12 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Administrator may prescribe.
(e) The Owner Trustee may, but shall not be obligated to, enter into
any amendment which affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
Section 13. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Owner Trustee and the Depositor, and the Rating Agency Condition
in respect thereof has been satisfied. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Owner Trustee or the Depositor to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Issuer, the Owner Trustee and the Depositor an agreement in
which such corporation or other organization agrees to be bound hereunder by the
terms of said assignment in the same manner as the Administrator is bound
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hereunder. Subject to the foregoing, this Agreement shall bind any successors or
assigns of the parties hereto.
Section 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 15. Headings. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 16. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute one and
the same agreement.
Section 17. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall 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 18. Not Applicable to LaSalle Bank National Association in
Other Capacities. Nothing in this Agreement shall affect any obligation LaSalle
Bank National Association may have in any other capacity.
Section 19. Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuer and in no event shall Wilmington Trust
Company in its individual capacity or any beneficial owner of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
Section 20. Limitation of Liability of the Administrator;
Indemnification. Notwithstanding anything herein to the contrary, this Agreement
has been countersigned by LaSalle Bank National Association not in its
individual capacity but solely in its capacity as Administrator and in no event
shall the Administrator in its individual capacity have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder, as to all of which recourse shall be had solely to the assets
of the Issuer. The Depositor and Xxxxxx Brothers Inc. shall hereby agree to
jointly and severally indemnify the Administrator, the Certificate Paying Agent,
the Certificate Registrar and the Securities Intermediary against any and all
loss, liability or expense (including attorney's fees) incurred by any of them
in connection with the performance of their respective duties under the Related
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Agreements. The Administrator, the Certificate Paying Agent, the Certificate
Registrar and the Securities Intermediary shall notify each of the Issuer, the
Depositor and Xxxxxx Brothers Inc. (collectively the "Indemnifying Parties")
promptly of any claim for which it may seek indemnity. Failure by any such party
to so notify the Indemnifying Parties shall not relieve the Indemnifying Parties
of their obligations hereunder. The Indemnifying Parties shall defend any such
claim, and the Administrator, the Certificate Paying Agent and the Securities
Intermediary may have separate counsel and the Indemnifying Parties shall pay
the fees and expenses of such counsel. The Indemnifying Parties need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Administrator, the Certificate Paying Agent, the Certificate
Registrar or the Securities Intermediary to the extent attributable to any such
party's own willful misconduct, negligence or bad faith.
Each of such parties shall be third-party beneficiaries of this Section
20 and shall be entitled to rely upon and to directly enforce this Section. The
payment and indemnification obligations of the Indemnifying Parties under the
Related Agreements shall survive the resignation or removal of either of such
parties and the termination of this Agreement and the Related Agreements.
Section 21. Benefit of Agreement. It is expressly agreed that in
performing its duties under this Agreement, the Administrator will act for the
benefit of Holders of the Securities as well as for the benefit of the Insurer
and the Issuer, and that such obligations on the part of the Administrator shall
be enforceable at the instance of the Indenture Trustee, the Insurer and the
Issuer.
Section 22. Bankruptcy Matters. No party to this Agreement shall take
any action to cause the Depositor or the Issuer to dissolve in whole or in part
or file a voluntary petition or otherwise initiate proceedings to have the
Depositor or the Issuer adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Depositor or the
Issuer, or file a petition seeking or consenting to reorganization or relief of
the Depositor or the Issuer as debtor under any applicable federal or state law
relating to bankruptcy, insolvency, or other relief for debtors with respect to
the Depositor or the Issuer; or seek or consent to the appointment of any
trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator
(or other similar official) of the Depositor or the Issuer or of all or any
substantial part of the properties and assets of the Depositor or the Issuer, or
cause the Issuer to make any general assignment for the benefit of creditors of
the Depositor or the Issuer, or take any action in furtherance of any of the
above actions.
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
GREENPOINT MORTGAGE FUNDING TRUST 2005-HE3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Administrator
By: /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
XXXXXX ABS CORPORATION,
as Depositor
By: /s/ Xxxxx Xxxxx
-----------------
Name: Xxxxx Xxxxx
Title: Managing Director
Acknowledged by, solely
for purposes of Section 4 and Section 20:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
