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PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION IV
(Depositor)
and
U.S. BANK NATIONAL ASSOCIATION
(Grantor Trustee)
and
EMPIRE FUNDING CORP.
(Transferor and Servicer)
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GRANTOR TRUST AGREEMENT
Dated as of November 1, 1998
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EMPIRE FUNDING GRANTOR TRUST 1998-3
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions
ARTICLE II
CONVEYANCE OF HOME LOANS; ORIGINAL ISSUANCE OF GRANTOR TRUST CERTIFICATE
Section 2.01. Conveyance of the Home Loans
Section 2.02. Acceptance by Grantor Trustee; Authentication
of Grantor Trust Certificate
Section 2.03. Ownership and Possession of Home Loan Files
Section 2.04. Books and Records; Sale or Security Interest
Section 2.05. Delivery of Home Loan Documents
Section 2.06. Acceptance by the Grantor Trustee of the Home Loans;
Certain Substitutions; Certification by the Custodian
Section 2.07. Reserved
Section 2.08. Release and Reconveyance of Home Loans
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Depositor
ARTICLE IV
THE GRANTOR TRUST CERTIFICATE
Section 4.01. The Grantor Trust Certificate
Section 4.02. Registration, Transfer and Exchange of Grantor Trust Certificate
Section 4.03. Mutilated, Destroyed, Lost or Stolen Grantor Trust Certificate
Section 4.04. Persons Deemed Owners
Section 4.05. Maintenance of Office or Agency
ARTICLE V
GRANTOR TRUST ACCOUNTS; PAYMENTS TO GRANTOR TRUST HOLDER
Section 5.01. Distributions from Collection Account
ARTICLE VI
CONCERNING THE GRANTOR TRUSTEE
Section 6.01. Duties of Grantor Trustee
Section 6.02. Certain Matters Affecting the Grantor Trustee
Section 6.03. Grantor Trustee not Required to Make Investigation
Section 6.04. Grantor Trustee's Fees
Section 6.05. Compliance with Code
Section 6.06. Eligibility Requirements for Grantor Trustee
Section 6.07. Resignation and Removal of Grantor Trustee
Section 6.08. Successor Grantor Trustee
Section 6.09. Merger or Consolidation of Grantor Trustee
Section 6.10. Authenticating Agent
ARTICLE VII
TERMINATION
Section 7.01. Termination
Section 7.02. Procedure Upon Termination of Grantor Trust
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Binding Nature of Agreement; Assignment
Section 8.02. Entire Agreement
Section 8.03. Amendment
Section 8.04. Governing Law
Section 8.05. Notices
Section 8.06. Severability of Provisions
Section 8.07. Indulgences; No Waivers
Section 8.08. Headings Not To Affect Interpretation
Section 8.09. Benefits of Agreement
Section 8.10. Counterparts
Section 8.11. Third Party Beneficiary
EXHIBIT A FORM OF GRANTOR TRUST CERTIFICATE
EXHIBIT B FORM OF INVESTMENT REPRESENTATION LETTER
THIS GRANTOR TRUST AGREEMENT ("Grantor Trust Agreement" or "Agreement"),
dated as of November 1, 1998, by and among PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION IV, as Depositor, U.S. BANK NATIONAL ASSOCIATION, as Grantor Trustee
and EMPIRE FUNDING CORP., as Transferor and Servicer.
The parties hereto intend that this Grantor Trust Agreement be construed so
as to create an "investment trust" formed to facilitate the direct investment by
the Grantor Trust Holder in the assets of the Grantor Trust Estate, within the
meaning of Section 301.7701-4(c) of the regulations of the U.S. Department of
the Treasury, and not a partnership or an association taxable as a corporation,
and that the rights, duties, and powers of the Grantor Trustee hereunder be
construed so as not to confer on the Grantor Trustee any power to vary the
investment of the Grantor Trust Holder by taking advantage of market
fluctuations to improve its rate of return.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
meanings specified in this Article. Capitalized terms used without definition
herein shall have the respective meanings assigned to them in the Sale and
Servicing Agreement.
Act: The Securities Act of 1933, as amended, and as it may be amended from
time to time.
Authenticating Agent: Any authenticating agent appointed by the Grantor
Trustee pursuant to Section 6.10.
Certificate Register and Certificate Registrar: Respectively, the register
maintained pursuant to and the registrar provided for in Section 4.02. The
initial Certificate Registrar is the Grantor Trustee.
Corporate Trust Office: The principal office of the Grantor Trustee at
which at any particular time its corporate trust business shall be administered,
which office at date of execution of this Agreement is located at 000 Xxxx Xxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000; Attention: Corporate Trust Department, or at
such other address as the Grantor Trustee may designate from time to time by
notice to the Securities Insurer, the Grantor Trust Holder and the Issuer, or
the principal corporate trust office of any successor Grantor Trustee at the
address designated by such successor Grantor Trustee by notice to the Securities
Insurer, the Grantor Trust Holder and the Issuer.
Custodian: U.S. Bank National Association, a national banking association,
as custodian pursuant to the Custodial Agreement, or any successor thereto.
Cut-Off Date: Close of business on October 31, 1998.
DCR: Duff & Xxxxxx Credit Rating Co.
ERISA: The Employee Retirement Income Security Act of 1974, as amended from
time to time.
Grantor Trust Certificate: The pass-through certificate issued pursuant to
this Agreement, in substantially the form attached hereto as Exhibit A.
Grantor Trust Estate: The corpus of the trust created by this Agreement,
consisting of (i) such Home Loans as from time to time are subject to this
Agreement as listed in the Home Loan Schedule, as the same may be amended or
supplemented from time to time including by removal of Deleted Home Loans and
the addition of Qualified Substitute Home Loans, together with the Servicer's
Home Loan Files and the Grantor Trustee's Home Loan Files relating thereto and
all proceeds thereof, (ii) except with respect to any Unsecured Home Loans, the
Mortgages and security interests in Mortgaged Properties, (iii) all payments in
respect of interest on the Home Loans received on or after the Cut-Off Date
(less 13.33% of the interest payments received during the first Due Period which
shall be retained by the Transferor) and all payments in respect of principal
received after the Cut-Off Date, (iv) such assets as from time to time are
identified as Foreclosure Property, (v) the Depositor's rights under all
insurance policies with respect to the Home Loans and any Property Insurance
Proceeds, (vi) Net Liquidation Proceeds and Released Mortgaged Property
Proceeds, (vii) all rights of the Depositor under the Home Loan Purchase
Agreement (other than the Depositor's rights under Article V of the Home Loan
Purchase Agreement, which the Depositor shall not assign to the Grantor Trustee)
pursuant to which the Depositor acquired the Home Loans from the Transferor, and
(viii) all proceeds of any of the foregoing.
Grantor Trust Holder: The Person in whose name the Grantor Trust
Certificate is registered in the Certificate Register.
Grantor Trustee: U.S. Bank National Association, or any successor grantor
trustee appointed as herein provided.
Grantor Trustee Fee: With respect to any Payment Date, the fee payable to
the Grantor Trustee pursuant to Section 6.04 as compensation for its activities
hereunder.
Investment Representation Letter: As defined in Section 3.02(d).
Non-Recordation State: Any state with respect to which the Transferor shall
have delivered to the Grantor Trustee (and to each Rating Agency, in the case of
any state in which 10% or more by Principal Balance of the Mortgaged Properties
are located as of the Cut-Off Date) an opinion, memorandum or other written
assurance of counsel in a form reasonably acceptable to the Grantor Trustee
(and, if applicable, to each Rating Agency), to the effect that, as to any Home
Loan with respect to which the related Mortgaged Property is located in such
state, recordation of an Assignment of Mortgage in such state is not necessary
to (i) transfer title to the related Mortgage Note (a) from the Transferor to
the Depositor and (b) from the Depositor to the Grantor Trustee and (ii) pledge
to the Grantor Trustee all of the Depositor's rights under such Mortgage Note.
Non-U.S. Person: A Person that is not considered under the Code (i) a
citizen or resident of the United States, (ii) a corporation, partnership
(except to the extent provided in applicable Treasury regulations) or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, (iii) an estate whose income from sources without
the United States is includible in gross income for United States federal income
tax purposes regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more Persons who are U.S. Persons under this definition
have the authority to control all substantial decisions of such trust (or, to
the extent provided in applicable Treasury regulations, certain trusts in
existence on August 20, 1996 which are eligible to elect to be treated as such a
U.S. Person).
Officers' Certificate: Certificate signed on behalf of the applicable
entity by the Chairman of the Board, the Vice Chairman of the Board, the
President, any Senior Vice President or Vice President or Managing Director or
an Assistant Vice President (each, however denominated), the Treasurer, the
Secretary, one of the Assistant Treasurers or Assistant Secretaries, any Trust
Officer or other officer of the Depositor, the Transferor or the Corporate Trust
Office of the Grantor Trustee, as the case may be, customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, or an authorized officer of the Depositor, and delivered to
the Depositor and/or the Grantor Trustee, as the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to the Grantor
Trustee and the Securities Insurer, who, in the case of an opinion required
pursuant to Section 4.02, may be outside or salaried counsel for the Grantor
Trust Holder or any affiliate of the Grantor Trust Holder.
Percentage Interest: With respect to the Grantor Trust Certificate, the
undivided percentage interest as specified on the face of the Grantor Trust
Certificate.
Plan: As defined in Section 4.02(b).
Sale and Servicing Agreement: The Sale and Servicing Agreement, dated as of
November 1, 1998, among PaineWebber Mortgage Acceptance Corporation, as
depositor, Empire Funding Corp., as servicer and transferor, Norwest Bank
Minnesota, National Association, as master servicer, Empire Funding Home Loan
Owner Trust 1998-3, as issuer, and U.S. Bank National Association, as indenture
trustee and grantor trustee, as the same may be supplemented and amended.
Securities Insurer: MBIA Insurance Corporation, and any successor thereto.
Single Certificate: With respect to the Grantor Trust Certificate, a
certificate representing a minimum denomination of 100% Percentage Interest.
ARTICLE II
CONVEYANCE OF HOME LOANS;
ORIGINAL ISSUANCE OF GRANTOR TRUST CERTIFICATE
Section 2.01. Conveyance of the Home Loans. As of the Closing Date and
concurrently with the execution and delivery hereof, in consideration of the
Grantor Trustee's delivery of the Grantor Trust Certificate to the Issuer or the
Indenture Trustee, as its assignee, as initial Grantor Trust Holder, upon the
order of the Depositor, the Depositor, does hereby sell, transfer, assign, set
over and otherwise convey to the Grantor Trustee, without recourse, but subject
to the other terms and provisions of this Agreement, all of the right, title and
interest of the Depositor in and to the Grantor Trust Estate. The foregoing
sale, transfer, assignment, set over and conveyance does not, and is not
intended to, result in a creation or an assumption by the Grantor Trustee of any
obligation of the Depositor, the Transferor or any other person in connection
with the Grantor Trust Estate or under any agreement or instrument relating
thereto except as specifically set forth herein.
Section 2.02. Acceptance by Grantor Trustee; Authentication of Grantor
Trust Certificate. As of the Closing Date, the Grantor Trustee acknowledges the
conveyance to it of the Grantor Trust Estate, including all right, title and
interest of the Depositor in and to the Grantor Trust Estate, receipt of which
is hereby acknowledged by the Grantor Trustee and declares that the Grantor
Trustee holds and will hold the Grantor Trust Estate, including the Home Loans,
rights and agreements and other property, including property yet to be received
in the Grantor Trust Estate, in trust, upon the trusts herein set forth, for the
benefit of all present and future Grantor Trust Holders. Without limiting the
foregoing, and notwithstanding anything to the contrary herein, so long as the
Indenture Trustee is the Grantor Trust Holder, the Grantor Trustee declares and
agrees to hold the Grantor Trust Estate, in trust, upon the trusts set forth
herein, for the benefit of the Indenture Trustee and the Securities Insurer.
Concurrently with such receipt and assignment, the Grantor Trustee has executed,
authenticated and delivered upon the order of the Depositor, the Grantor Trust
Certificate duly authenticated by the Grantor Trustee in the authorized
percentage of 100% Percentage Interest and evidencing the entire beneficial
ownership of the Grantor Trust Estate. The Grantor Trustee acknowledges and
agrees that so long as the Indenture Trustee is the Grantor Certificate Holder,
the Grantor Trustee holds the Grantor Trust Estate subject to the terms of the
Owner Trust Agreement, the Sale and Servicing Agreement, the Indenture, the
Administration Agreement and the Insurance Agreement. To the extent permitted by
law, the Grantor Trustee agrees that it will, from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such supplements hereto and such further instruments as the Securities Insurer
may request and take such actions as necessary in the Securities Insurer's
judgment to effectuate the terms of the Basic Documents.
Section 2.03. Ownership and Possession of Home Loan Files. Upon the
issuance of the Grantor Trust Certificate, with respect to the Home Loans, the
ownership of each Debt Instrument, the related Mortgage and the contents of the
related Servicer's Home Loan File and the Grantor Trustee's Home Loan File shall
be vested in the Grantor Trustee for the benefit of the Grantor Trust Holder,
although possession of the Servicer's Home Loan Files (other than items required
to be maintained in the Grantor Trustee's Home Loan Files) on behalf of and for
the benefit of the Grantor Trust Holder shall remain with the Servicer, and the
Custodian shall take possession of the applicable Grantor Trustee's Home Loan
Files as contemplated in Section 2.05 and Section 2.06 hereof.
Section 2.04. Books and Records; Sale or Security Interest. The sale of
each Home Loan shall be reflected on the balance sheets and other financial
statements of the Depositor, as a sale of assets by the Depositor, under GAAP.
Each of the Servicer and the Custodian shall be responsible for maintaining, and
shall maintain, a complete set of books and records for each Home Loan which
shall be clearly marked to reflect the ownership of each Home Loan by the
Grantor Trustee for the benefit of the Grantor Trust Holder.
It is the intention of the parties hereto that the transfers and
assignments contemplated by this Agreement shall constitute a sale of the Home
Loans and the other property specified in Section 2.01 hereof from the Depositor
to the Grantor Trustee and such property shall not be property of the Depositor.
If the assignment and transfer of the Home Loans and the other property
specified in Section 2.01 hereof to the Grantor Trustee pursuant to this
Agreement or the conveyance of the Home Loans or any of such other property to
the Grantor Trustee is held or deemed not to be a sale or is held or deemed to
be a pledge of security for a loan, the Depositor intends that the rights and
obligations of the parties shall be established pursuant to the terms of this
Agreement and that, in such event, (i) the Depositor shall be deemed to have
granted and does hereby grant to the Grantor Trustee a first priority security
interest in the entire right, title and interest of the Depositor in and to the
Grantor Trust Estate pursuant to Section 2.01 hereof and all proceeds thereof
and (ii) this Agreement shall constitute a security agreement under applicable
law. Within ten (10) days of the Closing Date, the Depositor shall cause to be
filed UCC-1 financing statements naming the Grantor Trustee as "secured party"
and describing the Home Loans being sold by the Depositor to the Grantor Trust
with the office of the Secretary of State of the state in which the Depositor is
located.
Section 2.05. Delivery of Home Loan Documents.
(a) With respect to each Home Loan, the Depositor and the Transferor shall,
on the Closing Date, deliver or caused to be delivered to the Custodian, as the
designated agent of the Grantor Trustee, each of the following documents
(collectively, the "Grantor Trustee's Home Loan File"):
(i) The original Debt Instrument, endorsed in blank or in the
following form: "Pay to the order of U.S. Bank National Association, as
Grantor Trustee under the Grantor Trust Agreement, dated as of November
1, 1998, Empire Funding Grantor Trust 1998-3, without recourse", with
all prior and intervening endorsements showing a complete chain of
endorsement from origination of the Home Loan to the Transferor;
(ii) If such Home Loan is secured by a Mortgage, the original
Mortgage with evidence of recording thereon (or, if the original
Mortgage has not been returned from the applicable public recording
office or is not otherwise available, a copy of the Mortgage certified
by a Responsible Officer of the Transferor or by the closing attorney
or by an officer of the title insurer or agent of the title insurer
which issued the related title insurance policy, if any, or commitment
therefor to be a true and complete copy of the original Mortgage
submitted for recording) and, if the Mortgage was executed pursuant to
a power of attorney, the original power of attorney with evidence of
recording thereon (or, if the original power of attorney has not been
returned from the applicable public recording office or is not
otherwise available, a copy of the power of attorney certified by a
Responsible Officer of the Transferor or by the closing attorney or by
an officer of the title insurer or agent of the title insurer which
issued the related title insurance policy, if any, or commitment
therefor, to be a true and complete copy of the original power of
attorney submitted for recording);
(iii) If such Home Loan is secured by a Mortgage, the original
executed Assignment of Mortgage, in recordable form. The Assignment of
Mortgage may be a blanket assignment, to the extent such assignment is
effective under applicable law, for Mortgages covering Mortgaged
Properties situated within the same county. If the Assignment of
Mortgage is in blanket form, an Assignment of Mortgage need not be
included in the individual Grantor Trustee's Home Loan File;
(iv) If such Home Loan is secured by a Mortgage, all original
intervening assignments of mortgage, with evidence of recording
thereon, showing a complete chain of assignment from origination of the
Home Loan to the Transferor (or, if any such assignment of mortgage has
not been returned from the applicable public recording office or is not
otherwise available, a copy of such assignment of mortgage certified by
a Responsible Officer of the Transferor or by the closing attorney or
by an officer of the title insurer or agent of the title insurer which
issued the related title insurance policy, if any, or commitment
therefor to be a true and complete copy of the original assignment
submitted for recording); provided that the chain of intervening
recorded assignments shall not be required to match the chain of
intervening endorsements of the Debt Instrument so long as the chain of
intervening recorded assignments, if applicable, evidences one or more
assignments of the Mortgage from the original mortgagee ultimately to
the person who has executed the Assignment of Mortgage; and
(v) The original, or a copy certified by the Transferor to be
a true and correct copy of the original, of each assumption,
modification, written assurance or substitution agreement, if any.
(b) With respect to each Home Loan, the Transferor and the Depositor shall,
on the Closing Date, deliver or cause to be delivered to the Servicer, as the
designated agent of the Grantor Trustee, each of the following documents
(collectively, the "Servicer's Home Loan Files"): (i) an original or copy of
truth-in-lending disclosure, (ii) an original or copy of the credit application,
(iii) an original or copy of the consumer credit report, (iv) an original or
copy of verification of employment and income, or verification of
self-employment income, (v) if the Home Loan is a Combination Loan, an original
or copy of contract of work or written description with cost estimates, if any,
(vi) if the Home Loan is a Combination Loan for which the Transferor prepares an
inspection report, an original or copy of the report of inspection of
improvements to the Property, (vii) to the extent not included in (clause (ii)
of this Section 2.04(b), an original or copy of a written verification (or a
notice of telephonic verification, with written verification to follow) that the
Obligor at the time of origination was not more than 30 days delinquent on any
Superior Lien on the Mortgaged Property, (viii) a copy of the HUD-1 or HUD 1-A
Closing Statement indicating the sale price, or an existing Uniform Residential
Appraisal Report, or a Drive-by Appraisal documented on FHLMC Form 704, or a tax
assessment, or a full Uniform Residential Appraisal Report prepared by a
national appraisal firm in accordance with the Transferor's underwriting
guidelines, (ix) an original or a copy of a title search as of the time of
origination with respect to the Mortgaged Property in accordance with the
Transferor's underwriting guidelines and (x) a title document with respect to
such Home Loan reflecting that the title to the related Mortgaged Property is
vested at least 50% in the Obligor under such Home Loan.
(c) The Grantor Trustee shall cause the Custodian to take and maintain
continuous physical possession of the Grantor Trustee's Home Loan Files held by
it in the State of Minnesota, and in connection therewith, the Custodian shall
act solely as agent for the Grantor Trust Holder in accordance with the terms
hereof and, so long as the Indenture Trustee is the Grantor Trust Holder, the
Custodian shall also act as agent for the benefit of the Securities Insurer and
the Indenture Trustee and not as agent for the Transferor or any other party.
(d) Within 30 days after the Closing Date, the Transferor, at its own
expense, shall record each Assignment of Mortgage (which may be a blanket
assignment if permitted by applicable law) in the appropriate real property or
other records; provided, however, that the Transferor need not record any such
Assignment of Mortgage with respect to which the related Mortgaged Property is
located in a Non-Recordation State. With respect to any Assignment of Mortgage
as to which the related recording information is unavailable within 30 days
following the Closing Date, such Assignment of Mortgage shall be submitted for
recording within 30 days after receipt of such information but in no event later
than 180 days after the Closing Date. The Custodian on behalf of the Grantor
Trustee, upon receipt from the Transferor shall be required to retain a copy of
each Assignment of Mortgage submitted for recording. In the event that any such
Assignment of Mortgage is lost or returned unrecorded because of a defect
therein, the Transferor shall promptly prepare a substitute Assignment of
Mortgage or cure such defect, as the case may be, and thereafter the Transferor
shall be required to submit each such Assignment of Mortgage for recording.
If an Assignment Event occurs, the Servicer shall record all Assignments of
Mortgage with respect to which the related Mortgaged Properties are located in
Non-Recordation States. Any such assignment shall be at the expense of the
Transferor.
An "Assignment Event" shall occur upon (1) the occurrence of a Servicer
Termination Event, (2) the nonrenewal of the Servicer term, (3) the resignation
of the Servicer or (4) the delivery by the Securities Insurer of a written
request to the Servicer to record the assignments of such mortgages that were
not previously recorded because the Securities Insurer has determined, in its
reasonable judgment, that such recordation is necessary to protect the
Securities Insurer's interest with respect to such mortgage loans because (a) a
material adverse change has occurred with respect to the Applicant, (b) the
Insurer has been so advised by counsel as a result of a change that occurred
after the closing date in applicable law or interpretation thereof, or (c) with
respect to a particular mortgage loan, the insolvency of the related mortgagor.
(e) All recordings required pursuant to this Section 2.05 shall be
accomplished by and at the expense of the Transferor.
Section 2.06. Acceptance by the Grantor Trustee of the Home Loans; Certain
Substitutions; Certification by the Custodian.
(a) The Grantor Trustee agrees to cause the Custodian to execute and
deliver on the Closing Date an acknowledgment of receipt of the Grantor
Trustee's Home Loan File for each Home Loan held by it. The Grantor Trustee
declares that it will cause the Custodian to hold such documents and any
amendments, replacements or supplements thereto, as well as any other assets
included in the Grantor Trust Estate and delivered to the Custodian, in trust,
upon and subject to the conditions set forth herein. The Grantor Trustee agrees
to cause the Custodian to review each Grantor Trustee's Home Loan File held by
it within 45 days after the Closing Date (or, with respect to any Qualified
Substitute Home Loan, within 45 days after the conveyance of the related Home
Loan to the Grantor Trust) and to cause the Custodian to deliver to the
Transferor, the Depositor, the Grantor Trustee, the Servicer, the Master
Servicer and the Securities Insurer a certification (the "Custodian's Initial
Certification") to the effect that, as to each Home Loan listed in the Home Loan
Schedule (other than any Home Loan paid in full or any Home Loan specifically
identified as an exception to such certification), (i) all documents required to
be delivered to the Grantor Trustee pursuant to this Agreement are in its
possession or in the possession of the Custodian on its behalf (other than as
expressly permitted by Section 2.05 hereof), (ii) all documents delivered by the
Depositor and the Transferor to the Custodian pursuant to Section 2.05 hereof
have been reviewed by the Custodian and have not been mutilated or damaged and
appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Obligor) and relate to
such Home Loan, (iii) based on the examination of the Custodian on behalf of the
Grantor Trustee, and only as to the foregoing documents, the information set
forth on the Home Loan Schedule accurately reflects the information set forth in
the Grantor Trustee's Home Loan File and (iv) each Debt Instrument has been
endorsed as provided in Section 2.04 hereof. Neither the Grantor Trustee nor the
Custodian shall be under any duty or obligation (i) to inspect, review or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable or appropriate for the represented
purpose or that they are other than what they purport to be on their face or
(ii) to determine whether any Grantor Trustee's Home Loan File should include
any of the documents specified in Section 2.05(a)(v) hereof.
(b) The Servicer's Home Loan File shall be held in the custody of the
Servicer for the benefit of, and as agent for, the Grantor Trust Holder and the
Grantor Trustee as the owner thereof for so long as this Agreement continues in
full force and effect. It is intended that, by the Servicer's agreement pursuant
to this Section 2.06(b), the Grantor Trustee shall be deemed to have possession
of the Servicer's Home Loan Files for purposes of Section 9-305 of the Uniform
Commercial Code of the state in which such documents or instruments are located.
The Servicer (and the Master Servicer if it has actual knowledge) shall promptly
report to the Grantor Trustee any failure by it to hold the Servicer's Home Loan
File as herein provided and shall promptly take appropriate action to remedy any
such failure. In acting as custodian of such documents and instruments, the
Servicer agrees not to assert any legal or beneficial ownership interest in the
Home Loans or such documents or instruments. The Servicer agrees to indemnify
the Grantor Trust Holder, the Grantor Trustee or the Indenture Trustee and the
Securities Insurer for any and all liabilities, obligations, losses, damages,
payments, costs or expenses of any kind whatsoever which may be imposed on,
incurred by or asserted against the Grantor Trust Holder, the Grantor Trustee or
the Indenture Trustee and the Securities Insurer as the result of any act or
omission by the Servicer relating to the maintenance and custody of such
documents or instruments which have been delivered to the Servicer; provided,
however, that the Servicer will not be liable for any portion of any such amount
resulting from the negligence or misconduct of the Grantor Trust Holder, the
Grantor Trustee or the Indenture Trustee and the Securities Insurer; and
provided, further, that the Servicer will not be liable for any portion of any
such amount resulting from the Servicer's compliance with any instructions or
directions consistent with this Agreement issued to the Servicer by the Grantor
Trustee. The Grantor Trustee shall have no duty to monitor or otherwise oversee
the Servicer's performance as custodian hereunder.
(c) The Custodian shall, for the benefit of the Grantor Trust Holder, the
Indenture Trustee and the Securities Insurer review each Grantor Trustee's Home
Loan File within 60 days after the date it delivered a Custodian's Initial
Certification and deliver to the Transferor, the Depositor, the Grantor Trustee,
the Servicer, the Master Servicer and the Securities Insurer an updated
certification (a "Custodian's Updated Certification"), setting forth those
exceptions listed on the Custodian's Initial Certification which continue to
exist on the date of the Custodian's Updated Certification. With respect to any
Home Loans which are set forth as exceptions in the Custodian's Updated
Certification because recorded assignments (except as permitted by Section
2.05(d) hereof) or original or certified copies of Mortgages have not yet been
delivered to the Custodian, the Transferor shall cure such exceptions by
delivering such missing documents to the Custodian no later than 180 days after
the Closing Date.
The Custodian agrees, for the benefit of the Grantor Trust Holder, the
Indenture Trustee and the Securities Insurer to review each Grantor Trustee's
Home Loan File within 180 days after the Closing Date, and to deliver to the
Transferor, the Depositor, the Grantor Trustee, the Servicer, the Master
Servicer and the Securities Insurer a final certification (a "Custodian's Final
Certification"), setting forth those exceptions listed on the Custodian's
Updated Certification which continue to exist on the date of such Custodian's
Final Certification.
In performing any such review, the Custodian may conclusively rely on the
Transferor as to the purported genuineness of any such document and any
signature thereon. Neither the Grantor Trustee nor the Custodian shall have any
responsibility for determining whether any document is valid and binding,
whether the text of any assignment or endorsement is in proper or recordable
form, whether any document has been recorded in accordance with the requirements
of any applicable jurisdiction or whether a blanket assignment is permitted in
any applicable jurisdiction. If a material defect in a document constituting
part of a Grantor Trustee's Home Loan File is discovered, then the Depositor and
Transferor shall comply with the cure, substitution and repurchase provisions of
Section 3.05 of the Sale and Servicing Agreement.
Section 2.07. Reserved.
Section 2.08. Release and Reconveyance of Home Loans.
(a) A Home Loan shall be released by the Grantor Trustee and reconveyed to
the Transferor at any time (i) after a repurchase or substitution pursuant to
Section 3.05 of the Sale and Servicing Agreement, (ii) after liquidation of the
Home Loan in accordance with Section 4.10 or 4.11 of the Sale and Servicing
Agreement and the deposit in the Collection Account of all proceeds recovered
therefrom (net of any costs and expenses relating thereto), or (iii) upon the
termination of a Home Loan (due to, among other causes, a prepayment in full of
the Home Loan and sale or other disposition of the related Mortgaged Property),
if the Transferor delivers to the Grantor Trustee a written request (A)
identifying the Home Loan and the related Mortgaged Property to be released and
reconveyed, (B) requesting the release and reconveyance thereof, (C) setting
forth the amount deposited in the Collection Account with respect thereto, and
(D) certifying that the amount deposited in the Collection Account (x) equals
the Substitution Adjustment related to the Qualified Substitute Home Loan and
the Deleted Home Loan released from this Grantor Trust Agreement pursuant to
item (i) above, or (y) equals the entire amount of net proceeds recovered and
received with respect to such Home Loan and the related Mortgaged Property in
the event of a release from this Grantor Trust Agreement pursuant to items (ii)
or (iii) above, or (z) equals the Purchase Price related to a Defective Home
Loan pursuant to item (i) above.
(b) The Grantor Trustee shall, if requested by the Servicer, temporarily
release or cause either Custodian to temporarily release to the Servicer the
Grantor Trustee's Home Loan File held by such Custodian pursuant to the
provisions of Section 7.02 or Section 4.10(g) of the Sale and Servicing
Agreement upon compliance by the Servicer with the provisions thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Grantor Trustee, the Indenture
Trustee, the Securities Insurer and the Grantor Trust Holder that as of the
Closing Date:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has, and had at all relevant times, full power to own its property,
to carry on its business as currently conducted, to enter into and
perform its obligations under this Agreement and to create the Grantor
Trust pursuant to this Agreement;
(b) The execution and delivery of this Agreement by the
Depositor and its performance of and compliance with the terms of this
Agreement will not violate the Depositor's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach or acceleration of, any material contract, agreement or
other instrument to which the Depositor is a party or which may be
applicable to the Depositor or any of its assets;
(c) The Depositor has the full power and authority to enter
into and consummate the transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery by the
Grantor Trustee and the Transferor, constitutes a valid, legal and
binding obligation of the Depositor, enforceable against it in
accordance with the terms hereof, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting the rights of
creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(d) The Depositor is not in violation of, and the execution
and delivery of this Agreement by the Depositor and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any
order or regulation of any federal, state, municipal or governmental
agency having jurisdiction, which violation would materially and
adversely affect the condition (financial or otherwise) or operations
of the Depositor or its properties or materially and adversely affect
the performance of its duties hereunder;
(e) There are no actions or proceedings against, or
investigations of, the Depositor currently pending with regard to which
the Depositor has received service of process and no action or
proceeding against, or investigation of, the Depositor is, to the
knowledge of the Depositor, threatened or otherwise pending before any
court, administrative agency or other tribunal that (A) if determined
adversely, would prohibit its entering into this Agreement or render
the Grantor Trust Certificate invalid, (B) seek to prevent the issuance
of the Grantor Trust Certificate or the consummation of any of the
transactions contemplated by this Agreement or (C) if determined
adversely, would prohibit or materially and adversely affect the
performance by the Depositor of its obligations under, or the validity
or enforceability of, this Agreement or the Grantor Trust Certificate;
(f) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Depositor of, or compliance by the Depositor
with, this Agreement or the Grantor Trust Certificate, or for the
consummation of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations and orders, if any, that
have been obtained prior to the Closing Date;
(g) The Depositor is solvent, is able to pay its debts as they
become due and has capital sufficient to carry on its business and its
obligations hereunder; it will not be rendered insolvent by the
execution and delivery of this Agreement or its obligations hereunder;
no petition of bankruptcy (or similar insolvency proceeding) has been
filed by or against the Depositor prior to the date hereof;
(h) The Depositor did not convey the Home Loans to the Grantor
Trustee with any intent to hinder, delay or defraud any of its
creditors; the Depositor will not be rendered insolvent as a result of
the conveyance of the Home Loans to the Grantor Trustee;
(i) As of the Closing Date, the Depositor had good title to,
and was the sole owner of, each Home Loan free and clear of any lien
other than any such lien released simultaneously with the sale
contemplated herein, and, immediately upon each transfer and assignment
herein contemplated, the Depositor will have delivered to the Grantor
Trustee good title to, and the Grantor Trustee will be the sole owner
of, each Home Loan free and clear of any lien;
(j) The Depositor acquired title to each of the Home Loans in
good faith, without notice of any adverse claim;
(k) No Officers' Certificate, statement, report or other
document prepared by the Depositor and furnished or to be furnished by
it pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements
contained herein or therein not misleading;
(l) The Depositor is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as
amended; and
(m) The transfer, assignment and conveyance of the Debt
Instruments and the Mortgages by the Depositor pursuant to this
Agreement are not subject to the bulk transfer laws or any similar
statutory provisions in effect in any applicable jurisdiction.
ARTICLE IV
THE GRANTOR TRUST CERTIFICATE
Section 4.01. The Grantor Trust Certificate.
(a) The Grantor Trust Certificate shall be issued only in the minimum 100%
Percentage Interest of a Single Certificate and shall be substantially in the
form attached hereto as Exhibit A. On original issue the Grantor Trust
Certificate shall be executed and delivered by the Grantor Trustee to the
Indenture Trustee, as initial Grantor Trust Holder, upon the order of the
Depositor. The Grantor Trust Certificate shall be executed by manual or
facsimile signature on behalf of the Grantor Trustee by a Responsible Officer
thereof. The Grantor Trust Certificate bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Grantor Trustee shall bind the Grantor Trustee notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Grantor Trust Certificate. The Grantor Trust
Certificate shall not be entitled to any benefit under this Agreement, or be
valid for any purpose, unless manually countersigned by a Responsible Officer of
the Grantor Trustee, or unless there appears on the Grantor Trust Certificate a
certificate of authentication executed by the Authenticating Agent by manual
signature, and such countersignature or certificate upon the Grantor Trust
Certificate shall be conclusive evidence, and the only evidence, that the
Grantor Trust Certificate has been duly countersigned or authenticated and
delivered hereunder. The Grantor Trust Certificate shall be dated the date of
its countersignature or authentication.
(b) Notwithstanding anything to the contrary set forth herein, the Grantor
Trust Certificate shall be registered in the name of the Indenture Trustee,
unless the Securities Insurer shall have otherwise consented in writing.
Section 4.02. Registration, Transfer and Exchange of Grantor Trust
Certificate.
(a) The Grantor Trustee shall cause to be kept at one of the offices or
agencies to be maintained in accordance with the provisions of Section 4.05 a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Grantor Trustee shall provide for the registration of the Grantor
Trust Certificate and of transfers and exchanges of the Grantor Trust
Certificate as herein provided. The Grantor Trustee shall act as, or shall
appoint, a Certificate Registrar for the purpose of registering the Grantor
Trust Certificate and transfers and exchanges of the Grantor Trust Certificate
as herein provided.
Upon surrender for registration or transfer of the Grantor Trust
Certificate at any office or agency maintained for such purpose pursuant to
Section 4.05 (and subject to the provisions of this Section 4.02) the Grantor
Trustee shall execute, and shall date, countersign or authenticate (or cause the
Authenticating Agent to authenticate) and deliver, in the name of the designated
transferee or transferees, a new Grantor Trust Certificate of a like 100%
Percentage Interest.
No service charge shall be made for any transfer or exchange of the Grantor
Trust Certificate, but the Grantor Trustee or the Certificate Registrar may
require payment from the Grantor Trust Holder of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of the Grantor Trust Certificate.
The Grantor Trust Certificate surrendered for transfer and exchange shall
be canceled by the Certificate Registrar, the Grantor Trustee or the
Authenticating Agent in accordance with their standard procedures.
(b) Notwithstanding anything to the contrary set forth herein, the Grantor
Trust Certificate shall not (other than (i) the initial transfers of the Grantor
Trust Certificate by the Grantor Trustee to the Depositor, and by the Depositor
to the Issuer, (ii) the pledge of the Grantor Trust Certificate by the Issuer to
the Indenture Trustee pursuant to the terms of the Indenture) be offered, sold,
pledged, encumbered or otherwise transferred without the prior written consent
of the Securities Insurer. The Grantor Trust Certificate shall bear a legend to
such effect.
(c) No offer, sale or other transfer of the Grantor Trust Certificate shall
be made unless such transfer is made pursuant to an effective registration
statement or otherwise in accordance with the requirements under the Act, and
effective registration or qualification under applicable state securities laws,
or is made in a transaction which does not require such registration or
qualification. If a transfer (other than (i) the initial transfers of the
Grantor Trust Certificate by the Grantor Trustee to the Depositor, and by the
Depositor to the Issuer, (ii) the pledge of the Grantor Trust Certificate by the
Issuer to the Indenture Trustee pursuant to the terms of the Indenture) is to be
made in reliance upon an exemption from the Act, and under the applicable state
securities laws, then the prior written consent of the Securities Insurer must
be obtained and either: (i) the Certificate Registrar shall require that the
transferee deliver to the Certificate Registrar an investment representation
letter (the "Investment Representation Letter") substantially in the form of
Exhibit B attached hereto, which Investment Representation Letter shall certify,
among other things, that the transferee is an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Act or a
"qualified institutional buyer" as defined in Rule 144A under the Act, and the
Certificate Registrar may also require that the transferee deliver to the
Certificate Registrar an Opinion of Counsel if such transferee is not a
qualified institutional buyer within the meaning of Rule 144A under the Act; or
(ii) if the certifications described in the preceding clause (i) cannot be
provided (A) the Certificate Registrar shall require an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from registration or qualification under the
Act, applicable state securities laws and other relevant laws, which Opinion of
Counsel shall not be an expense of the Certificate Registrar, the Depositor, the
Grantor Trust or the Grantor Trustee, and (B) the Certificate Registrar shall
require the transferor to execute a certification in form and substance
satisfactory to the Certificate Registrar setting forth the facts surrounding
such transfer. In each case, the Certificate Registrar will be entitled without
further investigation to rely upon such certification or Opinion of Counsel. The
Holder desiring to effect such transfer shall, and does hereby agree to,
indemnify the Certificate Registrar, the Grantor Trustee and the Depositor
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. None of the Depositor, the
Grantor Trustee or the Certificate Registrar is under any obligation to register
or qualify the Grantor Trust Certificate.
Unless the Grantor Trust Certificate has been registered under the Act, the
Grantor Trust Certificate shall bear a legend substantially to the following
effect:
THIS GRANTOR TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS GRANTOR
TRUST CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION, PROVIDED, HOWEVER, THAT THIS GRANTOR TRUST
CERTIFICATE SHALL BE PLEDGED BY THE HOLDER THEREOF TO THE
INDENTURE TRUSTEE PURSUANT TO THE TERMS OF THE INDENTURE.
THE HOLDER OF THIS GRANTOR TRUST CERTIFICATE BY ITS
ACCEPTANCE HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH GRANTOR TRUST CERTIFICATE EXCEPT IN ACCORDANCE
WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
GRANTOR TRUST CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHO THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO
THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE GRANTOR
TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE LAST PAGE OF THIS GRANTOR TRUST CERTIFICATE, EXCEPT
IN THE CASE OF THE PLEDGE DESCRIBED ABOVE AND THE INITIAL
TRANSFERS OF THIS GRANTOR TRUST CERTIFICATE BY THE GRANTOR
TRUSTEE TO THE DEPOSITOR, AND BY THE DEPOSITOR TO THE
ISSUER.
THE INITIAL INVESTOR IN THIS GRANTOR TRUST CERTIFICATE, AND
EACH SUBSEQUENT PURCHASER OF THIS GRANTOR TRUST CERTIFICATE,
BY PURCHASING THIS GRANTOR TRUST CERTIFICATE OR AN INTEREST
HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE GRANTOR TRUST
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM
OF EXHIBIT B TO THE GRANTOR TRUST AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN
ACCREDITED INSTITUTIONAL INVESTOR, AND MAY ALSO BE REQUIRED
TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS GRANTOR TRUST CERTIFICATE IS SUBJECT TO THE TERMS OF
THE GRANTOR TRUST AGREEMENT AND (OTHER THAN (I) THE INITIAL
TRANSFERS OF THE GRANTOR TRUST CERTIFICATE BY THE GRANTOR
TRUSTEE TO THE DEPOSITOR, AND BY THE DEPOSITOR TO THE
ISSUER, (II) THE PLEDGE OF THE GRANTOR TRUST CERTIFICATE BY
THE ISSUER TO THE INDENTURE TRUSTEE PURSUANT TO THE TERMS OF
THE INDENTURE) CANNOT BE OFFERED, SOLD, PLEDGED, ENCUMBERED
OR OTHERWISE TRANSFERRED WITHOUT THE PRIOR WRITTEN CONSENT
OF THE SECURITIES INSURER AND THE HOLDER OF THIS GRANTOR
CERTIFICATE, BY ITS ACCEPTANCE HEREOF, AGREES TO SUCH TERMS.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Grantor Trust
Certificate. If (i) the Grantor Trust Certificate is surrendered to the Grantor
Trustee or the Authenticating Agent as mutilated or the Grantor Trustee or the
Authenticating Agent receives evidence to its satisfaction of the destruction,
loss or theft of the Grantor Trust Certificate, and (ii) there is delivered to
the Grantor Trustee or Authenticating Agent such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of notice
to the Grantor Trustee or Authenticating Agent that the Grantor Trust
Certificate has been acquired by a bona fide purchaser, the Grantor Trustee
shall execute and countersign or authenticate (or cause the Authenticating Agent
to authenticate), as the case may be, and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Grantor Trust Certificate, a new
Grantor Trust Certificate of like 100% Percentage Interest. Upon the issuance of
a new Grantor Trust Certificate under this Section, the Grantor Trustee or the
Certificate Registrar may require from the Grantor Trust Holder the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expense (including the fees and expenses of
the Grantor Trustee or Authenticating Agent) in connection therewith. Unless a
bona fide purchaser of the original Grantor Trust Certificate presents such
Grantor Trust Certificate, any duplicate Grantor Trust Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Grantor Trust, as if originally issued, whether or not the
lost, stolen, or destroyed Grantor Trust Certificate shall be found at any time.
Section 4.04. Persons Deemed Owners. Prior to the due presentation of the
Grantor Trust Certificate for registration or transfer, the Depositor, the
Grantor Trustee, the Certificate Registrar and any agent of the Depositor, the
Grantor Trustee or the Certificate Registrar may treat the Person in whose name
the Grantor Trust Certificate is registered as the owner of the Grantor Trust
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for all other purposes whatsoever, and neither the Depositor, the Grantor
Trustee, the Certificate Registrar nor any agent of the Depositor, the Grantor
Trustee or the Certificate Registrar shall be affected by notice to the
contrary.
Section 4.05. Maintenance of Office or Agency. The Grantor Trustee will
maintain, at its expense, an office or agency where the Grantor Trust
Certificate may be surrendered for registration or transfer or exchange and
where notices and demands to or upon the Certificate Registrar in respect of the
Grantor Trust Certificate and this Agreement may be served. The Grantor Trustee
initially designates the Corporate Trust Office and the principal corporate
trust office of the Authenticating Agent, if any, as its offices and agencies
for said purposes.
ARTICLE V
GRANTOR TRUST ACCOUNTS;
PAYMENTS TO GRANTOR TRUST HOLDER
Section 5.01. Distributions from Collection Account.
(a) On the seventh Business Day prior to each Payment Date, so long as the
Issuer or its assignee is the Grantor Trust Holder, the Indenture Trustee, in
accordance with Section 5.01(b)(2) of the Sale and Servicing Agreement, shall
withdraw from the Collection Account the Available Collection Amount for such
Payment Date and deposit such amount into the Note Payment Account. Such
deposits into the Note Payment Account from the Collection Account shall be
deemed to constitute distributions to and on behalf of the Grantor Trust Holder.
(b) The Indenture Trustee may also make withdrawals from the Collection
Account pursuant to Section 5.01(b)(3) of the Sale and Servicing Agreement.
ARTICLE VI
CONCERNING THE GRANTOR TRUSTEE
Section 6.01. Duties of Grantor Trustee. The Grantor Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement.
The Grantor Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Grantor Trustee which are specifically required to be furnished pursuant
to any provision of this Agreement, shall examine them to determine whether they
are in the form required by this Agreement but the Grantor Trustee shall not be
required to determine, confirm or recalculate information contained in such
instruments.
No provision of this Agreement shall be construed to relieve the Grantor
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Grantor Trustee shall be determined
solely by the express provisions of this Agreement, the Grantor Trustee shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Grantor Trustee and, in the
absence of bad faith on the part of the Grantor Trustee, the Grantor Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Grantor Trustee and conforming to the requirements of this Agreement;
(ii) The Grantor Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Grantor Trust Holder relating to the time, method and
place of conducting any proceeding for any remedy available to the Grantor
Trustee, or exercising any trust or power conferred upon the Grantor Trustee,
under this Agreement; and
(iii) The Grantor Trustee shall not be personally liable for any error of
judgment made in good faith by any Responsible Officer, unless it shall be
proved that the Grantor Trustee or such Responsible Officer was negligent in
ascertaining the pertinent facts.
None of the provisions contained in this Agreement shall require the
Grantor Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties as Grantor Trustee
hereunder or in the exercise of any of its rights or powers if there is
reasonable ground for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Section 6.02. Certain Matters Affecting the Grantor Trustee. Except as
otherwise provided in Section 6.01:
(i) The Grantor Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) The Grantor Trustee may consult with counsel, and any written advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such written advice or Opinion of Counsel;
(iii) The Grantor Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(iv) The Grantor Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; and
(v) All rights of action under this Agreement or under the Grantor Trust
Certificate, enforceable by the Grantor Trustee, may be enforced by it without
the possession of the Grantor Trust Certificate, or the production thereof at
the trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Grantor Trustee shall be brought in its name for
the benefit the Grantor Trust Holder, subject to the provisions of this
Agreement.
(vi) Notwithstanding anything to the contrary herein, the Grantor Trustee
shall be the same entity as the Indenture Trustee under the Indenture and the
Sale and Servicing Agreement, unless the Securities Insurer otherwise consents.
Section 6.03. Grantor Trustee not Required to Make Investigation. The
Grantor Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, or other paper or document (provided
the same appears regular on its face) or to take any remedial action, unless
directed in writing to do so by the Securities Insurer so long as no Securities
Insurer default has occurred and is continuing, the Securities Insurer; provided
however, that if the payment to the Grantor Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of any such investigation
or the taking of any such remedial action so directed by the Grantor Trust
Holder or the Securities Insurer is, in the opinion of the Grantor Trustee, not
reasonably assured to the Grantor Trustee by the security afforded to it by the
terms of this Agreement, the Grantor Trustee may require reasonable agreement
for the payment or reimbursement of any such expense or security for any such
liability as a condition to so proceeding. The reasonable expense of every such
investigation so directed by the Grantor Trust Holder shall be a nonrecourse
obligation of the Grantor Trust Holder, payable only to the extent excess funds
are available therefor, or, if paid by the Grantor Trustee, shall be a
nonrecourse obligation of the Grantor Trust Holder to pay the Grantor Trustee
upon demand, but only to the extent that excess funds are available therefor.
The reasonable expense of every such investigation so directed by the Securities
Insurer shall be paid, at the option of the Securities Insurer, by the
Securities Insurer or, if paid by the Grantor Trustee, shall be repaid by the
Issuer.
Section 6.04. Grantor Trustee's Fees. The Grantor Trustee shall be entitled
to be paid the Grantor Trustee Fee pursuant to Section 5.01(c) of the Sale and
Servicing Agreement. Except as otherwise provided herein, the Grantor Trustee
will be responsible for all expenses it incurs in respect of any of its duties
or obligations hereunder and will not be entitled to any additional amounts. The
Grantor Trustee acknowledges and agrees that the Grantor Trustee Fee constitutes
reasonable compensation for its activities as Grantor Trustee hereunder.
Section 6.05. Compliance with Code. The Grantor Trustee shall be authorized
to and shall prepare and file and furnish to the Grantor Trust Holder, or cause
to be prepared and filed and furnished, all federal, and if applicable, state
and local income tax and information returns or reports relating to the Grantor
Trust (including, without limitation, information with respect to interest or
discount income, gain or loss with respect to the Home Loans and reinvestment
income, gain or loss with respect to the Collection Account) at the time and in
the manner required by the Code. In connection with the filing of any such
returns, the Grantor Trustee shall have the right to employ accountants and
other personnel to assist in the preparation of such filings.
Section 6.06. Eligibility Requirements for Grantor Trustee. The Grantor
Trustee hereunder shall at all times be a corporation having its principal
office in a state and city acceptable to the Depositor and the Securities
Insurer, organized and doing business under the laws of such state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, or shall
be a member of a bank holding system, the aggregate combined capital and surplus
of which is at least $50,000,000, provided that the Grantor Trustee's separate
capital and surplus shall at all times be at least the amount specified in
Section 310(a)(2) of the Trust Indenture Act of 1939, shall be subject to
supervision or examination by federal or state authority, and, if no Securities
Insurer Default has occurred and is continuing, shall be acceptable to the
Securities Insurer. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such corporation 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 Grantor Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Grantor Trustee shall resign
immediately in the manner and with the effect specified in Section 6.07.
Section 6.07. Resignation and Removal of Grantor Trustee. The Grantor
Trustee may resign and be discharged from the trust hereby created only by (i)
giving written notice of resignation to the Depositor, the Securities Insurer
and the Grantor Trust Holder and (ii) arranging for a successor trustee to be
appointed. The successor trustee shall be acceptable to the Grantor Trust Holder
and, if no Securities Insurer Default has occurred and is continuing, the
Securities Insurer, shall be eligible in accordance with the provisions of
Section 6.06, and shall be compensated solely (A) pursuant to the provisions of
this Agreement, and (B) if such arrangement is not acceptable to such successor,
pursuant to an arrangement between the successor trustee and the resigning
Grantor Trustee. Any such resignation of the Grantor Trustee shall only be
effective upon the appointment of a successor trustee. Upon receiving such
notice of resignation, the Grantor Trust Holder shall promptly appoint a
successor trustee, acceptable to the Securities Insurer, by written instrument,
in quadruplicate, one copy of which instrument shall be delivered to the
resigning Grantor Trustee, one copy to the successor trustee, one copy to the
Securities Insurer and one copy to the Depositor. If no successor trustee shall
have been appointed and have accepted appointment within 60 days after the
giving of such notice of resignation, the resigning Grantor Trustee or the
Securities Insurer may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Grantor Trustee shall cease to be eligible in accordance
with the provisions of Section 6.06 and shall fail to resign after written
request for the Grantor Trustee's resignation by the Grantor Trust Holder or the
Securities Insurer, or if at any time the Grantor Trustee shall become incapable
of acting, or an order for relief shall have been entered in any bankruptcy or
insolvency proceeding with respect to the Grantor Trustee, or a receiver of the
Grantor Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Grantor Trustee or of its property or
affairs for the purpose of rehabilitation, conversion or liquidation, or in
order to change the status of the Grantor Trust for state tax reasons, then the
Grantor Trust Holder, with the consent of the Securities Insurer, shall remove
the Grantor Trustee and appoint a successor trustee by written instrument, in
quadruplicate, one copy of which instrument shall be delivered to the Grantor
Trustee so removed, one copy to the successor trustee, one copy to the
Securities Insurer and one copy to the Depositor.
The Grantor Trust Holder may at any time remove the Grantor Trustee, with
the consent of the Securities Insurer, and appoint a successor trustee by
written instrument or instruments, in quadruplicate, signed by such holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set of which shall be
delivered to the Grantor Trustee so removed, one complete set of which shall be
delivered to the Securities Insurer and one complete set of which shall be
delivered to the successor so appointed.
Any resignation or removal of the Grantor Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 6.08.
Section 6.08. Successor Grantor Trustee. Any successor trustee appointed as
provided in Section 6.07 shall execute, acknowledge and deliver to the Grantor
Trust Holder, the Depositor, the Securities Insurer and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective, and
such successor trustee, without any further act, deed or reconveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee documents
and statements relating to the Grantor Trust Estate held by it hereunder, and
the Depositor and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 6.06.
Upon acceptance of appointment by a successor trustee as provided in this
Section, the Grantor Trustee shall mail notice of the succession of such trustee
hereunder to the Grantor Trust Holder at its address as shown in the Certificate
Register. If the Grantor Trustee fails to mail such notice within ten days after
acceptance of the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Grantor Trustee.
Section 6.09. Merger or Consolidation of Grantor Trustee. Any Person into
which the Grantor Trustee may be merged or converted or with which it may be
consolidated, to which it may sell or transfer its corporate trust business and
assets as a whole or substantially as a whole or any Person resulting from any
merger, sale, transfer, conversion or consolidation to which the Grantor Trustee
shall be a party, or any Person succeeding to the business of the Grantor
Trustee, shall be the successor of the Grantor Trustee hereunder, provided that
(i) such Person shall be eligible under the provisions of Section 6.06, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding, and (ii)
the Grantor Trustee shall deliver an opinion of counsel to the Depositor and, if
no Securities Insurer Default has occurred and is continuing, to the Securities
Insurer to the effect that such merger, consolidation, sale or transfer will not
subject the Grantor Trust to federal, state or local tax.
Section 6.10. Authenticating Agent. The Grantor Trustee may appoint an
Authenticating Agent, which shall be authorized to act on behalf of the Grantor
Trustee in authenticating or countersigning the Grantor Trust Certificate.
Wherever reference is made in this Agreement to the authentication of the
Grantor Trust Certificate by the Grantor Trustee or the Grantor Trustee's
countersignature, such reference shall be deemed to include authentication on
behalf of the Grantor Trustee by the Authenticating Agent and a certification of
authentication executed on behalf of the Grantor Trustee by the Authenticating
Agent. The Authenticating Agent must be acceptable to the Depositor and the
Securities Insurer and must be a corporation organized and doing business under
the laws of the United States of America or of any state, having a principal
office and place of business in a state and city acceptable to the Depositor and
the Securities Insurer, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by Federal or state authorities.
Any corporation into which the Authenticating Agent 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 Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Grantor
Trustee or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30 day's
advance written notice of resignation to the Grantor Trustee, the Securities
Insurer and the Depositor. The Grantor Trustee may at any time terminate the
agency of the Authenticating Agent by giving written notice to the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time the Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.10, the Grantor Trustee promptly shall appoint
a successor Authenticating Agent, which shall be acceptable to the Depositor
and, if no Securities Insurer Default has occurred and is continuing, the
Securities Insurer, and shall give written notice of such appointment to the
Depositor and the Securities Insurer, and shall mail notice of such appointment
to the Grantor Trust Holder. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
6.10.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Grantor Trustee. Any
compensation paid to the Authenticating Agent shall be at the expense of the
Grantor Trustee pursuant to Section 6.04.
ARTICLE VII
TERMINATION
Section 7.01. Termination . The respective obligations and responsibilities
of the Depositor and the Grantor Trustee created hereby and the Grantor Trust
created hereby shall terminate only upon the liquidation of all the Home Loans
or the Securities Insurer's, the Master Servicer's or the Majority Residual
Interest Holders' purchase of the all the Home Loans pursuant to Section 11.02
of the Sale and Servicing Agreement and the termination of the Indenture and the
Insurance Agreement; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States of America to the Court of St. James's, living on the date hereof.
Section 7.02. Procedure Upon Termination of Grantor Trust .
(a) Notice of any termination pursuant to the provisions of Section 7.01,
specifying the Payment Date upon which the final distribution shall be made,
shall be given promptly by the Grantor Trustee by first class mail to the
Grantor Trust Holder, the Indenture Trustee and the Securities Insurer. Such
notice shall specify (A) the Payment Date upon which final distribution on the
Grantor Trust Certificate will be made upon presentation and surrender of the
Grantor Trust Certificate at the Corporate Trust Office, and (B) that the Record
Date otherwise applicable to such Payment Date is not applicable, distribution
being made only upon presentation and surrender of the Grantor Trust Certificate
at the office or agency of the Grantor Trustee therein specified. The Grantor
Trustee shall give such notice to the Depositor, the Indenture Trustee, the
Securities Insurer and the Certificate Registrar at the time such notice is
given to the Grantor Trust Holder.
(b) In the event that the Grantor Trust Holder does not surrender the
Grantor Trust Certificate for cancellation within three months after the time
specified in the above-mentioned written notice, the Grantor Trustee shall give
a second written notice to the Grantor Trust Holder to surrender the Grantor
Trust Certificate for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice the Grantor Trust
Certificate shall not have been surrendered for cancellation, the Grantor
Trustee may take appropriate steps to contact the Grantor Trust Holder
concerning surrender of the Grantor Trust Certificate, and the cost thereof
shall be paid out of the amounts distributable to such Grantor Trust Holder. If
within two years after the second notice the Grantor Trust Certificate shall not
have been surrendered for cancellation, the Grantor Trustee shall, subject to
applicable state law relating to escheatment, hold all amounts distributable to
the Grantor Trust Holder for the benefit of the Grantor Trust Holder. No
interest shall accrue on any amount held by the Grantor Trustee and not
distributed to a Grantor Trust Holder due to such Grantor Trust Holder's failure
to surrender its Grantor Trust Certificate for payment of the final distribution
therein in accordance with this Section.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Binding Nature of Agreement; Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties hereto the Indenture
Trustee, the Securities Insurer, the Issuer and their respective successors and
permitted assigns.
Section 8.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof.
Section 8.03. Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Transferor and the Grantor Trustee with the consent of the Grantor Trust Holder
and the Securities Insurer; provided, however, any amendments relating to or
affecting Article VII or this Section 8.03, or any other provision of this
Agreement relating to termination of the Grantor Trust or amendment of this
Agreement, shall also require the consent of all of the holders of all of the
Notes.
(b) Promptly after the execution of any such amendment, the Grantor Trustee
shall furnish written notification of the substance of such amendment to the
Grantor Trust Holder, the Securities Insurer and the Depositor.
(c) It shall be necessary for the consent of the Grantor Trust Holder under
this Section 8.03 for the Holders to approve the particular form of any proposed
amendment. The manner of obtaining such consent and of evidencing the
authorization of the execution thereof by the Grantor Trust Holder shall be
subject to such reasonable rules and procedures as the Grantor Trustee may
prescribe.
SECTION 8.04. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 8.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given when received by
(a) in the case of Depositor, to PaineWebber Mortgage Acceptance Corporation IV,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxx,
Esq., (b) in the case of the Grantor Trustee, to U.S. Bank National Association,
000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000; Attention: Structured
Finance/Empire Funding 1998-3, and (c) in the case of the Transferor, to Empire
Funding Corp., 0000 Xxxxx Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx
X. Xxxxx; (d) in the case of the Securities Insurer, MBIA Insurance Corporation,
000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention: IPM-SF (Empire Funding Home
Loan Owner Trust 1998-3), telephone: 000-000-0000, confirmation: 914-273-4545;
or as to each party such other address as may hereafter be furnished by such
party to the other parties in writing. Any notice required or permitted to be
mailed to a Grantor Trust Holder 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 a Grantor Trust
Holder receives such notice.
Section 8.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the Grantor Trust
Certificate or the rights of the Grantor Trust Holder thereof.
Section 8.07. Indulgences; No Waivers. Neither the failure nor any delay on
the part of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed a waiver of such right, remedy, power or privilege with
respect to any other occurrence. No waiver shall be effective unless it is in
writing and is signed by the party asserted to have granted such waiver.
Section 8.08. Headings Not To Affect Interpretation. The headings contained
in this Agreement are for convenience of reference only, and they shall not be
used in the interpretation hereof.
Section 8.09. Benefits of Agreement. Nothing in this Agreement or in the
Grantor Trust Certificate, express or implied, shall give to any Person, other
than the parties to this Agreement and their successors hereunder and the
Grantor Trust Holder, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement; provided, however, that notwithstanding the
foregoing, the holders of the Notes are and shall be intended third party
beneficiaries of this Agreement with respect to Section 8.03 hereof and the
Securities Insurer and the Indenture Trustee shall each be an intended third
party beneficiary in accordance with Section 8.11 hereof.
Section 8.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
Section 8.11. Third Party Beneficiary. The parties hereto acknowledge that
the Securities Insurer and the Indenture Trustee are each express third party
beneficiaries hereof entitled to enforce any rights reserved hereunder as if it
were actually a party hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Depositor, the Transferor and the Grantor Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first written above.
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION IV, as Depositor
By:_________________________________________
Name:
Title:
EMPIRE FUNDING CORP., as Transferor and
Servicer
By:_________________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
Grantor Trustee
By:_________________________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of _____________, 1998, before me, a notary public in and
for the State of New York, personally appeared _______________, known to me who,
being by me duly sworn, did depose and say that he/she resides at
___________________; that he/she is a __________________________ of PaineWebber
Mortgage Acceptance Corporation IV, one of the parties that executed the
foregoing instrument and that she is authorized by PaineWebber Mortgage
Acceptance Corporation IV to sign his/her name thereto.
___________________________
Notary Public
[NOTARIAL SEAL]
STATE OF _______________ )
) ss.:
COUNTY OF ______________ )
On this ___ day of _____________, 1998, before me, a notary public in and
for the State of _____________, personally appeared _____________, known to me
who, being by me duly sworn, did depose and say that he resides at
___________________; that he is a __________________ of Empire Funding Corp.,
one of the parties that executed the foregoing instrument and that he is
authorized by Empire Funding Corp. to sign his name thereto.
___________________________
Notary Public
[NOTARIAL SEAL]
STATE OF _______________ )
) ss.:
COUNTY OF ______________ )
On this ___ day of ____________, 1998, before me, a notary public in and
for the State of _________, personally appeared _____________, known to me who,
being by me duly sworn, did depose and say that he resides at
___________________; that he is a __________________ of U.S. Bank National
Association, one of the parties that executed the foregoing instrument and that
he is authorized by U.S. Bank National Association to sign his name thereto.
___________________________
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
FORM OF GRANTOR TRUST CERTIFICATE
THIS GRANTOR TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS GRANTOR TRUST CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION, PROVIDED, HOWEVER, THAT THIS GRANTOR TRUST CERTIFICATE
SHALL BE PLEDGED BY THE HOLDER THEREOF TO THE INDENTURE TRUSTEE PURSUANT TO THE
TERMS OF THE INDENTURE.
THE HOLDER OF THIS GRANTOR TRUST CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH GRANTOR TRUST CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (B) FOR SO LONG AS THIS GRANTOR TRUST CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO
THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE GRANTOR TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS GRANTOR TRUST CERTIFICATE, EXCEPT IN THE CASE
OF THE PLEDGE DESCRIBED ABOVE AND THE INITIAL TRANSFERS OF THIS GRANTOR TRUST
CERTIFICATE BY THE GRANTOR TRUSTEE TO THE DEPOSITOR, AND BY THE DEPOSITOR TO THE
ISSUER.
THE INITIAL INVESTOR IN THIS GRANTOR TRUST CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS GRANTOR TRUST CERTIFICATE, BY PURCHASING THIS GRANTOR TRUST
CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH
CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE GRANTOR TRUST AGREEMENT. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF EXHIBIT B TO THE GRANTOR TRUST AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN ACCREDITED INSTITUTIONAL
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS GRANTOR TRUST CERTIFICATE IS SUBJECT TO THE TERMS OF THE GRANTOR TRUST
AGREEMENT AND (OTHER THAN (I) THE INITIAL TRANSFERS OF THE GRANTOR TRUST
CERTIFICATE BY THE GRANTOR TRUSTEE TO THE DEPOSITOR, AND BY THE DEPOSITOR TO THE
ISSUER, (II) THE PLEDGE OF THE GRANTOR TRUST CERTIFICATE BY THE ISSUER TO THE
INDENTURE TRUSTEE PURSUANT TO THE TERMS OF THE INDENTURE) CANNOT BE OFFERED,
SOLD, PLEDGED, ENCUMBERED OR OTHERWISE TRANSFERRED WITHOUT THE PRIOR WRITTEN
CONSENT OF THE SECURITIES INSURER AND THE HOLDER OF THIS GRANTOR CERTIFICATE, BY
ITS ACCEPTANCE HEREOF, AGREES TO SUCH TERMS.
THE HOLDER OF THIS GRANTOR TRUST CERTIFICATE WILL BE TREATED AS THE OWNER OF A
PRO RATA UNDIVIDED BENEFICIAL INTEREST IN THE HOME LOANS. EACH TRANSFEREE OF
THIS GRANTOR TRUST CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS GRANTOR TRUST CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY, AS SET FORTH IN SECTION 4.02 OF THE GRANTOR TRUST AGREEMENT.
EMPIRE FUNDING GRANTOR TRUST 1998-3
evidencing an interest in a trust
the assets of which consist primarily
of the Home Loans
Certificate No. __
Percentage Interest evidenced
by this Grantor Trust Certificate: 100%
First Payment Date: December 28, 1998
THIS CERTIFIES THAT U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee is
the registered owner of the Percentage Interest evidenced by this Grantor Trust
Certificate in monthly distributions to the Grantor Trust Holder with respect to
the Grantor Trust consisting of a trust the assets of which consist primarily of
the Home Loans. The Grantor Trust was created pursuant to a Grantor Trust
Agreement dated as of November 1, 1998 ("Agreement") among PaineWebber Mortgage
Acceptance Corporation IV (the "Depositor"), Empire Funding Corp. (the
"Transferor"), and U.S. Bank National Association, as Grantor Trustee (the
"Grantor Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereinafter. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to such terms in the Agreement. This
Grantor Trust Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the holder of
this Grantor Trust Certificate by virtue of the acceptance hereof assents and by
which such holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on this
Grantor Trust Certificate to the Person in whose name this Grantor Trust
Certificate is registered at the close of business on the last day of the
calendar month preceding the month of such distribution, or if such day is not a
Business Day, the Business Day immediately preceding such day, in an amount
equal to the product of the Percentage Interest evidenced by this Grantor Trust
Certificate and the amount required to be distributed to the Grantor Trust
Holder on such Payment Date pursuant to Section 5.01 of the Agreement.
Distributions on this Grantor Trust Certificate will be made by the Grantor
Trustee by check mailed to the address of the Person entitled thereto, as such
name and address shall appear on the Certificate Register unless such Person
notifies the Grantor Trustee in writing at least five Business Days prior to a
Payment Date that such payments are to be made by wire transfer (at the expense
of the Grantor Trustee) of immediately available funds to the account specified
by such person. Notwithstanding the above, the final distribution on this
Grantor Trust Certificate will be made after due notice of the pendency of such
distribution and only upon presentation and surrender of this Grantor Trust
Certificate at the office or agency specified by the Trustee for that purpose in
the notice of final distribution.
No offer, sale, or other transfer of the Grantor Trust Certificate (other
than the initial transfers of the Grantor Trust Certificate by the Grantor
Trustee to the Depositor, and by the Depositor to the Issuer) shall be made
unless such transfer is made pursuant to an effective registration statement or
otherwise in accordance with the requirements under the Act, and effective
registration or qualification under applicable state securities laws, or is made
in a transaction which does not require such registration or qualification. If a
transfer (other than the initial transfer by the Grantor Trustee to the
Depositor or one by the Depositor or an affiliate thereof) is to be made in
reliance upon an exemption from the Act, and under the applicable state
securities laws, then the prior written consent of the Securities Insurer must
be obtained and either: (i) the Certificate Registrar shall require that the
transferee deliver to the Certificate Registrar an investment representation
letter (the "Investment Representation Letter") substantially in the form of
Exhibit B to the Grantor Trust Agreement, which Investment Representation Letter
shall certify, among other things, that the transferee is an institutional
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Act or a "qualified institutional buyer" as defined in Rule 144A under the Act,
and the Certificate Registrar may also require that the transferee deliver to
the Certificate Registrar an Opinion of Counsel if such transferee is not a
qualified institutional buyer within the meaning of Rule 144A under the Act; or
(ii) if the certifications described in the preceding clause (i) cannot be
provided (A) the Certificate Registrar shall require an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar and the Depositor that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from registration or qualification under the
Act, applicable state securities laws and other relevant laws, which Opinion of
Counsel shall not be an expense of the Certificate Registrar, the Depositor, the
Grantor Trust or the Grantor Trustee, and (B) the Certificate Registrar shall
require the transferor to execute a certification in form and substance
satisfactory to the Certificate Registrar setting forth the facts surrounding
such transfer. In each case, the Certificate Registrar will be entitled without
further investigation to rely upon such certification or Opinion of Counsel. A
Grantor Trust Holder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Certificate Registrar, the Grantor Trustee and the
Depositor 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 Grantor Trust
Holder shall pledge the Grantor Trust Certificate to the Indenture Trustee
pursuant to the terms of the Indenture.
The Agreement does not permit the amendment of the Agreement and the
modification of the rights and obligations of the Depositor, the Grantor Trustee
and the Transferor and the rights of the Grantor Trust Holder under the
Agreement without the consent of Grantor Trust Holder and, if no Securities
Insurer Default has occurred and is continuing, the Securities Insurer;
provided, however, any amendments relating to or affecting Article VII or
Section 8.03, or any other provision of the Agreement relating to termination of
the Grantor Trust or amendment of the Agreement, shall require the consent of
all of the holders of all of the Notes.
The Grantor Trust Certificate is issuable only as a registered Grantor
Trust Certificate without coupons in the Percentage Interest specified in the
Agreement.
The Grantor Trust Holder or the Securities Insurer may at any time remove
the Grantor Trustee with or without cause, and appoint a successor trustee. If
such removal is without cause, the Grantor Trust Holder shall be responsible for
making satisfactory arrangements for compensation of the successor trustee.
No service charge will be made for any such registration of transfer or
exchange, but the Grantor Trustee or the Certificate Registrar may require
payment from the Grantor Trust Holder of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The Depositor, the Grantor Trustee and the Certificate Registrar, and any
agent of the Depositor, the Grantor Trustee or the Certificate Registrar, may
treat the Person in whose name this Grantor Trust Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Grantor
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement in respect of the Grantor Trust
Certificate and the Grantor Trust created thereby shall terminate only upon the
liquidation of all the Home Loans or the Master Servicer's, the Securities
Insurer's or the Majority Residual Interest Holders' purchase of all the Home
Loans pursuant to Section 11.02 of the Sale and Servicing Agreement and the
termination of the Indenture and the Insurance Agreement; provided, however,
that the Trust Fund will in no event continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late ambassador of the United States to the Court of St. Xxxxx, living on the
date of the Agreement.
Unless this Grantor Trust Certificate has been countersigned by an
authorized officer of the Grantor Trustee, by manual signature, this Grantor
Trust Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Grantor Trustee has caused this Grantor Trust
Certificate to be duly executed as of the date set forth below.
Dated:
U.S. BANK NATIONAL ASSOCIATION, as
Grantor Trustee
By: _____________________________________
Name:
Title:
Countersigned:
U.S. BANK NATIONAL ASSOCIATION,
as Grantor Trustee
By: ____________________________________________
Name:
Title:
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the beneficial interest evidenced by the within Grantor Trust Certificate and
hereby authorizes the transfer of registration of such interest to assignee on
the Certificate Register of the Grantor Trust.
I (We) further direct the Certificate Registrar to issue a new Grantor
Trust Certificate of a like Percentage Interest, to the above named assignee and
deliver such Grantor Trust Certificate to the following address:
____________________________________________________________________
Social Security or other Identifying Number of Assignee:
____________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
[DISTRIBUTION INSTRUCTIONS]
The assignee should include the following for purposes of
distribution:
Distributions shall be made, if the assignee is eligible to receive
distributions in immediately available funds, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of ______________________________________________ account number ____________,
or, if mailed by check, to _________________________________. Applicable
statements should be mailed to _________________________________________
___________________________________________________________.
This information is provided by ______________________, the
assignee named above, or ___________________________________, as its agent.
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
U.S. Bank National Association
as Grantor Trustee and Certificate Registrar
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Structured Finance/Empire Funding 1998-3
Re: Transfer of Empire Funding Grantor Trust 1998-3,
Grantor Trust Certificate
------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 4.02 of the Grantor Trust
Agreement dated as of November 1, 1998 (the "Grantor Trust Agreement"), by and
among PaineWebber Mortgage Acceptance Corporation IV, as Depositor, Empire
Funding Corp., as Transferor, and U.S. Bank National Association, as Grantor
Trustee, on behalf of the holders of Empire Funding Grantor Trust 1998-3 Grantor
Trust Certificate (the "Grantor Trust Certificate"), in connection with the
transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of a 100% Percentage Interest in the Grantor Trust Certificate.
Terms used but not defined herein shall have the meanings ascribed thereto in
the Grantor Trust Agreement.
In connection with such transfer, the undersigned hereby represents and
warrants to you as follows:
[[For Institutional Accredited Investors] 1. The Purchaser is an
"institutional accredited investor" (an entity meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment in the Grantor Trust Certificate, and the Purchaser and
any accounts for which it is acting are each able to bear the economic risk of
the Purchaser's or such account's investment. The Purchaser is acquiring the
Grantor Trust Certificate purchased by it for its own account or for one or more
accounts (each of which is an "institutional accredited investor") as to each of
which the Purchaser exercises sole investment discretion. The Purchaser hereby
undertakes to reimburse the Grantor Trustee for any costs incurred by it in
connection with this transfer.]
[[For Qualified Institutional Buyers only] 1. The Purchaser is a "qualified
institutional buyer" within the meaning of Rule 144A ("Rule 144A") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"). The
Purchaser is aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information required to be
provided pursuant to paragraph (d)(4)(i) of Rule 144A.]
2. The Purchaser's intention is to acquire the Grantor Trust Certificate
(a) for investment for the Purchaser's own account or (b) for resale to (i)
"qualified institutional buyers" in transactions under Rule 144A, and not in any
event with the view to, or for resale in connection with, any distribution
thereof, or (ii) to "institutional accredited investors" meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Securities Act, pursuant to any other exemption from the registration
requirements of the Securities Act, subject in the case of this clause (ii) to
(a) the receipt by the Certificate Registrar of a letter substantially in the
form hereof, (b) the receipt by the Certificate Registrar of an opinion of
counsel acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the Securities Act, (c) the receipt by
the Certificate Registrar of such other evidence acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act and other applicable laws, and (d) a written undertaking to
reimburse the Grantor Trust for any costs incurred by it in connection with the
proposed transfer. The Purchaser understands that the Grantor Trust Certificate
(and any subsequent Grantor Trust Certificate) has not been registered under the
Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Grantor Trust Certificate (and any
Grantor Trust Certificate issued on transfer or exchange thereof) has not been
registered or qualified under the Securities Act or the securities laws of any
State or any other jurisdiction, and that the Grantor Trust Certificate cannot
be resold unless it is registered or qualified thereunder or unless an exemption
from such registration or qualification is available.
4. The Purchaser hereby undertakes to be bound by the terms and conditions
of the Grantor Trust Agreement in its capacity as an owner of the Grantor Trust
Certificate (the "Grantor Trust Holder"), in all respects as if it were a
signatory thereto. This undertaking is made for the benefit of the Grantor
Trust, the Grantor Trustee, the Certificate Registrar and all Grantor Trust
Holders present and future.
5. The Purchaser will not sell or otherwise transfer any portion of the
Grantor Trust Certificate, except in compliance with Section 4.02 of the Grantor
Trust Agreement.
[Please make all payments due on the Grantor Trust Certificate:*
_______________
* Please select (a) or (b)
_____ (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefore:
Account number _________ Institution __________________
_____ (b) by mailing a check or draft to the following address:
_________________________
_________________________
_________________________
Very truly yours,
_________________________
[The Purchaser]
By: ______________________
Name:
Title
Dated: ____ __, ____
Receipt hereby acknowledged:
_____________________________
