Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 1999-3
POOLING AND SERVICING AGREEMENT
between
GREEN TREE FINANCIAL CORPORATION
as Seller and Servicer
and
U.S. BANK NATIONAL ASSOCIATION
not in its individual capacity but solely as Trustee
Dated as of May 1, 1999
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
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SECTION 1.01. General................................................................. 1-1
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SECTION 1.02. Specific Terms.......................................................... 1-1
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SECTION 1.03. Calculations............................................................ 1-35
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ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF CONTRACTS
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SECTION 2.01. Closing................................................................. 2-1
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SECTION 2.02. Conditions to the Closing............................................... 2-2
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SECTION 2.03. Conveyance of the Subsequent Contracts.................................. 2-4
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SECTION 2.04. Acceptance by Trustee................................................... 2-6
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SECTION 2.05. REMIC Provisions........................................................ 2-6
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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SECTION 3.01. Representations and Warranties Regarding the Company.................... 3-1
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SECTION 3.02. Representations and Warranties Regarding Each Contract.................. 3-2
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SECTION 3.03. Representations and Warranties Regarding the Contracts in the Aggregate. 3-6
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SECTION 3.04. Representations and Warranties Regarding the Contract Files............. 3-8
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SECTION 3.05. Repurchase of Contracts or Substitution of Contracts for Breach of
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Representations and Warranties.......................................... 3-9
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SECTION 3.06. No Repurchase or Substitution Under Certain Circumstances............... 3-12
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SECTION 3.07. Staged-Funding Contract Reserve Account................................. 3-13
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ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
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SECTION 4.01. Custody of Contracts.................................................... 4-1
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SECTION 4.02. Filings................................................................. 4-2
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SECTION 4.03. Name Change or Relocation............................................... 4-2
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SECTION 4.04. Chief Executive Office.................................................. 4-2
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SECTION 4.05. Costs and Expenses...................................................... 4-3
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ARTICLE V
SERVICING OF CONTRACTS
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SECTION 5.01. Responsibility for Contract Administration.............................. 5-1
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SECTION 5.02. Standard of Care........................................................ 5-1
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SECTION 5.03. Records................................................................. 5-1
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SECTION 5.04. Inspection; Computer Tape............................................... 5-1
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SECTION 5.05. Certificate Account..................................................... 5-2
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SECTION 5.06. Enforcement............................................................. 5-4
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SECTION 5.07. Trustee to Cooperate.................................................... 5-5
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SECTION 5.08. Costs and Expenses...................................................... 5-6
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SECTION 5.09. Maintenance of Insurance................................................ 5-6
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-i-
SECTION 5.10. Repossession............................................................ 5-7
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SECTION 5.11. Commingling of Funds.................................................... 5-8
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SECTION 5.12. Retitling; Security Interests........................................... 5-8
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ARTICLE VI
REPORTS AND TAX MATTERS
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SECTION 6.01. Monthly Reports......................................................... 6-1
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SECTION 6.02. Certificate of Servicing Officer........................................ 6-1
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SECTION 6.03. Other Data.............................................................. 6-1
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SECTION 6.04. Annual Report of Accountants............................................ 6-1
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SECTION 6.05. Statements to Certificateholders........................................ 6-2
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SECTION 6.06. Payment of Taxes........................................................ 6-8
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ARTICLE VII
SERVICE TRANSFER
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SECTION 7.01. Event of Termination.................................................... 7-1
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SECTION 7.02. Transfer................................................................ 7-2
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SECTION 7.03. Trustee to Act; Appointment of Successor................................ 7-2
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SECTION 7.04. Notification to Certificateholders...................................... 7-3
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SECTION 7.05. Effect of Transfer...................................................... 7-3
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SECTION 7.06. Transfer of Certificate Account......................................... 7-4
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ARTICLE VIII
PAYMENTS
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SECTION 8.01. Monthly Payments........................................................ 8-1
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SECTION 8.02. Permitted Withdrawals from the Certificate Account...................... 8-2
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SECTION 8.03. Payments................................................................ 8-2
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SECTION 8.04. Limited Guarantee....................................................... 8-9
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SECTION 8.05. Company's or Servicer's Repurchase Option............................... 8-9
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SECTION 8.06. Capitalized Interest Account............................................ 8-10
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SECTION 8.07. Pre-Funding Account..................................................... 8-11
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ARTICLE IX
THE CERTIFICATES AND UNCERTIFICATED SUBSIDIARY INTERESTS
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SECTION 9.01. The Certificates........................................................ 9-1
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SECTION 9.02. Registration of Transfer and Exchange of Certificates................... 9-2
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SECTION 9.03. No Charge; Disposition of Void Certificates............................. 9-5
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SECTION 9.04. Mutilated, Destroyed, Lost or Stolen Certificates....................... 9-6
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SECTION 9.05. Persons Deemed Owners................................................... 9-6
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SECTION 9.06. Access to List of Certificateholders' Names and Addresses............... 9-6
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SECTION 9.07. Authenticating Agents................................................... 9-7
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ARTICLE X
INDEMNITIES
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SECTION 10.01. Company's Indemnities.................................................. 10-1
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SECTION 10.02. Liabilities to Obligors................................................ 10-1
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-ii-
SECTION 10.03. Tax Indemnification................................................... 10-1
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SECTION 10.04. Servicer's Indemnities................................................ 10-1
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SECTION 10.05. Operation of Indemnities.............................................. 10-2
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SECTION 10.06. REMIC Tax Matters..................................................... 10-2
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ARTICLE XI
THE TRUSTEE
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SECTION 11.01. Duties of Trustee..................................................... 11-1
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SECTION 11.02. Certain Matters Affecting the Trustee................................. 11-2
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SECTION 11.03. Trustee Not Liable for Certificates or Contracts...................... 11-3
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SECTION 11.04. Rights of Certificateholders to Direct Trustee and to Waive
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Event of Termination.................................................. 11-3
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SECTION 11.05. The Servicer to Pay Trustee's Fees and Expenses....................... 11-4
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SECTION 11.06. Eligibility Requirements for Trustee.................................. 11-4
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SECTION 11.07. Resignation or Removal of Trustee..................................... 11-5
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SECTION 11.08. Successor Trustee..................................................... 11-5
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SECTION 11.09. Merger or Consolidation of Trustee.................................... 11-6
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SECTION 11.10. Tax Returns........................................................... 11-6
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SECTION 11.11. Obligor Claims........................................................ 11-6
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SECTION 11.12. Appointment of Co-Trustee or Separate Trustee......................... 11-7
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SECTION 11.13. Agents of Trustee..................................................... 11-8
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ARTICLE XII
MISCELLANEOUS
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SECTION 12.01. Servicer Not to Assign Duties or Resign; Delegation of Servicing
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Functions............................................................. 12-1
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SECTION 12.02. Maintenance of Office or Agency....................................... 12-1
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SECTION 12.03. Termination........................................................... 12-2
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SECTION 12.04. Acts of Certificateholders............................................ 12-3
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SECTION 12.05. Calculations.......................................................... 12-4
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SECTION 12.06. Assignment or Delegation by Company................................... 12-4
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SECTION 12.07. Amendment............................................................. 12-5
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SECTION 12.08. Notices............................................................... 12-6
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SECTION 12.09. Merger and Integration................................................ 12-7
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SECTION 12.10. Headings.............................................................. 12-8
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SECTION 12.11. Governing Law......................................................... 12-8
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EXHIBIT A FORM OF CLASS A CERTIFICATE........................................... -1
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EXHIBIT B FORM OF CLASS M-[1][2] CERTIFICATE................................... -1
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EXHIBIT C-1 FORM OF CLASS B-[1][2] CERTIFICATE.................................... -1
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EXHIBIT C-2 FORM OF CLASS B-3I CERTIFICATE........................................ -1
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EXHIBIT D FORM OF ASSIGNMENT.................................................... -1
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EXHIBIT E FORM OF CERTIFICATE OF OFFICER........................................ -1
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EXHIBIT F FORM OF OPINION OF COUNSEL FOR THE COMPANY............................ -1
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EXHIBIT G FORM OF TRUSTEE'S ACKNOWLEDGMENT...................................... -1
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EXHIBIT H FORM OF CUSTODIAN'S ACKNOWLEDGMENT.................................... -1
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-iii-
EXHIBIT I FORM OF CERTIFICATE OF SERVICING OFFICER.......................... -1
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EXHIBIT J FORM OF CLASS C SUBSIDIARY CERTIFICATE............................ -1
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EXHIBIT K FORM OF CLASS C MASTER CERTIFICATE................................ -1
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EXHIBIT L-1 FORM OF CERTIFICATE REGARDING REPURCHASED CONTRACTS............... L-1-1
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EXHIBIT L-2 FORM OF CERTIFICATE REGARDING SUBSTITUTED CONTRACTS............... L-2-1
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EXHIBIT M FORM OF REPRESENTATION LETTER..................................... M-1
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EXHIBIT N FORM OF MONTHLY REPORT............................................ N-1
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EXHIBIT O FORM OF ADDITION NOTICE........................................... O-1
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EXHIBIT P FORM OF SUBSEQUENT TRANSFER INSTRUMENT............................ P-1
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EXHIBIT Q FORM OF OFFICER'S CERTIFICATE (SUBSEQUENT TRANSFER)............... Q-1
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-iv-
AGREEMENT, dated as of May 1, 1999, between Green Tree Financial
Corporation, a corporation organized and existing under the laws of the State of
Delaware, as Seller and Servicer (the "Company"), and U.S. Bank National
Association, a national banking association, not in its individual capacity but
solely as Trustee (the "Trustee").
WHEREAS, in the regular course of its business, the Company originates,
purchases and services manufactured housing installment sales contracts and
installment loan agreements, which contracts provide for installment payments by
or on behalf of the owner of the manufactured home and grant security interests
in the related manufactured home (or, in certain cases, mortgages or deeds of
trust on the real estate to which such manufactured home is deemed permanently
affixed);
WHEREAS, the Company and the Trustee wish to set forth the terms and
conditions pursuant to which the "Trust," as hereinafter defined, will acquire
the "Contracts," as hereinafter defined, and the Company will manage and service
the Contracts;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the Company and the Trustee agree as provided herein:
ARTICLE I
DEFINITIONS
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SECTION 1.01. General.
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For the purpose of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, the terms defined in this Article
include the plural as well as the singular, the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Section
references refer to Sections of the Agreement.
SECTION 1.02. Specific Terms.
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"Addition Notice" means, with respect to each transfer of Subsequent
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Contracts to the Trust pursuant to Section 2.03 of this Agreement, a notice,
substantially in the form of Exhibit O, which shall be given not less than five
Business Days prior to the related Subsequent Transfer Date, of the Company's
designation of Subsequent Contracts to be sold to the Trust and the aggregate
Cut-off Date Principal Balances of such Subsequent Contracts.
"Additional Contract" means a Contract identified in the List of Contracts
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delivered pursuant to Section 2.02(a) that is not an Initial Contract.
"Adjusted Amount Available" means, as to any Remittance Date, the sum of
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the Amount Available and any amount withdrawn from the Capitalized Interest
Account or Pre-Funding Account and deposited in the Certificate Account on such
Remittance Date.
"Adjusted Certificate Principal Balance" means, as of any Remittance Date,
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the sum of the Class A Principal Balance, the Class M-1 Adjusted Principal
Balance, the Class M-2 Adjusted Principal Balance, the Class B-1 Adjusted
Principal Balance and the Class B-2 Principal Balance as of that Distribution
Date.
"Advance Payment" means any payment by an Obligor in advance of the related
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Due Period in which it would be due under such Contract and which payment is not
a Principal Prepayment.
"Affiliate" of any specified Person means any other Person controlling or
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controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Pooling and Servicing Agreement, as the same may be
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amended or supplemented from time to time.
1-1
"Amount Available" means, as to any Remittance Date, an amount equal to
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(a) the sum of
(i) the amount on deposit in the Certificate Account as of the
close of business on the last day of the related Due Period,
(ii) any amounts required to be deposited in the Certificate Account
on the Business Day immediately preceding such Remittance Date
pursuant to Section 5.09, and
(iii) all collections in respect of principal on the Contracts
received after the last day of the related Due Period up to and
including the third Business Day prior to such Remittance Date
(but in no event later than the 25th day of the month prior to
such Remittance Date), minus
(b) the sum as of the close of business on the Business Day preceding such
Remittance Date of
(i) the Amount Held for Future Distribution,
(ii) amounts permitted to be withdrawn by the Trustee from the
Certificate Account pursuant to clauses (b) - (e), inclusive,
of Section 8.02, and
(iii) with respect to all Remittance Dates other than the Remittance
Date in July 1999, all collections in respect of principal on
the Contracts received on or after the first day of the related
Due Period up to and including the third Business Day prior to
the preceding Remittance Date (but in no event later than the
25th day of the prior month).
"Amount Held for Future Distribution" means, as to any Remittance Date, the
-----------------------------------
total of the amounts held in the Certificate Account on the last day of the
related Due Period on account of Advance Payments in respect of such related Due
Period (not including any portion of Advance Payments received during such
related Due Period that was distributed on the prior Remittance Date pursuant to
clause (vi) of the definition of "Formula Principal Distribution Amount").
"Applicants" has the meaning assigned in Section 9.06.
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"Appraised Value" means, with respect to any Manufactured Home, the value
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of such Manufactured Home as determined by a professional appraiser (who may be
an employee of the Company).
"Assumption Fee" means any assumption or other similar fee paid by the
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Obligor on a Contract.
1-2
"Authenticating Agent" means any authenticating agent appointed pursuant to
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Section 9.07.
"Average Sixty-Day Delinquency Ratio" means the arithmetic average of the
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Sixty-Day Delinquency Ratios for such Remittance Date and for the two
immediately preceding Remittance Dates.
"Book-Entry Certificate" means any Certificate registered in the name of
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the Depository or its nominee ownership of which is reflected on the books of
the Depository or on the books of a person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository).
"Business Day" means any day other than (a) a Saturday or a Sunday, or (b)
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another day on which banking institutions in the city in which a Person is
taking action hereunder are authorized or obligated by law, executive order or
governmental decree to be closed.
"Capitalized Interest Account" means the account established and maintained
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pursuant to Section 8.06.
"Certificates" means the Class A, Class M, Class B, Class B-3I, and Class C
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Certificates, collectively.
"Certificate Account" means the account established and maintained pursuant
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to Section 5.05.
"Certificate Owner" means the person who is the beneficial owner of a Book-
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Entry Certificate.
"Certificate Register" means the register maintained pursuant to Section
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9.02.
"Certificate Registrar" or "Registrar" means the registrar appointed
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pursuant to Section 9.02.
"Certificateholder" or "Holder" means the person in whose name a
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Certificate is registered on the Certificate Register, except that, solely for
the purposes of giving any consent, waiver, request or demand pursuant to this
Agreement, any Regular Certificate registered in the name of the Company or any
Affiliate shall be deemed not to be outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining whether the
requisite Percentage Interest necessary to effect any such consent, request,
waiver or demand has been obtained; provided, however, that, solely for the
purpose of determining whether the Trustee is entitled to rely upon any such
consent, waiver, request or demand, only Regular Certificates which the Trustee
knows to be so owned shall be so disregarded.
"Class," "Class A, " "Class M-1," "Class M-2," "Class B-1," "Class B-2,"
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"Class B-3I" or "Class C" means pertaining to each Class of Class A
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Certificates, Class M-1 Certificates, Class M-2 Certificates, Class B-1
Certificates, Class B-2 Certificates, Class B-3I Certificates and/or Class C
Certificates, as the case may be.
1-3
"Class A Certificate" means any one of the Class A-1, Class A-2, Class A-3,
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Class A-4, Class A-5, Class A-6, Class A-7, Class A-8 and Class A-9 Certificates
executed and delivered by the Trustee substantially in the form set forth in
Exhibit A and evidencing an interest designated as a "regular interest" in the
Master REMIC for purposes of the REMIC Provisions.
"Class A Distribution Amount" means, as to any Remittance Date, the lesser
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of (a) the Adjusted Amount Available for such Remittance Date, less any amounts
paid to the Servicer pursuant to Section 8.03(a)(1), and (b) the Class A Formula
Distribution Amount for such Remittance Date; provided that after the later of
the Class A-8 Cross-over Date and the Class A-9 Cross-over Date, the Class A
Distribution Amount shall be zero.
"Class A-1 Cross-over Date" means the Remittance Date on which the Class A-
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1 Principal Balance (after giving effect to the distributions of principal on
the Class A-1 Certificates on such Remittance Date) is reduced to zero.
"Class A-2 Cross-over Date" means the Remittance Date on which the Class A-
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2 Principal Balance (after giving effect to the distributions of principal on
the Class A-2 Certificates on such Remittance Date) is reduced to zero.
"Class A-3 Cross-over Date" means the Remittance Date on which the Class A-
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3 Principal Balance (after giving effect to the distributions of principal on
the Class A-3 Certificates on such Remittance Date) is reduced to zero.
"Class A-4 Cross-over Date" means the Remittance Date on which the Class A-
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4 Principal Balance (after giving effect to the distributions of principal on
the Class A-4 Certificates on such Remittance Date) is reduced to zero.
"Class A-5 Cross-over Date" means the Remittance Date on which the Class A-
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5 Principal Balance (after giving effect to the distributions of principal on
the Class A-5 Certificates on such Remittance Date) is reduced to zero.
"Class A-6 Cross-over Date" means the Remittance Date on which the Class A-
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6 Principal Balance (after giving effect to the distributions of principal on
the Class A-6 Certificates on such Remittance Date) is reduced to zero.
"Class A-7 Cross-over Date" means the Remittance Date on which the Class A-
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7 Principal Balance (after giving effect to the distributions of principal on
the Class A-7 Certificates on such Remittance Date) is reduced to zero.
"Class A-8 Cross-over Date" means the Remittance Date on which the Class A-
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8 Principal Balance (after giving effect to the distributions of principal on
the Class A-8 Certificates on such Remittance Date) is reduced to zero.
1-4
"Class A-9 Cross-over Date" means the Remittance Date on which the Class A-
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9 Principal Balance (after giving effect to the distributions of principal on
the Class A-9 Certificates on such Remittance Date) is reduced to zero.
"Class A Formula Distribution Amount" means, as to any Remittance Date, an
-----------------------------------
amount equal to the sum of (a) interest (calculated in the manner specified in
Section 1.03) at (i) the Class A-1 Remittance Rate on the Class A-1 Principal
Balance, (ii) the Class A-2 Remittance Rate on the Class A-2 Principal Balance,
(iii) the Class A-3 Remittance Rate on the Class A-3 Principal Balance, (iv) the
Class A-4 Remittance Rate on the Class A-4 Principal Balance, (v) the Class A-5
Remittance Rate on the Class A-5 Principal Balance, (vi) the Class A-6
Remittance Rate on the Class A-6 Principal Balance, (vii) the Class A-7
Remittance Rate on the Class A-7 Principal Balance, (viii) the Class A-8
Remittance Rate on the Class A-8 Principal Balance, and (ix) the Class A-9
Remittance Rate on the Class A-9 Principal Balance, in each case calculated
immediately prior to such Remittance Date, (b) the aggregate Unpaid Class A
Interest Shortfall, if any, (c) the Class A Percentage of the Formula Principal
Distribution Amount and (d) any Unpaid Class A Principal Shortfall; provided,
however, that the aggregate of all amounts distributed for all Remittance Dates
pursuant to clauses (c) and (d) shall not exceed the sum of the Original Class
A-l Principal Balance, the Original Class A-2 Principal Balance, the Original
Class A-3 Principal Balance, the Original Class A-4 Principal Balance, the
Original Class A-5 Principal Balance, the Original Class A-6 Principal Balance,
the Original Class A-7 Principal Balance, the Original Class A-8 Principal
Balance and the Original Class A-9 Principal Balance.
"Class A Interest Distribution Amount" means, as to each Class of Class A
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Certificates and any Remittance Date, the sum of the amounts specified in clause
(a)(i), (a)(ii), (a)(iii), (a)(iv), (a)(v), (a)(vi) and (a)(vii), as
appropriate, of the definition of the term "Class A Formula Distribution Amount"
and the Unpaid Class A Interest Shortfall, if any, with respect to such Class.
"Class A Interest Shortfall" means, as to any Remittance Date and with
--------------------------
respect to each Class of Class A Certificates, the amount, if any, by which the
amount distributed to Holders of such Class of Class A Certificates on such
Remittance Date pursuant to Section 8.03(a)(2) is less than the Class A Interest
Distribution Amount for such Class.
"Class A Percentage" means:
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(i) as to any Remittance Date on or prior to the later of the Class A-8
Cross-over Date and the Class A-9 Cross-Over Date, and on which the
Class M-1 Distribution Test is not satisfied, 100%,
(ii) as to any Remittance Date on which the Class M-1 Distribution Test
is satisfied but the Class M-2 Distribution Test and the Class B
Distribution Test are not satisfied, a fraction, expressed as a
percentage, the numerator of which is the Class A Principal Balance
as of such Remittance Date, and the denominator of which is the sum
of the Class A Principal Balance and the Class M-1 Principal Balance
(minus the Unpaid Class M-1 Principal Shortfall, if any) as of such
Remittance Date,
1-5
(iii) as to any Remittance Date on which both the Class M-1 Distribution
Test and the Class M-2 Distribution Test are satisfied but the Class
B Distribution Test is not satisfied, a fraction, expressed as a
percentage, the numerator of which is the Class A Principal Balance
as of such Remittance Date, and the denominator of which is the sum
of the Class A Principal Balance, the Class M-1 Principal Balance
(minus the Unpaid Class M-1 Principal Shortfall, if any), and the
Class M-2 Principal Balance (minus the Unpaid Class M-2 Principal
Shortfall, if any) as of such Remittance Date,
(iv) as to any Remittance Date on which the Class M-1 Distribution Test,
the Class M-2 Distribution Test and the Class B Distribution Test
are satisfied, a fraction, expressed as a percentage, the numerator
of which is the Class A Principal Balance as of such Remittance
Date, and the denominator of which is the Pool Scheduled Principal
Balance as of the immediately preceding Remittance Date, and
(v) as to any Remittance Date after the later of the Class A-8 Cross-
over Date and the Class A-9 Cross-over Date, 0%.
"Class A Principal Balance" means, as to any Remittance Date, the sum of
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the Class Principal Balances of the Class A Certificates.
"Class A Principal Deficiency Amount" means, as to any Remittance Date, the
-----------------------------------
amount, if any, by which the Pool Scheduled Principal Balance plus any Pre-
Funded Amount is less than the Class A Principal Balance.
"Class A Principal Shortfall" means, as to any Remittance Date, the amount,
---------------------------
if any, by which the amount distributed to Holders of Class A Certificates on
such Remittance Date pursuant to Section 8.03(a)(6)(i) and (iii) is less than
the Class A Percentage of the Formula Principal Distribution Amount for such
Remittance Date.
"Class A-1 Remittance Rate" means 4.948% per annum.
-------------------------
"Class A-2 Remittance Rate" means 5.51% per annum.
-------------------------
"Class A-3 Remittance Rate" means 5.80% per annum.
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"Class A-4 Remittance Rate" means 5.95% per annum.
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"Class A-5 Remittance Rate" means 6.16% per annum.
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"Class A-6 Remittance Rate" means 6.50% per annum.
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"Class A-7 Remittance Rate" means 6.74% per annum.
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1-6
"Class A-8 Remittance Rate" means a floating rate (determined each Due
-------------------------
Period on each Remittance Date) equal to the Weighted Average Contract Rate, but
in no event greater than 7.06% per annum.
"Class A-9 Remittance Rate" means a floating rate (determined each Due
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Period on each Remittance Date) equal to the Weighted Average Contract Rate, but
in no event greater than 6.53% per annum.
"Class A-S1 Interest" means a regular interest in the Subsidiary REMIC
-------------------
which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class A-S2 Interest" means a regular interest in the Subsidiary REMIC
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which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class A-S3 Interest" means a regular interest in the Subsidiary REMIC
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which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class A-S4 Interest" means a regular interest in the Subsidiary REMIC
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which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class A-S5 Interest" means a regular interest in the Subsidiary REMIC
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which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class A-S6 Interest" means a regular interest in the Subsidiary REMIC
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which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class A-S7 Interest" means a regular interest in the Subsidiary REMIC
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which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class A-S8 Interest" means a regular interest in the Subsidiary REMIC
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which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class A-S9 Interest" means a regular interest in the Subsidiary REMIC
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which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class B-1 Adjusted Principal Balance" means, as of any Remittance Date,
------------------------------------
the Class B-1 Principal Balance as of that Remittance Date minus the Class B-1
Liquidation Loss Amount (if any) as of the prior Remittance Date.
"Class B Certificate" means any of the Class B-1 or Class B-2 Certificates.
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1-7
"Class B-1 Certificate" means any one of the Class B-1 Certificates
---------------------
executed and delivered by the Trustee substantially in the form set forth in
Exhibit C-1 hereto and evidencing an interest designated as a "regular interest"
in the Master REMIC for purposes of the REMIC Provisions.
"Class B-2 Certificate" means any one of the Class B-2 Certificates
---------------------
executed and delivered by the Trustee substantially in the form set forth in
Exhibit C-1 hereto and evidencing an interest designated as a "regular interest"
in the Master REMIC for purposes of the REMIC Provisions.
"Class B-1 Cross-over Date" means the Remittance Date on which the Class B-
-------------------------
1 Principal Balance (after giving effect to the distributions of principal on
the Class B-1 Certificates on such Remittance Date) is reduced to zero.
"Class B-1 Distribution Amount" means, as to any Remittance Date, the
-----------------------------
lesser of (a) the Adjusted Amount Available less the sum of (i) any amounts paid
to the Servicer pursuant to Section 8.03(a)(1), (ii) the Class A Distribution
Amount, (iii) the Class M-1 Distribution Amount, (iv) the Class M-2 Distribution
Amount and (b) the Class B-1 Formula Distribution Amount for such Remittance
Date; provided that after the Class B-1 Cross-over Date the Class B-1
Distribution Amount shall be zero.
"Class B-2 Distribution Amount" means, as to any Remittance Date, the
-----------------------------
lesser of (a) the Remaining Amount Available and (b) the Class B-2 Formula
Distribution Amount for such Remittance Date.
"Class B Distribution Test" means, to be considered "satisfied" for any
-------------------------
Remittance Date, that (i) such Remittance Date occurs in or after July 2003;
(ii) the Average Sixty-Day Delinquency Ratio for such Remittance Date is less
than or equal to 4.50%; (iii) the Cumulative Realized Losses Test for such
Remittance Date is satisfied; (iv) the Current Realized Loss Ratio for such
Remittance Date is less than or equal to 2.75%; (v) the fraction, expressed as a
percentage, the numerator of which is the Class B Principal Balance as of such
Remittance Date and the denominator of which is the Pool Scheduled Principal
Balance as of the immediately preceding Remittance Date, is equal to or greater
than 12.00%; and (vi) the Class B Principal Balance as of such Remittance Date
is greater than or equal to $16,000,000.
"Class B-1 Formula Distribution Amount" means, as to any Remittance Date,
-------------------------------------
an amount equal to the sum of (a) interest (calculated in the manner specified
in Section 1.03) at the Class B-1 Remittance Rate on the Class B-1 Adjusted
Principal Balance as of such Remittance Date, (b) any Unpaid Class B-1 Interest
Shortfall, (c) the Class B Percentage of the Formula Principal Distribution
Amount, (d) any Unpaid Class B-1 Principal Shortfall, (e) any Class B-1
Liquidation Loss Interest Amount, and (f) any Unpaid Class B-1 Liquidation Loss
Interest Shortfall; provided, however, that on the Class M-2 Cross-over Date,
the balance of any amounts that would have been distributable on such date
pursuant to clauses (c) and (d) of the term "Class M-2 Formula Distribution
Amount" (assuming a sufficient Amount Available) but for the operation of the
second proviso to such term shall instead be included in clause (c) of this
definition; provided, further, that the aggregate of all
1-8
amounts distributed pursuant to clauses (c) and (d) of this definition shall not
exceed the Original Class B-1 Principal Balance.
"Class B-2 Formula Distribution Amount" means, as to any Remittance Date,
-------------------------------------
an amount equal to the sum of (a) interest (calculated in the manner specified
in Section 1.03) at the Class B-2 Remittance Rate on the Class B-2 Principal
Balance as calculated immediately prior to such Remittance Date, (b) any Unpaid
Class B-2 Interest Shortfall, (c) (i) if such Remittance Date is prior to or on
the Class B-1 Cross-over Date, zero or (ii) if such Remittance Date is after the
Class B-1 Cross-over Date, the Class B Percentage of the Formula Principal
Distribution Amount, (d) the Class B-2 Liquidation Loss Amount and (e) any
Unpaid Class B-2 Principal Shortfall; provided, however, that on the Class B-1
Cross-over Date, the balance of any amounts that would have been distributable
on such date pursuant to clauses (c) and (d) of the term "Class B-1 Formula
Distribution Amount" (assuming a sufficient Remaining Amount Available) but for
the operation of the second proviso to such term shall instead be included in
clause (c) of this definition; provided, further, that the aggregate of all
amounts distributed pursuant to clauses (c), (d) and (e) of this definition
shall not exceed the Original Class B-2 Principal Balance.
"Class B-1 Interest Deficiency Amount" means, as to the Class B-1
------------------------------------
Certificates and any Remittance Date, the difference, if any, between (i) the
sum of the amounts described in clauses (a), (b), (e) and (f) of the definition
of the term "Class B-1 Formula Distribution Amount" and (ii) the amount
available for distribution to the Class B-1 Certificateholders pursuant to
Section 8.03(a)(5)(i) and (ii) and Section 8.03(a)(9)(iii) and (iv) on such
Remittance Date.
"Class B-1 Interest Distribution Amount" means, as to any Remittance Date,
--------------------------------------
the amount specified in clause (a) of the definition of "Class B-1 Formula
Principal Distribution Amount" plus the Unpaid Class B-1 Interest Shortfall, if
any.
"Class B-1 Interest Shortfall" means, as to any Remittance Date, the
----------------------------
difference, if any, between (A) the sum of (i) the amount distributed to Holders
of the Class B-1 Certificates on such Remittance Date pursuant to Sections
8.03(a)(5)(i) and (ii), and (ii) any amount distributed to the Holders of the
Class B-1 Certificates pursuant to Section 8.03(c) on such Remittance Date, and
(B) the amounts specified in clauses (a) and (b) of the definition of the term
"Class B-1 Formula Distribution Amount" for such Remittance Date.
"Class B-2 Interest Shortfall" means, as to any Remittance Date, the
----------------------------
amount, if any, by which the amount distributed to Holders of Class B-2
Certificates on such Remittance Date pursuant to Sections 8.03(a)(10)(i) and
(ii), together with any Guarantee Payment, is less than the sum of the amounts
specified in clauses (a) and (b) of the definition of the term "Class B-2
Formula Distribution Amount."
"Class B-1 Liquidation Loss Amount" means, as of any Remittance Date, the
---------------------------------
lesser of (x) the amount, if any, by which the sum of the Class A Principal
Balance, the Class M-1 Principal Balance, the Class M-2 Principal Balance and
the Class B-1 Principal Balance for such
1-9
Remittance Date (after giving effect to all distributions of principal on the
Class A, Class M-1, Class M-2 and Class B-1 Certificates on such Remittance
Date) and (y) the Class B-1 Principal Balance (after giving effect to all
distributions of principal on the Class B-1 Certificates on such Remittance
Date).
"Class B-2 Liquidation Loss Amount" means, as to any Remittance Date, the
---------------------------------
lesser of (x) the amount, if any, by which the sum of the Class A Principal
Balance, the Class M-1 Principal Balance, the Class M-2 Principal Balance, the
Class B-1 Principal Balance and the Class B-2 Principal Balance for such
Remittance Date exceeds the sum of the Pre-Funded Amount plus the Pool Scheduled
Principal Balance for such Remittance Date (after giving effect to all
distributions of principal on the Class A, Class M-1, Class M-2 and Class B-1
Certificates on such Remittance Date, and all other distributions of principal
on the Class B-2 Certificates on such Remittance Date) and (y) the Class B-2
Principal Balance.
"Class B-1 Liquidation Loss Interest Amount" means, as to any Remittance
------------------------------------------
Date, an amount equal to interest (calculated in the manner specified in Section
1.03) at the Class B-1 Remittance Rate on the Class B-1 Liquidation Loss Amount
(if any) for the immediately preceding Remittance Date.
"Class B-1 Liquidation Loss Interest Shortfall" means, as to any Remittance
---------------------------------------------
Date, the amount, if any, by which the amount distributed to Holders of the
Class B-1 Certificates on such Remittance Date pursuant to Section
8.03(a)(9)(iii) is less than the Class B-1 Liquidation Loss Interest Amount for
such Remittance Date.
"Class B Percentage" means:
------------------
(i) as to any Remittance Date on which the Class B Distribution Test is
not satisfied, and the Class A Principal Balance, the Class M-1
Principal Balance and the Class M-2 Principal Balance have not been
reduced to zero, 0%,
(ii) as to any Remittance Date on which the Class B Distribution Test,
the Class M-2 Distribution Test and the Class M-1 Distribution Test
are satisfied, 100% minus the sum of the Class A Percentage, the
Class M-1 Percentage and the Class M-2 Percentage, and
(iii) as to any Remittance Date after the Class M-2 Cross-over Date, 100%.
"Class B Principal Balance" means, as to any Remittance Date, the sum of
-------------------------
the Class B-1 Principal Balance and the Class B-2 Principal Balance.
"Class B-1 Principal Balance" means, as to any Remittance Date, the
---------------------------
Original Class B-1 Principal Balance less all amounts previously distributed to
Holders of Class B-1 Certificates on account of principal.
1-10
"Class B-2 Principal Balance" means, as to any Remittance Date, the
---------------------------
Original Class B-2 Principal Balance less all amounts previously distributed to
Holders of Class B-2 Certificates on account of principal (including any
Guarantee Payments).
"Class B-1 Principal Shortfall" means, as to any Remittance Date, the
-----------------------------
amount, if any, by which the amount distributed to Holders of Class B-1
Certificates on such Remittance Date pursuant to Section 8.03(a)(9)(ii) is less
than the amount described in clause (c) of the definition of the term "Class B-1
Formula Distribution Amount."
"Class B-2 Principal Shortfall" means, as to any Remittance Date, the
-----------------------------
amount, if any, by which the amount distributed to Holders of Class B-2
Certificates on such Remittance Date pursuant to Section 8.03(a)(10)(iv),
together with any Guarantee Payment, is less than the sum of the amounts
described in clauses (c) and (d) of the definition of the term "Class B-2
Formula Distribution Amount."
"Class B-1 Remittance Rate" means a floating rate (determined each Due
-------------------------
Period as of each Remittance Date) equal to the Weighted Average Contract Rate,
but in no event greater than 8.37% per annum.
"Class B-2 Remittance Rate" means a floating rate (determined each Due
-------------------------
Period as of each Remittance Date) equal to the Weighted Average Contract Rate,
but in no event greater than 8.37% per annum.
"Class B-3I Certificate" means any one of the Class B-3I Certificates
----------------------
executed and delivered by the Trustee substantially in the form set forth in
Exhibit C-2 hereto and evidencing an interest designated as a "regular interest"
in the Master REMIC for purposes of the REMIC Provisions.
"Class B-3I Distribution Amount" means, as to any Remittance Date, the
------------------------------
lesser of (a) the Remaining Amount Available less the sum of (i) the Class B-2
Distribution Amount plus (ii) any amounts paid to the Servicer pursuant to
Section 8.03(a)(11), and (b) the Class B-3I Formula Distribution Amount for such
Remittance Date.
"Class B-3I Formula Distribution Amount" means, as to any Remittance Date,
--------------------------------------
an amount equal to the sum of (a) the Excess Interest for such Remittance Date,
and (b) any Unpaid Class B-3I Shortfall as of such Remittance Date.
"Class B-3I Shortfall" means, as to any Remittance Date, the amount, if
--------------------
any, by which (a) the Class B-3I Formula Distribution Amount for such Remittance
Date exceeds (b) the Class B-3I Distribution Amount for such Remittance Date.
"Class B-S1 Interest" means a regular interest in the Subsidiary REMIC
-------------------
which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
1-11
"Class B-S2 Interest" means a regular interest in the Subsidiary REMIC
-------------------
which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class C Certificate" means any one of the Class C Subsidiary Certificates
-------------------
or Class C Master Certificates.
"Class C Certificateholder" means the person in whose name a Class C
-------------------------
Certificate is registered on the Certificate Register.
"Class C Master Certificate" means a Class C Master Certificate executed
--------------------------
and delivered by the Trustee substantially in the form of Exhibit K, and
evidencing an interest designated as the "residual interest" in the Master REMIC
for purposes of the REMIC Provisions.
"Class C Master Distribution Amount" means, as to any Remittance Date, the
----------------------------------
amount, if any, distributable pursuant to Section 8.03(a)(14).
"Class C Subsidiary Certificate" means a Class C Subsidiary Certificate
------------------------------
executed and delivered by the Trustee substantially in the form of Exhibit J,
and evidencing an interest designated as the "residual interest" in the
Subsidiary REMIC for purposes of the REMIC Provisions.
"Class C Subsidiary Distribution Amount" means, as to any Remittance Date,
--------------------------------------
the amounts, if any, distributable pursuant to Section 8.03(b)(6).
"Class M-1 Adjusted Principal Balance" means, as to any Remittance Date,
------------------------------------
the Class M-1 Principal Balance as of that Remittance Date minus the Class M-1
Liquidation Loss Amount (if any) as of the prior Remittance Date.
"Class M-2 Adjusted Principal Balance" means, as to any Remittance Date,
------------------------------------
the Class M-2 Principal Balance as of that Remittance Date minus the Class M-2
Liquidation Loss Amount (if any) as of the prior Remittance Date.
"Class M Certificate" means any one of the Class M-1 or Class M-2
-------------------
Certificates.
"Class M-1 Certificate" means any one of the Class M-1 Certificates
----------------------
executed and delivered by the Trustee substantially in the form set forth in
Exhibit B hereto and evidencing an interest designated as a "regular interest"
in the Trust for the purposes of the REMIC Provisions.
"Class M-2 Certificate" means any one of the Class M-2 Certificates
----------------------
executed and delivered by the Trustee substantially in the form set forth in
Exhibit B hereto and evidencing an interest designated as a "regular interest"
in the Trust for the purposes of the REMIC Provisions.
"Class M-1 Cross-over Date" means the Remittance Date on which the Class
-------------------------
M-1 Principal Balance (after giving effect to the distributions of principal on
the Class M-1 Certificates on such Remittance Date) is reduced to zero.
1-12
"Class M-2 Cross-over Date" means the Remittance Date on which the Class M-
-------------------------
2 Principal Balance (after giving effect to the distributions of principal on
the Class M-2 Certificates on such Remittance Date) is reduced to zero.
"Class M-1 Distribution Amount" means, as to any Remittance Date, the
-----------------------------
lesser of (a) the Adjusted Amount Available less the sum of (i) any amounts paid
to the Servicer pursuant to Section 8.03(a)(1) and (ii) the Class A Distribution
Amount and (b) the Class M-1 Formula Distribution Amount for such Remittance
Date; provided that after the Class M-1 Cross-over Date the Class M-1
Distribution Amount shall be zero.
"Class M-2 Distribution Amount" means, as to any Remittance Date, the
-----------------------------
lesser of (a) the Adjusted Amount Available less the sum of (i) any amounts paid
to the Servicer pursuant to Section 8.03(a)(1), (ii) the Class A Distribution
Amount, and (iii) the Class M-1 Distribution Amount and (b) the Class M-2
Formula Distribution Amount for such Remittance Date; provided that after the
Class M-2 Cross-over Date the Class M-2 Distribution Amount shall be zero.
"Class M-1 Distribution Test" means, to be considered "satisfied" for any
---------------------------
Remittance Date, that (i) such Remittance Date occurs in or after July 2003;
(ii) the Average Sixty-Day Delinquency Ratio for such Remittance Date is less
than or equal to 4.50%; (iii) the Cumulative Realized Losses Test for such
Remittance Date is satisfied; (iv) the Current Realized Loss Ratio for such
Remittance Date is less than or equal to 2.75%; and (v) the fraction, expressed
as a percentage, the numerator of which is the sum of the Class M-1 Principal
Balance, the Class M-2 Principal Balance and the Class B Principal Balance as of
such Remittance Date and the denominator of which is the Pool Scheduled
Principal Balance as of the immediately preceding Remittance Date, is equal to
or greater than 24.375%.
"Class M-2 Distribution Test" means, to be considered "satisfied" for any
---------------------------
Remittance Date, that (i) such Remittance Date occurs in or after July 2003;
(ii) the Average Sixty-Day Delinquency Ratio for such Remittance Date is less
than or equal to 4.50%; (iii) the Cumulative Realized Losses Test for such
Remittance Date is satisfied; (iv) the Current Realized Loss Ratio for such
Remittance Date is less than or equal to 2.75%; and (v) the fraction, expressed
as a percentage, the numerator of which is the sum of the Class M-2 Principal
Balance and the Class B Principal Balance as of such Remittance Date and the
denominator of which is the Pool Scheduled Principal Balance as of the
immediately preceding Remittance Date, is equal to or greater than 16.50%.
"Class M-1 Formula Distribution Amount" means, as to any Remittance Date,
-------------------------------------
an amount equal to the sum of (a) interest (calculated in the manner specified
in Section 1.03) at the Class M-1 Remittance Rate on the Class M-1 Adjusted
Principal Balance as of such Remittance Date, (b) the aggregate Unpaid Class M-1
Interest Shortfall, if any, (c) the Class M-1 Percentage of the Formula
Principal Distribution Amount, (d) any Unpaid Class M-1 Principal Shortfall, (e)
any Class M-1 Liquidation Loss Interest Amount, and (f) any Unpaid Class M-1
Liquidation Loss Interest Shortfall; provided, however, that on the later of the
Class A-8 Cross-over Date and the Class A-9 Cross-over Date, the balance of any
amounts that would have been distributable on such date pursuant to clauses (c)
and (d) of the term "Class A Formula Distribution Amount" (assuming a
1-13
sufficient Amount Available) but for the operation of the proviso to such term
shall instead be included in clause (c) of this definition; provided, further,
that the aggregate of all amounts distributed for all Remittance Dates pursuant
to clauses (c) and (d) shall not exceed the Original Class M-1 Principal
Balance.
"Class M-2 Formula Distribution Amount" means, as to any Remittance Date,
-------------------------------------
an amount equal to the sum of (a) interest (calculated in the manner specified
in Section 1.03) at the Class M-2 Remittance Rate on the Class M-2 Adjusted
Principal Balance as of such Remittance Date, (b) the aggregate Unpaid Class M-2
Interest Shortfall, if any, (c) the Class M-2 Percentage of the Formula
Principal Distribution Amount, (d) any Unpaid Class M-2 Principal Shortfall, (e)
any Class M-2 Liquidation Loss Interest Amount, and (f) any Unpaid Class M-2
Liquidation Loss Interest Shortfall; provided, however, that on the Class M-1
Cross-Over Date, the balance of any amounts that would have been distributable
on such date pursuant to clauses (c) and (d) of the term "Class M-1 Formula
Distribution Amount" (assuming a sufficient Amount Available) but for the
operation of the proviso to such term shall instead be included in clause (c) of
this definition; provided, further, that the aggregate of all amounts
distributed for all Remittance Dates pursuant to clauses (c) and (d) shall not
exceed the Original Class M-2 Principal Balance.
"Class M-1 Interest Deficiency Amount" means, as to the Class M-1
------------------------------------
Certificates and any Remittance Date, the difference, if any, between (i) the
sum of the amounts described in clauses (a), (b), (e) and (f) of the definition
of the term "Class M-1 Formula Distribution Amount" and (ii) the amount
available for distribution to the Class M-1 Certificateholders pursuant to
Section 8.03(a)(3)(i) and (ii) and Section 8.03(a)(7)(iii) and (iv) on such
Remittance Date.
"Class M-2 Interest Deficiency Amount" means, as to the Class M-2
------------------------------------
Certificates and any Remittance Date, the difference, if any, between (i) the
sum of the amounts described in clauses (a), (b), (e) and (f) of the definition
of the term "Class M-2 Formula Distribution Amount" and (ii) the amount
available for distribution to the Class M-2 Certificateholders pursuant to
Section 8.03(a)(4)(i) and (ii) and Section 8.03(a)(8)(iii) and (iv) on such
Remittance Date.
"Class M-1 Interest Distribution Amount" means, as to any Remittance Date,
--------------------------------------
the amount specified in clause (a) of the definition of the term "Class M-1
Formula Distribution Amount" plus the Unpaid Class M-1 Interest Shortfall, if
any.
"Class M-2 Interest Distribution Amount" means, as to any Remittance Date,
--------------------------------------
the amount specified in clause (a) of the definition of the term "Class M-2
Formula Distribution Amount" plus the Unpaid Class M-2 Interest Shortfall, if
any.
"Class M-1 Interest Shortfall" means, as to any Remittance Date, the
----------------------------
difference, if any, between (A) the sum of (i) the amount distributed to Holders
of the Class M-1 Certificates on such Remittance Date pursuant to Section
8.03(a)(3)(i) and (ii), and (ii) any amount distributed to the Holders of the
Class M-1 Certificates pursuant to Section 8.03(c) on such Remittance Date, and
(B) the Class M-1 Interest Distribution Amount for such Remittance Date.
1-14
"Class M-2 Interest Shortfall" means, as to any Remittance Date, the
----------------------------
difference, if any, between (A) the sum of (i) the amount distributed to Holders
of the Class M-2 Certificates on such Remittance Date pursuant to Section
8.03(a)(4)(i) and (ii), and (ii) any amount distributed to the Holders of the
Class M-2 Certificates pursuant to Section 8.03(c) on such Remittance Date, and
(B) the Class M-2 Interest Distribution Amount for such Remittance Date.
"Class M-1 Liquidation Loss Amount" means, as to any Remittance Date, the
---------------------------------
lesser of (x) the amount, if any, by which the sum of the Class A Principal
Balance and the Class M-1 Principal Balance for such Remittance Date exceeds the
sum of the Pre-Funded Amount plus the Pool Scheduled Principal Balance for such
Remittance Date (after giving effect to all distributions of principal on the
Class A and Class M-1 Certificates on such Remittance Date) and (y) the Class M-
1 Principal Balance (after giving effect to all distributions of principal on
the Class M-1 Certificates on such Remittance Date).
"Class M-2 Liquidation Loss Amount" means, as to any Remittance Date, the
---------------------------------
lesser of (x) the amount, if any, by which the sum of the Class A Principal
Balance, the Class M-1 Principal Balance and the Class M-2 Principal Balance for
such Remittance Date exceeds the sum of the Pre-Funded Amount plus the Pool
Scheduled Principal Balance for such Remittance Date (after giving effect to all
distributions of principal on the Class A, Class M-1 and Class M-2 Certificates
on such Remittance Date) and (y) the Class M-2 Principal Balance (after giving
effect to all distributions of principal on the Class M-2 Certificates on such
Remittance Date).
"Class M-1 Liquidation Loss Interest Amount" means, as to any Remittance
------------------------------------------
Date, an amount equal to interest (calculated in the manner specified in Section
1.03) at the Class M-1 Remittance Rate on the Class M-1 Liquidation Loss Amount
(if any) for the immediately preceding Remittance Date.
"Class M-2 Liquidation Loss Interest Amount" means, as to any Remittance
------------------------------------------
Date, an amount equal to interest (calculated in the manner specified in Section
1.03) at the Class M-2 Remittance Rate on the Class M-2 Liquidation Loss Amount
(if any) for the immediately preceding Remittance Date.
"Class M-1 Liquidation Loss Interest Shortfall" means, as to any Remittance
---------------------------------------------
Date, the amount, if any, by which the amount distributed to Holders of the
Class M-1 Certificates on such Remittance Date pursuant to Section
8.03(a)(7)(iii) is less than the Class M-1 Liquidation Loss Interest Amount for
such Remittance Date.
"Class M-2 Liquidation Loss Interest Shortfall" means, as to any Remittance
---------------------------------------------
Date, the amount, if any, by which the amount distributed to Holders of the
Class M-2 Certificates on such Remittance Date pursuant to Section
8.03(a)(8)(iii) is less than the Class M-2 Liquidation Loss Interest Amount for
such Remittance Date.
1-15
"Class M-1 Percentage" means:
--------------------
(i) as to any Remittance Date prior to the later of the Class A-8 Cross-
over Date and the Class A-9 Cross-over Date and on which the Class
M-1 Distribution Test is not satisfied, 0%,
(ii) as to any Remittance Date on which the Class M-1 Distribution Test
is satisfied but the Class M-2 Distribution Test is not satisfied,
100% minus the Class A Percentage,
(iii) as to any Remittance Date on which both the Class M-1 Distribution
Test and the Class M-2 Distribution Test are satisfied but the Class
B Distribution Test is not satisfied, a fraction, expressed as a
percentage, the numerator of which is the Class M-1 Principal
Balance (minus the Unpaid Class M-1 Principal Shortfall, if any) as
of such Remittance Date, and the denominator of which is the sum of
the Class A Principal Balance, the Class M-1 Principal Balance
(minus the Unpaid Class M-1 Principal Shortfall, if any) and the
Class M-2 Principal Balance (minus the Unpaid Class M-2 Principal
Shortfall, if any) as of the immediately preceding Remittance Date,
(iv) as to any Remittance Date on which the Class M-1 Distribution Test,
the Class M-2 Distribution Test and the Class B Distribution Test
are satisfied, a fraction, expressed as a percentage, the numerator
of which is the Class M-1 Principal Balance (minus the Unpaid Class
M-1 Principal Shortfall, if any) as of such Remittance Date, and the
denominator of which is the Pool Scheduled Principal Balance as of
the immediately preceding Remittance Date, and
(v) as to any Remittance Date after the later of the Class A-8 Cross-
over Date and the Class A-9 Cross-over Date and on which the Class
M-2 Distribution Test and the Class B Distribution Test are not
satisfied, 100%.
"Class M-2 Percentage" means:
--------------------
(i) as to any Remittance Date prior to the Class M-1 Cross-over Date and
on which the Class M-2 Distribution Test is not satisfied, 0%,
(ii) as to any Remittance Date on which the Class M-2 Distribution Test
is satisfied but the Class B Distribution Test is not satisfied,
100% minus the sum of the Class A Percentage and the Class M-1
Percentage,
(iii) as to any Remittance Date on which both the Class M-2 Distribution
Test and the Class B Distribution Test are satisfied, a fraction,
expressed as a percentage, the numerator of which is the Class M-2
Principal Balance (minus the Unpaid Class M-2 Principal Shortfall,
if any) as of such Remittance Date, and the denominator of
1-16
which is the Pool Scheduled Principal Balance as of the immediately
preceding Remittance Date, and
(iv) as to any Remittance Date after the Class M-2 Cross-over Date and on
which the Class B Distribution Test is not satisfied, 100%.
"Class M-1 Principal Balance" means, as to any Remittance Date, the
---------------------------
Original Class M-1 Principal Balance less all amounts previously distributed to
Holders of Class M-1 Certificates on account of principal.
"Class M-2 Principal Balance" means, as to any Remittance Date, the
---------------------------
Original Class M-2 Principal Balance less all amounts previously distributed to
Holders of Class M-2 Certificates on account of principal.
"Class M-1 Principal Shortfall" means, as to any Remittance Date, the
-----------------------------
amount, if any, by which the amount distributed to Holders of Class M-1
Certificates on such Remittance Date pursuant to Sections 8.03(a)(7)(ii) is less
than the Class M-1 Percentage of the Formula Principal Distribution Amount for
such Remittance Date.
"Class M-2 Principal Shortfall" means, as to any Remittance Date, the
-----------------------------
amount, if any, by which the amount distributed to Holders of Class M-2
Certificates on such Remittance Date pursuant to Sections 8.03(a)(8)(ii) is less
than the Class M-2 Percentage of the Formula Principal Distribution Amount for
such Remittance Date.
"Class M-1 Remittance Rate" means a floating rate (determined each Due
-------------------------
Period as of each Remittance Date) equal to the Weighted Average Contract Rate,
but in no event greater than 6.96% per annum.
"Class M-2 Remittance Rate" means a floating rate (determined each Due
-------------------------
Period as of each Remittance Date) equal to the Weighted Average Contract Rate,
but in no event greater than 7.20% per annum.
"Class M-S1 Interest" means a regular interest in the Subsidiary REMIC
-------------------
which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class M-S2 Interest" means a regular interest in the Subsidiary REMIC
-------------------
which is held as an asset of the Master REMIC and is entitled to monthly
distributions as provided in Section 8.03(b).
"Class Principal Balance" means, as to any Remittance Date and each Class
-----------------------
of Certificates, the Original Principal Balance of such Class less all amounts
previously distributed to Holders of such Class of Certificates on account of
principal.
"Closing Date" means May 27, 1999.
------------
1-17
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Collateral Security" means, with respect to any Contract, (i) the security
-------------------
interests granted by or on behalf of the related Obligor with respect thereto,
including a first priority perfected security interest in the related
Manufactured Home, (ii) all other security interests or liens and property
subject thereto from time to time purporting to secure payment of such Contract,
whether pursuant to the agreement giving rise to such Contract or otherwise,
together with all financing statements signed by the Obligor describing any
collateral securing such Contract, (iii) all guarantees, insurance and other
agreements or arrangements of whatever character from time to time supporting or
securing payment of such Contract whether pursuant to the agreement giving rise
to such Contract or otherwise, and (iv) all records in respect of such Contract.
"Computer Tape" means the computer tape generated by the Company which
-------------
provides information relating to the Contracts and which was used by the Company
in selecting the Contracts, and includes the master file and the history file.
"Contracts" means the manufactured housing installment sales contracts and
---------
installment loan agreements, including any Land-and-Home Contracts, described in
the List of Contracts and constituting part of the corpus of the Trust, which
Contracts are to be assigned and conveyed by the Company to the Trust, and
includes, without limitation, all related security interests and any and all
rights to receive payments which are due pursuant thereto on or after the
applicable Cut-off Date, but excluding any rights to receive payments which are
due pursuant thereto prior to the applicable Cut-off Date.
"Contract File" means, as to each Contract, other than a Land-and-Home
-------------
Contract, (a) the original copy of the Contract, (b) either (i) the original
title document for the related Manufactured Home or a duplicate certified by the
appropriate governmental authority which issued the original thereof or the
application for such title document or (ii) if the laws of the jurisdiction in
which the related Manufactured Home is located do not provide for the issuance
of title documents for manufactured housing, other evidence of ownership of the
related Manufactured Home which is customarily relied upon in such jurisdiction
as evidence of title to a manufactured housing unit, (c) evidence of one or more
of the following types of perfection of the security interest in the related
Manufactured Home granted by such Contract, as appropriate: (i) notation of
such security interest on the title document, (ii) a financing statement meeting
the requirements of the UCC, with evidence of recording indicated thereon, or
(iii) such other evidence of perfection of a security interest in a manufactured
housing unit as is customarily relied upon in the jurisdiction in which the
related Manufactured Home is located, (d) the assignment of the Contract from
the originator (if other than the Company) to the Company, (e) evidence of any
other Collateral Security, including with respect to a Land-in-Lieu Contract,
the mortgage or deed of trust, and (f) any extension, modification or waiver
agreement(s).
"Contract Rate" means, with respect to any particular Contract, the rate of
-------------
interest specified in that Contract and computed on a precomputed basis with an
actuarial rebate of unearned interest upon prepayment, provided that the rebate
upon prepayment of Contracts originated in California
1-18
or Oklahoma may be computed on the simple interest method if so required by
applicable law or regulations.
"Corporate Trust Office" means the office of the Trustee at which at any
----------------------
particular time its corporate trust business shall be principally administered,
which office at the date of the execution of this Agreement is located at the
address set forth in Section 12.08.
"Corresponding Certificate Class" means, with respect to each Class of
-------------------------------
Uncertificated Subsidiary Interests, as follows:
Uncertificated Subsidiary Interest Corresponding Certificate Class
---------------------------------- -------------------------------
Class A-S1 Class A-1
Class A-S2 Class A-2
Class A-S3 Class A-3
Class A-S4 Class A-4
Class A-S5 Class A-5
Class A-S6 Class A-6
Class A-S7 Class A-7
Class A-S8 Class A-8
Class A-S9 Class A-9
Class M-S1 Class M-1
Class M-S2 Class M-2
Class B-S1 Class B-1
Class B-S2 Class B-2
"Counsel for the Company" means ▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A., or other legal
-----------------------
counsel for the Company.
"Cumulative Realized Losses" means, as to any Remittance Date, the sum of
--------------------------
the Realized Losses for that Remittance Date and each preceding Remittance Date
since the Cut-off Date.
"Cumulative Realized Losses Test" means, to be considered "satisfied" for
-------------------------------
any Remittance Date:
(i) if such Remittance Date occurs between July 1, 2003 and June 30,
2004 (inclusive), that the Cumulative Realized Losses as of such
Remittance Date are less than or equal to 5.5% of the Cut-off Date
Pool Principal Balance;
(ii) if such Remittance Date occurs between July 1, 2004 and June 30,
2005 (inclusive), that the Cumulative Realized Losses as of such
Remittance Date are less than or equal to 7.0% of the Cut-off Date
Pool Principal Balance;
1-19
(iii) if such Remittance Date occurs between July 1, 2005 and June 30,
2006 (inclusive), that the Cumulative Realized Losses as of such
Remittance Date are less than or equal to 9.0% of the Cut-off Date
Pool Principal Balance; and
(iv) if such Remittance Date occurs on or after July 1, 2006, that the
Cumulative Realized Losses as of such Remittance Date are less than
or equal to 10.5% of the Cut-off Date Pool Principal Balance.
"Current Realized Loss Ratio" means, as to any Remittance Date, a fraction,
---------------------------
expressed as a percentage, the numerator of which is the aggregate Realized
Losses for such Remittance Date and each of the two immediately preceding
Remittance Dates, multiplied by four, and the denominator of which is the
arithmetic average of the Pool Scheduled Principal Balance as of the third
preceding Remittance Date and the Pool Scheduled Principal Balance as of such
Remittance Date.
"Custodian" means at any time the Trustee or a financial institution
---------
organized under the laws of the United States or any State, which is subject to
supervision and examination by Federal or State authorities and which is not the
Company or an Affiliate of the Company, that is acting at such time as Custodian
of the Land-and-Home Contract Files pursuant to Section 4.01.
"Cut-off Date" means with respect to a portion of the Initial Contracts,
------------
May 1, 1999 (or the date of origination of the Contract, if later), and for the
remainder of the Initial Contracts, May 15, 1999 (or the date of origination of
the Contract, if later), and for the Additional Contracts, June 1, 1999.
"Cut-off Date Pool Principal Balance" means the aggregate of the Cut-off
-----------------------------------
Date Principal Balances of the Contracts. With respect to any Staged-Funding
Contract, the Cut-off Date Principal Balance means the principal amount stated
on such Contract.
"Cut-off Date Principal Balance" means, as to any Contract, the unpaid
------------------------------
principal balance thereof at the Cut-off Date, or Subsequent Cut-off Date if a
Subsequent Contract, after giving effect to all installments of principal due
prior thereto.
"Defaulted Contract" means a Contract with respect to which the Servicer
------------------
commenced repossession or foreclosure procedures, made a sale of such Contract
to a third party for repossession, foreclosure or other enforcement, or as to
which there was a payment delinquent 180 or more days (excluding any Contract
deemed delinquent solely because the Obligor's required monthly payment was
reduced as a result of bankruptcy or similar proceedings).
"Depository" means the initial Depository, The Depository Trust Company,
----------
the nominee of which is CEDE & CO., as the registered Holder of fourteen
Certificates evidencing $800,000,000 in initial aggregate principal balance of
the Class A Certificates, Class M Certificates, and Class B Certificates, and
any permitted successor depository. The Depository shall at all times be a
"clearing corporation" as defined in the Uniform Commercial Code of the State of
New York.
1-20
"Depository Participant" means a broker, dealer, bank or other financial
----------------------
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date" means the third Business Day preceding each Remittance
------------------
Date during the term of this Agreement.
"Disqualified Organization" has the meaning assigned in Section 9.02(b)(3).
-------------------------
"Due Date" means, as to any Contract, the date of the month on which the
--------
scheduled monthly payment for such Contract is due.
"Due Period" means with respect to all Remittance Dates, other than the
----------
Remittance Date in July 1999, the period from and including the 16th day of the
second month preceding such Remittance Date, to and including the 15th day of
the month immediately preceding such Remittance Date and, with respect to the
July 1999 Remittance Date, the period from and including May 1, 1999 to and
including June 15, 1999.
"Electronic Ledger" means the electronic master record of installment sale
-----------------
contracts of the Company.
"Eligible Account" means, at any time, an account which is any of the
----------------
following: (i) an account maintained with an Eligible Institution; (ii) a trust
account (which shall be a "segregated trust account") maintained with the
corporate trust department of a federal or state chartered depository
institution or trust company with trust powers and acting in its fiduciary
capacity for the benefit of the Trustee hereunder, which depository institution
or trust company shall have capital and surplus (or, if such depository
institution or trust company is a subsidiary of a bank holding company system,
the bank holding company shall have capital and surplus) of not less than
$50,000,000 and the securities of such depository institution or trust company
(or, if such depository institution or trust company is a subsidiary of a bank
holding company system and such depository institution's or trust company's
securities are not rated, the securities of the bank holding company) shall have
a credit rating from each of ▇▇▇▇▇'▇ (if rated by ▇▇▇▇▇'▇), Standard & Poor's
(if rated by Standard & Poor's) and Fitch (if rated by Fitch) in one of its
generic credit rating categories which signifies investment grade; or (iii) an
account that will not cause the Rating Agencies to downgrade or withdraw their
then-current ratings assigned to the Certificates, as confirmed in writing by
the Rating Agencies.
"Eligible Institution" means any depository institution (which may be the
--------------------
Trustee or an Affiliate of the Trustee) organized under the laws of the United
States or any State, the deposits of which are insured to the full extent
permitted by law by the Bank Insurance Fund (currently administered by the
Federal Deposit Insurance Corporation), which is subject to supervision and
examination by federal or state authorities and whose short-term deposits have
been rated P-1 by ▇▇▇▇▇'▇ (if rated by ▇▇▇▇▇'▇), A-1+ by Standard & Poor's (if
rated by Standard & Poor's) and F-1 by Fitch (if rated by Fitch), or whose
unsecured long-term debt has been rated in one of the two
1-21
highest rating categories by ▇▇▇▇▇'▇, Standard & Poor's (not lower than AA) and
Fitch (if rated by Fitch) in the case of unsecured long-term debt.
"Eligible Investments" has the meaning assigned in Section 5.05(b).
--------------------
"Eligible Servicer" means the Company or any Person qualified to act as
-----------------
Servicer of the Contracts under applicable federal and state laws and
regulations, which Person services not less than an aggregate of $100,000,000 in
outstanding principal amount of manufactured housing conditional sales contracts
and installment loan agreements and, so long as any FHA/VA Contract is
outstanding, which Person is qualified under FHA/VA Regulations to act as a
servicer of all such FHA/VA Contracts.
"Eligible Substitute Contract" means, as to any Replaced Contract for which
----------------------------
such Eligible Substitute Contract is being substituted pursuant to Section
3.05(b), a Contract that (a) as of the date of its substitution, satisfies all
of the representations and warranties (which, except when expressly stated to be
as of origination, shall be deemed to be determined as of the date of its
substitution rather than as of the Cut-off Date or the Closing Date) in Section
3.02 and does not cause any of the representations and warranties in Section
3.03, after giving effect to such substitution, to be incorrect, (b) after
giving effect to the scheduled payment due in the month of such substitution,
has a Scheduled Principal Balance that is not greater than the Scheduled
Principal Balance of such Replaced Contract, (c) has a Contract Rate that is at
least equal to the Contract Rate of such Replaced Contract, (d) has a remaining
term to scheduled maturity that is not greater than the remaining term to
scheduled maturity of the Replaced Contract, and (e) is a Land-and-Home Contract
if the Replaced Contract is a Land-and-Home Contract and is otherwise secured by
a Manufactured Home that is similar in type and value to the collateral serving
the Replaced Contract. If more than one Contract is being substituted pursuant
to Section 3.05(b) for more than one Replaced Contract on a particular date,
then the conditions specified above shall be applied to the Contracts being
substituted, in the aggregate, and the Replaced Contracts, in the aggregate.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended.
"Errors and Omissions Protection Policy" means the employee errors and
--------------------------------------
omissions policy maintained by the Servicer or any similar replacement policy
covering errors and omissions by the Servicer's employees, and meeting the
requirements of Section 5.09, all as such policy relates to Contracts comprising
a portion of the corpus of the Trust.
"Event of Termination" has the meaning assigned in Section 7.01.
--------------------
"Excess Interest" means, as to any Remittance Date, the sum of (a) interest
---------------
accrued on the Class A-S1 Subsidiary Interest Principal Balance as of such
Remittance Date at a rate per annum equal to the difference between the Weighted
Average Contract Rate as of such Remittance Date and the Class A-1 Remittance
Rate, (b) interest accrued on the Class A-S2 Subsidiary Interest Principal
Balance at a rate per annum equal to the difference between the Weighted Average
Contract Rate as of such Remittance Date and the Class A-2 Remittance Rate, (c)
interest accrued on the Class
1-22
A-S3 Subsidiary Interest Principal Balance at a rate per annum equal to the
difference between the Weighted Average Contract Rate as of such Remittance Date
and the Class A-3 Remittance Rate, (d) interest accrued on the Class A-S4
Subsidiary Interest Principal Balance at a rate per annum equal to the
difference between the Weighted Average Contract Rate as of such Remittance Date
and the Class A-4 Remittance Rate, (e) interest accrued on the Class A-S5
Subsidiary Interest Principal Balance at a rate per annum equal to the
difference between the Weighted Average Contract Rate as of such Remittance Date
and the Class A-5 Remittance Rate, (f) interest accrued on the Class A-S6
Subsidiary Interest Principal Balance at a rate per annum equal to the
difference between the Weighted Average Contract Rate as of such Remittance Date
and the Class A-6 Remittance Rate, (g) interest accrued on the Class A-S7
Subsidiary Interest Principal Balance at a rate per annum equal to the
difference between the Weighted Average Contract Rate as of such Remittance Date
and the Class A-7 Remittance Rate, (h) interest accrued on the Class A-S8
Subsidiary Interest Principal Balance at a rate per annum equal to the
difference between the Weighted Average Contract Rate as of such Remittance Date
and Class A-8 Remittance Rate, (i) interest accrued on the Class A-S9 Subsidiary
Interest Principal Balance at a rate per annum equal to the difference between
the Weighted Average Contract Rate as of such Remittance Date and the Class A-9
Remittance Rate, (j) interest accrued on the Class M-S1 Subsidiary Interest
Principal Balance at a rate per annum equal to the difference between the
Weighted Average Contract Rate as of such Remittance Date and the Class M-1
Remittance Rate, (k) interest accrued on the Class M-S2 Subsidiary Interest
Principal Balance at a rate per annum equal to the difference between the
Weighted Average Contract Rate as of such Remittance Date and the Class M-2
Remittance Rate, (l) interest accrued on the Class B-S1 Subsidiary Interest
Principal Balance at a rate per annum equal to the difference between the
Weighted Average Contract Rate as of such Remittance Date and the Class B-1
Remittance Rate, and (m) interest accrued on the Class B-S2 Subsidiary Interest
Principal Balance at a rate per annum equal to the difference between the
Weighted Average Contract Rate as of such Remittance Date and the Class B-2
Remittance Rate.
"FHA/VA Contract" means a Contract that, at its origination, was insured by
---------------
the Federal Housing Administration or partially guaranteed by the Veterans
Administration.
"FHA/VA Regulations" means, as to any FHA/VA Contract, the contractual
------------------
agreements and regulations of the Federal Housing Administration or the Veterans
Administration, as the case may be, providing or governing the terms of the
insurance for such Contract by the Federal Housing Administration or the partial
guarantee for such Contract by the Veterans Administration, as the case may be.
"Fidelity Bond" means the fidelity bond maintained by the Servicer or any
-------------
similar replacement bond, meeting the requirements of Section 5.09, as such bond
relates to Contracts comprising a portion of the corpus of the Trust.
"Final Remittance Date" means the Remittance Date on which the final
---------------------
distribution in respect of the Certificates will be made pursuant to Section
12.03.
"Fitch" means Fitch IBCA, Inc., or any successor thereto; provided that if
-----
Fitch does not then have a rating outstanding on any of the Class A, Class M-1,
Class M-2 or Class B Certificates, then
1-23
references herein to "Fitch" shall be deemed to refer to the NRSRO then rating
any Class of the Certificates (or, if more than one such NRSRO is then rating
any Class of the Certificates, to such NRSRO as may be designated by the
Servicer), and references herein to ratings by or requirements of Fitch shall be
deemed to have the equivalent meanings with respect to ratings by or
requirements of such NRSRO.
"Formula Principal Distribution Amount" means, as of any Remittance Date,
-------------------------------------
the sum of:
(i) all scheduled payments of principal due on each outstanding Contract
during the related Due Period as specified in the amortization
schedule at the time applicable thereto (after adjustments for
previous Partial Principal Prepayments and any adjustment to such
amortization schedule by reason of any bankruptcy of an Obligor or
similar proceeding or any moratorium or similar waiver or grace
period, or by reason of any other waiver modification or extension
granted by the Servicer in accordance with Section 5.06); plus
(ii) all Partial Principal Prepayments applied and all Principal
Prepayments in Full received during the related Due Period; plus
(iii) the aggregate Scheduled Principal Balance of all Contracts that
became Liquidated Contracts during the related Due Period plus the
amount of any reduction in principal balance of any Contract during
the related Due Period pursuant to bankruptcy proceedings involving
the related Obligor; plus
(iv) the aggregate Scheduled Principal Balance of all Contracts
repurchased during the month preceding the related Due Period
pursuant to Section 3.05; plus
(v) with respect to the Remittance Date in August 1999, the Unfunded
Contract Shortfall, if any; plus
(vi) without duplication of the foregoing, all collections in respect of
principal on the Contracts received after the last day of the
related Due Period up to and including the third Business Day prior
to such Remittance Date (but in no event later than the 25th day of
the month in which such Remittance Date occurs); minus
(vii) with respect to all Remittance Dates other than the Remittance Date
in July 1999, the amount, if any, included in the Formula Principal
Distribution Amount for the preceding Remittance Date by virtue of
clause (vi) of the definition of Formula Principal Distribution
Amount; plus
(viii) with respect to the Remittance Date in June 2000, the amount, if
any, by which the Class A-1 Principal Balance as of such Remittance
Date exceeds the sum of the amounts described above in clauses (i)
through (vii); minus
1-24
(ix) with respect to the Remittance Date in July 2000, the amount, if any,
distributed in respect of principal on the Class A-1 Certificates on
the Remittance Date in June 2000 pursuant to clause (viii) above; plus
(x) on the Post-Funding Remittance Date, the Pre-Funded Amount; minus
(xi) any amount paid by Green Tree on the previous Remittance Date pursuant
to Section 8.04 in respect of a Class B-2 Liquidation Loss Amount.
"Funding Termination Date" means the Business Day immediately preceding the
------------------------
Remittance Date occurring in the calendar month that is the third calendar month
following the calendar month of the Closing Date, or July 30, 1999.
"Guarantee Payment" means, the amount, if any, by which (A) the Class B-2
-----------------
Formula Distribution Amount for such Remittance Date exceeds (B) the Remaining
Amount Available.
"Hazard Insurance Policy" means, with respect to each Contract, the policy
-----------------------
of fire and extended coverage insurance (and federal flood insurance, if the
Manufactured Home is secured by an FHA/VA Contract and such Manufactured Home is
located in a federally designated special flood area) required to be maintained
for the related Manufactured Home, as provided in Section 5.09, and which, as
provided in said Section 5.09, may be a blanket mortgage impairment policy
maintained by the Servicer in accordance with the terms and conditions of said
Section 5.09.
"Independent" means, when used with respect to any specified Person, ▇▇▇▇▇▇
-----------
and ▇▇▇▇▇▇, P.A. or any Person who (i) is in fact independent of the Company and
the Servicer, (ii) does not have any direct financial interest or any material
indirect financial interest in the Company or the Servicer or in an Affiliate of
either and (iii) is not connected with the Company or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions. Whenever it is provided herein that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such opinion or certificate shall state that the signatory has read this
definition and is Independent within the meaning set forth herein.
"Initial Contracts" means certain Contracts identified in the List of
-----------------
Contracts delivered pursuant to Section 2.02(a), all of which were originated on
or before April 26, 1999, and which have an aggregate principal balance as of
the Cut-off Date of approximately $647,819,239.32.
"Insurance Proceeds" means proceeds paid by any insurer pursuant to any
------------------
insurance policy or contract or any FHA/VA Contract.
"Land-and-Home Contract" means a Contract that is secured by a Mortgage on
----------------------
real estate on which the related Manufactured Home is situated, and which
Manufactured Home is considered or classified as part of the real estate under
the laws of the jurisdiction in which it is located.
1-25
"Land-and-Home Contract File" means, as to each Land-and-Home Contract, (a)
---------------------------
the original copy of the Land-and-Home Contract; (b) the original related
Mortgage with evidence of recording thereon (or, if the original Mortgage has
not yet been returned by the applicable recording office, a copy thereof,
certified by such recording office, which will be replaced by the original
Mortgage when it is so returned) and any title document for the related
Manufactured Home; (c) the assignment of the Land-and-Home Contract and the
related Mortgage from the originator (if other than the Company) to the Company;
(d) if such Land-and-Home Contract was originated by the Company, an endorsement
of such Land-and-Home Contract by the Company; (e) an assignment of the related
Mortgage to the Trustee or in blank; and (f) any extension, modification or
waiver agreement(s).
"Land-in-Lieu Contract" means a Contract that is secured by (i) a security
---------------------
interest in a Manufactured Home and (ii) a mortgage or deed of trust on real
estate on which such Manufactured Home is situated, but such Manufactured Home
is not considered or classified as part of the real estate under the laws of the
jurisdiction in which it is located.
"Limited Guarantee" means the obligation of the Company to make Guarantee
-----------------
Payments pursuant to Section 8.04.
"Liquidated Contract" means any defaulted Contract as to which the Servicer
-------------------
has determined that all amounts which it expects to recover from or on account
of such Contract have been recovered; provided that any defaulted Contract in
respect of which the related Manufactured Home and, in the case of Land-and-Home
Contracts, Mortgaged Property, have been realized upon and disposed of and the
proceeds of such disposition have been received shall be deemed to be a
Liquidated Contract.
"Liquidation Expenses" means out-of-pocket expenses (exclusive of any
--------------------
overhead expenses) which are incurred by the Servicer in connection with the
liquidation of any defaulted Contract, on or prior to the date on which the
related Manufactured Home and, in the case of Land-and-Home Contracts, Mortgaged
Property, are disposed of, including, without limitation, legal fees and
expenses, and any related and unreimbursed expenditures for property taxes,
property preservation or restoration of the property to marketable condition.
"Liquidation Proceeds" means cash (including Insurance Proceeds) received
--------------------
in connection with the liquidation of defaulted Contracts, whether through
repossession, foreclosure sale or otherwise, including any rental income
realized from the repossessed Manufactured Home.
"List of Contracts" means the lists identifying each Contract constituting
-----------------
part of the corpus of the Trust, and which lists are either delivered pursuant
to Section 2.02(a) of this Agreement or attached to a Subsequent Transfer
Instrument as Exhibit A, as such lists may be amended from time to time pursuant
to Section 3.05(b) to add Eligible Substitute Contracts and delete Replaced
Contracts. Each List of Contracts shall set forth as to each Contract identified
on it (i) the Cut-off Date Principal Balance, (ii) the amount of monthly
payments due from the Obligor, (iii) the Contract Rate and (iv) the maturity
date.
1-26
"Loan-to-Value Ratio" means, (a) with respect to any Contract other than a
-------------------
Land-in-Lieu Contract, one minus a fraction, the numerator of which is the total
amount down (which may include both cash (plus, in certain cases, fees and
insurance premiums financed, but not buy down points) and, for certain
Contracts, the amount of any equity in land on which a lien has been granted)
and the denominator of which is the sum of the original principal amount and
such amount down, and (b) with respect to Land-in-Lieu Contracts, one minus a
fraction, the numerator of which is the appraised value of land and the
denominator of which is the original principal amount.
"Manufactured Home" means a unit of manufactured housing, including all
-----------------
accessions thereto, securing the indebtedness of the Obligor under the related
Contract.
"Master Certificates" means all of the Certificates other than the Class C
-------------------
Subsidiary Certificates.
"Master REMIC" means one of the two separate REMICs comprising the corpus
------------
of the Trust created by this Agreement, the assets of which shall consist of the
Uncertificated Subsidiary Interests and the Limited Guarantee.
"Maturity Date" means, as to any Certificate, other than a Class C
-------------
Certificate, and as to any Uncertificated Subsidiary Interest, the latest
possible maturity date for purposes of complying with the REMIC Provisions
governing "regular interests." The Maturity Dates for such Certificates and
Uncertificated Subsidiary Interests are set forth in Sections 2.05 (b) and (c).
"Monthly Report" has the meaning assigned in Section 6.01.
--------------
"Monthly Servicing Fee" means, as of any Remittance Date, one-twelfth of
---------------------
the product of 0.50% and the Pool Scheduled Principal Balance for the
immediately preceding Remittance Date (or, with respect to the first Remittance
Date, the Cut-off Date Pool Principal Balance as of the Closing Date).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto.
-------
"Mortgage" means the mortgage, deed of trust, security deed or similar
--------
evidence of lien, creating a first lien on an estate in fee simple in the real
property securing a Land-and-Home Contract.
"Mortgaged Property" means the property subject to the lien of a Mortgage.
------------------
"Net Liquidation Loss" means, as to a Liquidated Contract, the amount, if
--------------------
any, by which (a) the outstanding principal balance of such Liquidated Contract
plus accrued and unpaid interest thereon to the date on which such Liquidated
Contract became a Liquidated Contract exceeds (b) the Net Liquidation Proceeds
for such Liquidated Contract.
1-27
"Net Liquidation Proceeds" means, as to a Liquidated Contract, all
------------------------
Liquidation Proceeds received on or prior to the last day of the month in which
such Contract became a Liquidated Contract, net of Liquidation Expenses.
"NRSRO" means any nationally recognized statistical rating organization.
-----
"Obligor" means each Person who is indebted under a Contract.
-------
"Officer's Certificate" means a certificate signed by the Chairman of the
---------------------
Board, President or any Vice President of the Company and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may, except as
------------------
expressly provided herein, be salaried counsel for the Company, acceptable to
the Trustee and the Company, provided that any opinion of counsel relating to
the qualification of the Subsidiary REMIC or the Master REMIC as a REMIC or
compliance with the REMIC Provisions must be an opinion of Independent counsel.
"Original Class A Principal Balance" means the sum of the Original
----------------------------------
Principal Balances of the Class A Certificates.
"Original Principal Balance" means as to each Class of Master Certificates,
--------------------------
the amount set forth with respect to such Class in Section 2.05(b).
"Partial Principal Prepayment" means (a) any Principal Prepayment other
----------------------------
than a Principal Prepayment in Full and (b) any cash amount deposited in the
Certificate Account pursuant to the provision in Section 3.05(a) or pursuant to
Section 3.05(b).
"Paying Agent" has the meaning assigned in Section 8.01(c).
------------
"Percentage Interest" means, as to any Certificate, the percentage interest
-------------------
evidenced thereby in distributions made on the related Class, such percentage
interest being equal to, in the case of the Class A, Class M-1, Class M-2, and
Class B Certificates, the percentage (carried to eight places) obtained from
dividing the denomination of such Certificate by the Original Principal Balance
of the related Class; and in the case of the Class B-3I, Class C Subsidiary
Certificate and Class C Certificates, the percentage specified on the face of
such Certificate. The aggregate Percentage Interests for each Class of
Certificates shall equal 100%, respectively.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" has the meaning assigned in Section 9.02(b)(2).
----
1-28
"Pool Factor" means, at any time, the percentage derived from a fraction,
-----------
the numerator of which is the aggregate Principal Balance of each Class of
Certificates at such time and the denominator of which is the Cut-off Date Pool
Principal Balance.
"Pool Scheduled Principal Balance" means, as of any Remittance Date, the
--------------------------------
aggregate Scheduled Principal Balance of all Contracts that were outstanding
during the related Due Period.
"Post-Funding Remittance Date" means the Remittance Date on, or the first
----------------------------
Remittance Date after, the last day of the Pre-Funding Period.
"Pre-Funded Amount" means with respect to any date of determination, the
-----------------
amount then on deposit in the Pre-Funding Account, after giving effect to any
sale of Subsequent Contracts to the Trust on such date, excluding any investment
earnings.
"Pre-Funding Account" means the account, if any, so designated, established
-------------------
and maintained pursuant to Section 8.07.
"Pre-Funding Period" means the period beginning on the Closing Date and
------------------
ending on the earliest of (a) the date on which the amount on deposit in the
Pre-Funding Account is less than $10,000, (b) July 30, 1999 or (c) the date on
which an Event of Termination occurs.
"Pre-Funding Subaccount" means the subaccount, if any, so designated,
----------------------
established and maintained pursuant to Section 8.07.
"Principal Prepayment" means a payment or other recovery of principal on a
--------------------
Contract (exclusive of Liquidation Proceeds) which is received in advance of its
scheduled due date and applied upon receipt (or, in the case of a Partial
Principal Prepayment, upon the next scheduled payment date on such Contract) to
reduce the outstanding principal amount due on such Contract prior to the date
or dates on which such principal amount is due.
"Principal Prepayment in Full" means any Principal Prepayment of the entire
----------------------------
principal balance of a Contract.
"Ratings Adjustment Date" has the meaning assigned in Section 3.07.
-----------------------
"Rating Agencies" means Standard & Poor's and Fitch.
---------------
"Realized Losses" means, as to any Remittance Date, the aggregate Net
---------------
Liquidation Losses of all Contracts that became Liquidated Contracts during the
immediately preceding month.
"Record Date" means the Business Day immediately preceding the related
-----------
Remittance Date.
"Regular Certificate" means a Class A, Class M-1, Class M-2, Class B or
-------------------
Class B-3I Certificate.
1-29
"Remaining Amount Available" means, as to any Remittance Date, the Amount
--------------------------
Available less the sum of (i) any amounts paid to the Servicer pursuant to
Section 8.03(a)(1), (ii) the Class A Distribution Amount, (iii) the Class M-1
Distribution Amount, (iv) the Class M-2 Distribution Amount and (v) the Class B-
1 Distribution Amount.
"REMIC" means a "real estate mortgage investment conduit" as defined in
-----
Section 860D of the Code.
"REMIC Provisions" means the provisions of the federal income tax law
----------------
relating to REMICs, which appear at Sections 860A through 860G of the Code, and
related provisions and any temporary, proposed or final regulations promulgated
thereunder, as the foregoing may be in effect from time to time.
"Remittance Date" means the first day of each month during the term of this
---------------
Agreement, or if such day is not a Business Day, the next succeeding Business
Day, commencing on July 1, 1999.
"Remittance Rate" means with respect to each Class of Certificates, the
---------------
rate set forth for such Class in Section 2.05(b).
"Replaced Contract" has the meaning assigned in Section 3.05(b).
-----------------
"Repurchase Price" means, with respect to a Contract to be repurchased
----------------
pursuant to Section 3.05, an amount equal to (a) the remaining principal amount
outstanding on such Contract (or, with respect to an Unfunded Contract being
repurchased pursuant to Section 3.05(c), the Cut-off Date Principal Balance of
such Unfunded Contract), plus (b) interest at the Contract Rate on such Contract
from the end of the Due Period with respect to which the Obligor last made a
payment through the end of the immediately preceding Due Period.
"Responsible Officer" means, with respect to the Trustee, the chairman and
-------------------
any vice chairman of the board of directors, the president, the chairman and
vice chairman of any executive committee of the board of directors, every vice
president, assistant vice president, the secretary, every assistant secretary,
cashier or any assistant cashier, controller or assistant controller, the
treasurer, every assistant treasurer, every trust officer, assistant trust
officer and every other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by persons who at the time shall
be such officers, respectively, or to whom a corporate trust matter is referred
because of knowledge of, familiarity with, and authority to act with respect to
a particular matter.
"Scheduled Principal Balance" means, as to any Contract and any Remittance
---------------------------
Date, or the Cut-off Date or the Subsequent Cut-off Date, as applicable, the
principal balance of such Contract as of the Due Date in the related Due Period
or as of the Due Date immediately preceding the Cut-off Date or the Subsequent
Cut-off Date, as applicable, as the case may be, as specified in the
amortization schedule at the time relating thereto (after any adjustment to such
amortization schedule by reason of any bankruptcy of an Obligor or similar
proceeding or any moratorium or similar
1-30
waiver or grace period) after giving effect to any previous Partial Principal
Prepayments and to the payment of principal due on such Due Date and
irrespective of any delinquency in payment by, or extension granted to, the
related Obligor.
"Servicer" means the Company until any Service Transfer hereunder and
--------
thereafter means the new servicer appointed pursuant to Article VII.
"Service Transfer" has the meaning assigned in Section 7.02.
----------------
"Servicing Officer" means any officer of the Servicer involved in, or
-----------------
responsible for, the administration and servicing of Contracts whose name
appears on a list of servicing officers appearing in an Officer's Certificate
furnished to the Trustee by the Company, as the same may be amended from time to
time.
"Sixty-Day Delinquency Ratio" means, as to any Remittance Date, a fraction,
---------------------------
expressed as a percentage, the numerator of which is the aggregate of the
outstanding balances of all Contracts that were delinquent 60 days or more as of
the end of the related Due Period (including Contracts in respect of which the
related Manufactured Homes have been repossessed but are still in inventory),
and the denominator of which is the Pool Scheduled Principal Balance as of such
Remittance Date.
"Staged-Funding Contract" means an Initial Contract with respect to which
-----------------------
the Company has agreed to make multiple disbursements (up to the related Cut-off
Date Principal Balance) with respect to the purchase of the related Manufactured
Home and improvement of the related real estate, but not all such disbursements
have been made as of the Closing Date.
"Staged-Funding Contract Reserve Account" means the account established and
---------------------------------------
maintained pursuant to Section 3.07.
"Standard & Poor's" means Standard & Poor's Rating Services, a division of
-----------------
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto; provided that if
Standard & Poor's does not then have a rating outstanding on any of the Class A,
Class M-1, Class M-2 or Class B Certificates, then references herein to
"Standard & Poor's" shall be deemed to refer to the NRSRO then rating any Class
of the Certificates (or, if more than one such NRSRO is then rating any Class of
the Certificates, to such NRSRO as may be designated by the Servicer), and
references herein to ratings by or requirements of Standard & Poor's shall be
deemed to have the equivalent meanings with respect to ratings by or
requirements of such NRSRO.
"Step-up Rate Contract" means any Contract bearing interest during an
---------------------
initial period or periods at a fixed rate or fixed rates that are lower than the
fixed rate borne thereafter.
"Subsequent Contract" means a Contract sold by the Company to the Trust
-------------------
pursuant to Section 2.03, such Contract being identified on Exhibit A attached
to a Subsequent Transfer Instrument.
1-31
"Subsequent Cut-off Date" means, with respect to a Subsequent Contract, the
-----------------------
first day of the calendar month immediately following the related Subsequent
Transfer Date.
"Subsequent Transfer Date" means, with respect to each Subsequent Transfer
------------------------
Instrument, the date on which the related Subsequent Contracts are sold to the
Trust.
"Subsequent Transfer Instrument" means each Subsequent Transfer Instrument
------------------------------
dated as of a Subsequent Transfer Date executed by the Trustee and the Company
substantially in the form of Exhibit P, by which the Company sells Subsequent
Contracts to the Trust.
"Subsidiary Interest Principal Balance" means, with respect to each Class
-------------------------------------
of Uncertificated Subsidiary Interests, the Principal Balance of the
Corresponding Certificate Class.
"Subsidiary Interest Shortfall" means, with respect to each Class of
-----------------------------
Uncertificated Subsidiary Interests and any Remittance Date, the amount, if any,
by which the amount distributed on such Class on such Remittance Date pursuant
to Section 8.03(b)(5) is less than the amount specified in Section 8.03(b)(5).
"Subsidiary REMIC" means one of the two separate REMICs comprising the
----------------
corpus of the Trust created by this Agreement, the assets of which shall consist
of (a) all the rights, benefits, and obligations arising from and in connection
with each Contract and any related Mortgage, (b) all rights under any Hazard
Insurance Policy relating to a Manufactured Home securing a Contract for the
benefit of the creditor of such Contract and proceeds from the Errors and
Omissions Protection Policy and any blanket hazard policy to the extent such
proceeds relate to any Manufactured Home, (c) all rights under any FHA/VA
Regulation pertaining to any FHA/VA Contract, (d) all remittances, deposits and
payments made into the Certificate Account and amounts in the Certificate
Account (other than payments on the Subsidiary Interests and any Guarantee
Payments), (e) all proceeds in any way derived from any of the foregoing items,
and (f) all documents contained in the Contract Files or the Land-and-Home
Contract Files.
"Trust" means the trust created by this Agreement, the corpus of which
-----
consists of (a) all the rights, benefits, and obligations arising from and in
connection with each Contract and any related Mortgage, (b) all rights under any
Hazard Insurance Policy relating to a Manufactured Home securing a Contract for
the benefit of the creditor of such Contract and proceeds from the Errors and
Omissions Protection Policy and any blanket hazard policy to the extent such
proceeds relate to any Manufactured Home, (c) all rights under any FHA/VA
Regulation pertaining to any FHA/VA Contract, (d) all remittances, deposits and
payments made into the Certificate Account and amounts in the Certificate
Account, (e) all proceeds in any way derived from any of the foregoing items,
(f) all documents contained in the Contract Files or the Land-and-Home Contract
Files, together with the assignments of mortgage described in Section 2.02(i),
(g) the Limited Guarantee for the benefit of the Class B-2 Certificateholders,
if any, (h) the obligations and related demand note of the Company delivered
pursuant to Section 3.05(c), and the related Staged-Funding Contract Reserve
Account, if any, (i) the Capitalized Interest Account, if any, and (j) the Pre-
Funding Account, if any.
1-32
"Uncertificated Subsidiary Interests" means the Class A-S1, Class A-S2,
-----------------------------------
Class A-S3, Class A-S4, Class A-S5, Class A-S6, Class A-S7, Class A-S8, Class A-
S9, Class M-S1, Class M-S2, Class B-S1 and Class B-S2 Interests, collectively.
"Undelivered Contract" means as of any date of determination an Initial
--------------------
Contract identified, on the exception report attached to the Acknowledgment
delivered by the Trustee under Section 2.04, as a Land-and-Home Contract as to
which the Trustee did not receive the related Contract File as of the Closing
Date and has not received the related Contract File and remitted payment to the
Company pursuant to Section 8.07(d).
"Undelivered Contract Subaccount" means the subaccount so designated and
-------------------------------
established and maintained pursuant to Section 8.07.
"Underwriters" means ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
------------
▇▇▇▇▇▇ Brothers Inc. and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC.
"Unfunded Contract" has the meaning specified in Section 3.05(c).
-----------------
"Unfunded Contract Shortfall" has the meaning specified in Section 3.05(c).
---------------------------
"Unpaid Class A Interest Shortfall" means, as to each Class of Class A
---------------------------------
Certificates and any Remittance Date, the amount, if any, of the Class A
Interest Shortfall for the prior Remittance Date, plus accrued interest (to the
extent payment thereof is legally permissible) at the related Remittance Rate on
the amount thereof from such prior Remittance Date to such current Remittance
Date (calculated in the manner specified in Section 1.03).
"Unpaid Class A Principal Shortfall" means, as to any Remittance Date, the
----------------------------------
amount, if any, by which the aggregate of the Class A Principal Shortfalls for
prior Remittance Dates is in excess of the amounts distributed on prior
Remittance Dates to Holders of Class A Certificates pursuant to Section
8.03(a)(6)(ii).
"Unpaid Class B-1 Interest Shortfall" means, as to any Remittance Date, the
-----------------------------------
amount, if any, of the Class B-1 Interest Shortfall for the prior Remittance
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class B-1 Remittance Rate on the amount thereof from such
prior Remittance Date to such current Remittance Date (calculated in the manner
specified in Section 1.03).
"Unpaid Class B-2 Interest Shortfall" means, as to any Remittance Date, the
-----------------------------------
amount, if any, of the Class B-2 Interest Shortfall for the prior Remittance
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class B-2 Remittance Rate on the amount thereof from such
prior Remittance Date to such current Remittance Date (calculated in the manner
specified in Section 1.03).
1-33
"Unpaid Class B-1 Liquidation Loss Interest Shortfall" means, as to any
----------------------------------------------------
Remittance Date, the sum of (i) the amount, if any, of the remainder of (x) the
Class B-1 Liquidation Loss Interest Amount, if any, for the immediately prior
Remittance Date, plus (y) the Unpaid Class B-1 Liquidation Loss Interest
Shortfall determined as of such immediately prior Remittance Date, minus (z) all
amounts distributed to the Holders of the Class B-1 Certificates on account of
any Unpaid Class B-1 Liquidation Loss Interest Shortfall pursuant to Section
8.03(a)(9)(iv) on such immediately prior Remittance Date, plus (ii) accrued
interest (to the extent payment thereof is legally permissible) at the Class B-1
Remittance Rate on the amount specified in clause (i) from such prior Remittance
Date to such current Remittance Date (calculated in the manner specified in
Section 1.03).
"Unpaid Class B-1 Principal Shortfall" means, as to any Remittance Date,
------------------------------------
the amount, if any, by which the aggregate of the Class B-1 Principal Shortfalls
for prior Remittance Dates is in excess of the amounts distributed on prior
Remittance Dates to Holders of Class B-1 Certificates pursuant to Section
8.03(a)(9)(i).
"Unpaid Class B-2 Principal Shortfall" means, as to any Remittance Date,
------------------------------------
the amount, if any, by which the aggregate of the Class B-2 Principal Shortfalls
for prior Remittance Dates is in excess of the amounts distributed on prior
Remittance Dates to Holders of Class B-2 Certificates pursuant to Section
8.03(a)(10)(iii), together with any Guarantee Payments allocable to principal.
"Unpaid Class B-3I Shortfall" means, as to any Remittance Date, the amount,
---------------------------
if any, by which the aggregate of the Class B-3I Shortfalls for prior Remittance
Dates is in excess of the amounts distributed on prior Remittance Dates to
Holders of Class B-3I Certificates pursuant to Section 8.03(a)(12) in respect of
any Unpaid Class B-3I Shortfall.
"Unpaid Class M-1 Interest Shortfall" means, as to any Remittance Date, the
-----------------------------------
amount, if any, of the Class M-1 Interest Shortfall for the prior Remittance
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class M-1 Remittance Rate on the amount thereof from such
prior Remittance Date to such current Remittance Date (calculated in the manner
specified in Section 1.03).
"Unpaid Class M-2 Interest Shortfall" means, as to any Remittance Date, the
-----------------------------------
amount, if any, of the Class M-2 Interest Shortfall for the prior Remittance
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class M-2 Remittance Rate on the amount thereof from such
prior Remittance Date to such current Remittance Date (calculated in the manner
specified in Section 1.03).
"Unpaid Class M-1 Liquidation Loss Interest Shortfall" means, as to any
----------------------------------------------------
Remittance Date, the sum of (i) the amount, if any, of the remainder of (x) the
Class M-1 Liquidation Loss Interest Amount, if any, for the immediately prior
Remittance Date, plus (y) the Unpaid Class M-1 Liquidation Loss Interest
Shortfall determined as of such immediately prior Remittance Date, minus (z) all
amounts distributed to the Holders of the Class M-1 Certificates on account of
any Unpaid Class M-1 Liquidation Loss Interest Shortfall pursuant to Section
8.03(a)(7)(iv) on such immediately prior Remittance Date, plus (ii) accrued
interest (to the extent payment thereof is legally
1-34
permissible) at the Class M-1 Remittance Rate on the amount specified in clause
(i) from such prior Remittance Date to such current Remittance Date (calculated
in the manner specified in Section 1.03).
"Unpaid Class M-2 Liquidation Loss Interest Shortfall" means, as to any
----------------------------------------------------
Remittance Date, the sum of (i) the amount, if any, of the remainder of (x) the
Class M-2 Liquidation Loss Interest Amount, if any, for the immediately prior
Remittance Date, plus (y) the Unpaid Class M-2 Liquidation Loss Interest
Shortfall determined as of such immediately prior Remittance Date, minus (z) all
amounts distributed to the Holders of the Class M-2 Certificates on account of
any Unpaid Class M-2 Liquidation Loss Interest Shortfall pursuant to Section
8.03(a)(8)(iv) on such immediately prior Remittance Date, plus (ii) accrued
interest (to the extent payment thereof is legally permissible) at the Class M-2
Remittance Rate on the amount specified in clause (i) from such prior Remittance
Date to such current Remittance Date (calculated in the manner specified in
Section 1.03).
"Unpaid Class M-1 Principal Shortfall" means, as to any Remittance Date,
------------------------------------
the amount, if any, by which the aggregate of the Class M-1 Principal Shortfalls
for prior Remittance Dates is in excess of the amounts distributed on prior
Remittance Dates to Holders of Class M-1 Certificates pursuant to Section
8.03(a)(7)(i).
"Unpaid Class M-2 Principal Shortfall" means, as to any Remittance Date,
------------------------------------
the amount, if any, by which the aggregate of the Class M-2 Principal Shortfalls
for prior Remittance Dates is in excess of the amounts distributed on prior
Remittance Dates to Holders of Class M-2 Certificates pursuant to Section
8.03(a)(8)(i).
"Unpaid Subsidiary Interest Shortfall" means, as to any Remittance Date and
------------------------------------
any Class of Uncertificated Subsidiary Interests, the amount, if any, of the
Subsidiary Interest Shortfall for the prior Remittance Date with respect to such
Class, plus accrued interest (to the extent payment thereof is legally
permissible) at 1/12th of the Weighted Average Contract Rate on the amount
thereof from such prior Remittance Date to such current Remittance Date.
"Weighted Average Contract Rate" means, as to any Remittance Date, the
------------------------------
weighted average (determined by Scheduled Principal Balance) of the Contract
Rates of all Contracts that were outstanding during the prior related Due
Period.
SECTION 1.03. Calculations.
------------
All calculations of the amount of interest accrued on the Certificates
with respect to any Remittance Date shall be determined as follows:
a. with respect to the Class A-1 Certificates and the Remittance
Date in July 1999, interest shall accrue from and including the Closing
Date to but excluding July 1, 1999, and shall be calculated on the basis of
actual days elapsed in a 360-day year;
1-35
b. with respect to the Class A-1 Certificates and any subsequent
Remittance Date, interest shall accrue from and including the prior
Remittance Date to but excluding the current Remittance Date, and shall be
calculated on the basis of actual days elapsed in a 360-day year;
c. with respect to the Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6, Class A-7, Class A-8, Class A-9, Class M, Class B and Class B-3I
Certificates and the Remittance Date in July 1999, interest shall accrue
from and including the Closing Date to but excluding July 1, 1999, and
shall be calculated on the basis of a 360-day year of twelve 30-day months;
and
d. with respect to the Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6, Class A-7, Class A-8, Class A-9, Class M, Class B and Class B-3I
Certificates and any subsequent Remittance Date, one month's interest shall
accrue, calculated on the basis of a 360-day year of twelve 30-day months.
1-36
ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF CONTRACTS
---------------------------------------------
SECTION 2.01. Closing.
-------
a. There is hereby created, by the Company as settlor, a separate trust
which shall be known as Manufactured Housing Contract Senior/Subordinate Pass-
Through Certificate Trust 1999-3. By the execution and delivery of this
Agreement, the Company has agreed that it will elect or will cause an election
to be made to treat the pool of assets comprising each of the Subsidiary REMIC
and the Master REMIC, excluding the Staged-Funding Contract Reserve Account, the
obligation and related demand note of the Company pursuant to Section 3.05(c),
the Capitalized Interest Account and the Pre-Funding Account, as a REMIC. The
Trust shall be administered pursuant to the provisions of this Agreement for the
benefit of the Certificateholders.
b. The Company hereby transfers, assigns, delivers, sells, sets over and
otherwise conveys to the Trustee on behalf of the Trust, by execution of an
assignment substantially in the form of Exhibit D hereto, (1) all the right,
title and interest of the Company in and to the Contracts, including, without
limitation, all right, title and interest in and to the Collateral Security and
all rights to receive payments on or with respect to the Contracts (other than
the principal and interest due on the Contracts before the applicable Cut-off
Date or Subsequent Cut-off Date), (2) all rights under every Hazard Insurance
Policy relating to a Manufactured Home securing a Contract for the benefit of
the creditor of such Contract, (3) all rights under all FHA/VA Regulations
pertaining to any Contract that is an FHA/VA Contract, (4) the proceeds from the
Errors and Omissions Protection Policy and all rights under any blanket hazard
insurance policy to the extent they relate to the Manufactured Homes, (5) all
documents contained in the Contract Files and the Land-and-Home Contract Files,
(6) $8,994,036.05 paid by the underwriters of the Certificates to the Trustee by
order of the Company out of the proceeds of the sale of the Certificates (which
such underwriters shall, by order of the Trustee, remit directly to the Company
pursuant to Section 2.01(c)), (7) amounts on deposit in the Capitalized Interest
Account, (8) amounts on deposit in the Pre-Funding Account and (9) all proceeds
and products in any way derived from any of the foregoing.
c. The Company hereby acknowledges receipt from the Trust of
$8,994,036.05 paid to the Company by the underwriters of the Certificates by
order of the Trust, equal to the difference between the aggregate Cut-off Date
Principal Balances of the Staged-Funding Contracts and the principal balance of
the Staged-Funding Contracts as of the Closing Date. The Company agrees, in
consideration for such funds, that it will use its best efforts (consistent with
prudent lending practices) to cause each Staged-Funding Contract to be fully
disbursed on or before the Funding Termination Date. The additional payment
obligations of any Obligor attributable to any further disbursements on any
Staged-Funding Contract made on or before the Funding Termination Date shall
automatically become the property of the Trust, without further action by the
Company or the Trust. The payment to the Company by the Trust and the transfer
of additional obligations to the Trust pursuant to this Section 2.01(c) shall be
a purchase by the Trust of qualified mortgages pursuant to a fixed price
contract within the meaning of Section 860G(a)(3) of the Code.
2-1
d. Although the parties intend that the conveyance of the Company's
right, title and interest in and to the Contracts and the Collateral Security
pursuant to this Agreement and each Subsequent Transfer Instrument shall
constitute a purchase and sale and not a pledge of security for loans from the
Certificateholders, it is the intent of this Agreement that if such conveyances
are deemed to be a pledge of security for loans from the Certificateholders or
any other Persons (the "Secured Obligations"), the parties intend that the
rights and obligations of the parties to the Secured Obligations shall be
established pursuant to the terms of this Agreement. The parties also intend and
agree that the Company shall be deemed to have granted to the Trustee, and the
Company does hereby grant to the Trustee, a perfected first-priority security
interest in the items designated in Section 2.01(b)(1) through 2.01(b)(9) above
and in each Subsequent Transfer Instrument, and all proceeds thereof, to secure
the Secured Obligations, and that this Agreement shall constitute a security
agreement under applicable law. If the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person under any
Certificates or the Secured Obligations, the security interest created hereby
shall continue in full force and effect and the Trustee shall be deemed to be
the collateral agent for the benefit of such Person.
SECTION 2.02. Conditions to the Closing.
-------------------------
On or before the Closing Date, the Company shall deliver or cause to be
delivered the following documents to the Trustee:
a. The List of Contracts identifying all Initial and Additional
Contracts, certified by the Chairman of the Board, President or any Vice
President of the Company.
b. A certificate of an officer of the Company substantially in the
form of Exhibit E hereto.
c. An Opinion of Counsel for the Company substantially in the form of
Exhibit F hereto.
d. The Trustee's acknowledgment in the form of Exhibit G hereto.
e. A letter acceptable to the Underwriters from KPMG Peat Marwick LLP
or another nationally recognized accounting firm, stating that such firm
has reviewed the Initial Contracts on a statistical sampling basis and
setting forth the results of such review.
f. Copies of resolutions of the board of directors of the Company or
of the executive committee of the board of directors of the Company
approving the execution, delivery and performance of this Agreement, the
creation of the Trust and the transactions contemplated hereunder,
certified in each case by the secretary or an assistant secretary of the
Company.
2-2
g. Officially certified recent evidence of due incorporation and good
standing of the Company under the laws of the State of Delaware.
h. Evidence of filing with the Secretary of State of Minnesota of a
UCC-1 financing statement, executed by the Company as debtor, naming the
Trustee as secured party and listing the Contracts as Collateral.
i. The Land-and-Home Contract File for each Initial and Additional
Contract that is a Land-and-Home Contract.
j. An executed copy of the Assignment substantially in the form of
Exhibit D hereto.
k. An Officer's Certificate listing the Servicer's Servicing
Officers.
l. Evidence of continued coverage of the Company under the Errors and
Omissions Protection Policy.
m. Evidence of deposit in the Certificate Account of all funds
received with respect to the Initial and Additional Contracts from the Cut-
off Date to the Closing Date, other than amounts due before the Cut-off
Date, together with an Officer's Certificate to the effect that such amount
is correct.
n. An Officer's Certificate confirming that the Company's internal
audit department has reviewed the original or a copy of each Initial and
Additional Contract and each related Contract File or Land-and-Home
Contract File, as applicable, that each Initial and Additional Contract and
related Contract File or Land-and-Home Contract File, as applicable,
conforms in all material respects with the List of Contracts and that each
such Contract File or Land-and-Home Contract File, as applicable, is
complete in all material respects and that each Manufactured Home securing
a Contract is covered by a Hazard Insurance Policy as required by Section
3.02(f).
o. A letter from Fitch confirming that the Class A-1 Certificates
have been assigned a rating of "F-1+" by Fitch and the Class A-2 through
Class A-9 Certificates have been assigned a rating of "AAA" by Fitch and a
letter from Standard & Poor's confirming that the Class A-1 Certificates
have been assigned a rating of "A-1+" by Standard & Poor's and the Class A-
2 through Class A-9 Certificates have been assigned a rating of "AAA" by
Standard & Poor's.
p. A letter from Fitch confirming that the Class M-1 Certificates
have been assigned a rating of "AA" by Fitch and the Class M-2 Certificates
have been assigned a rating of "A" by Fitch and a letter from Standard &
Poor's confirming that the Class M-1 Certificates have been assigned a
rating of "AA" by Standard & Poor's and the Class M-2 Certificates have
been assigned a rating of "A" by Standard & Poor's.
2-3
q. A letter from Fitch confirming that the Class B-1 Certificates
have been assigned a rating of "BBB" by Fitch and the Class B-2
Certificates have been assigned a rating of "BBB+" by Fitch and a letter
from Standard & Poor's confirming that the Class B-1 Certificates have been
assigned a rating of "BBB+" by Standard & Poor's and the Class B-2
Certificates have been assigned a rating of "BBB-" by Standard & Poor's.
r. The demand note described in Section 3.05(c)(v).
s. Evidence of the deposit of $0 in the Capitalized Interest Account.
t. Evidence of the deposit of $0 in the Pre-Funding Subaccount.
u. Evidence of the deposit in the Undelivered Contract Subaccount of
an amount equal to the difference between the aggregate Cut-off Date
Principal Balances of the Initial Contracts and the aggregate Cut-off Date
Principal Balances of the Undelivered Contracts.
v. Any other documents or certificates that the Trustee may
reasonably request.
SECTION 2.03. Conveyance of the Subsequent Contracts.
--------------------------------------
a. Subject to the conditions set forth in paragraph (b) below, in
consideration of the Trustee's delivery on the related Subsequent Transfer Dates
to or upon the order of the Company of all or a portion of the balance of funds
in the Pre-Funding Account, the Company shall on any Subsequent Transfer Date
sell, transfer, assign, set over and convey to the Trust by execution and
delivery of a Subsequent Transfer Instrument, all the right, title and interest
of the Company in and to the Subsequent Contracts identified on the List of
Contracts attached to the Subsequent Transfer Instrument, including all rights
to receive payments on or with respect to the Subsequent Contracts due after the
related Subsequent Cut-off Date, and all items with respect to such Subsequent
Contracts in the related Contract Files. The transfer to the Trustee by the
Company of the Subsequent Contracts shall be absolute and is intended by the
Company, the Trustee and the Certificateholders to constitute and to be treated
as a sale of the Subsequent Contracts by the Company to the Trust.
The purchase price paid by the Trustee shall be one hundred percent (100%)
of the aggregate Cut-off Date Principal Balances of such Subsequent Contracts.
The purchase price of Subsequent Contracts shall be paid solely with amounts in
the Pre-Funding Account. This Agreement shall constitute a fixed price contract
in accordance with Section 860G(a)(3)(A)(ii) of the Code.
b. The Company shall transfer to the Trustee the Subsequent Contracts,
and the Trustee shall release funds from the Pre-Funding Account, only upon the
satisfaction of each of the following conditions on or prior to the related
Subsequent Transfer Date:
2-4
(i) the Company shall have provided the Trustee with an Addition
Notice at least five Business Days prior to the Subsequent Transfer Date
and shall have provided any information reasonably requested by the Trustee
with respect to the Subsequent Contracts;
(ii) the Company shall have delivered the related Land-and-Home
Contract File for each Subsequent Land-and-Home Contract to the Custodian
at least two Business Days prior to the Subsequent Transfer Date;
(iii) the Company shall have delivered to the Trustee a duly executed
Subsequent Transfer Instrument substantially in the form of Exhibit P,
which shall include a List of Contracts identifying the related Subsequent
Contracts;
(iv) as of each Subsequent Transfer Date, as evidenced by delivery
of the Subsequent Transfer Instrument, the Company shall not be insolvent
nor shall it have been made insolvent by such transfer nor shall it be
aware of any pending insolvency;
(v) such sale and transfer shall not result in a material adverse
tax consequence to the Trust (including the Master REMIC and the Subsidiary
REMIC) or the Certificateholders;
(vi) the Pre-Funding Period shall not have ended;
(vii) the Company shall have delivered to the Trustee an Officer's
Certificate, substantially in the form attached hereto as Exhibit Q,
confirming the satisfaction of each condition precedent and the
representations specified in this Section 2.03 and in Sections 3.01, 3.02,
3.03 and 3.04; and
(viii) the Company shall have delivered to the Trustee Opinions of
Counsel addressed to the Rating Agencies and the Trustee with respect to
the transfer of the Subsequent Contracts substantially in the form of the
Opinions of Counsel delivered to the Trustee on the Closing Date regarding
certain bankruptcy, corporate and tax matters.
c. Before the last day of the Pre-Funding Period, the Company shall
deliver to the Trustee:
(i) A letter from KPMG Peat Marwick LLP or another nationally
recognized accounting firm retained by the Company (with copies provided to
the Rating Agencies, the Underwriters and the Trustee) that is in form,
substance and methodology the same as that delivered under Section 2.02(e)
of this Agreement, except that it shall address the Subsequent Contracts
and their conformity in all material respects to the characteristics
described in Section 3.03(b) of this Agreement.
(ii) Evidence that as a result of the purchase by the Trust of the
Subsequent Contracts, the Class A Certificates shall not receive from the
Rating Agencies a lower credit
2-5
rating than the rating assigned to such Certificates as of the Closing Date
and each Subsequent Transfer Date.
(iii) Evidence that the aggregate Cut-off Date Principal Balance of
the Subsequent Contracts, not specifically identified as Subsequent
Contracts as of the Closing Date, does not exceed 25% of the Original
Principal Balance.
SECTION 2.04. Acceptance by Trustee.
---------------------
a. On the Closing Date and each Subsequent Transfer Date, if the
conditions set forth in Section 2.02 and 2.03, respectively, have been
satisfied, the Trustee shall deliver a certificate to the Company substantially
in the form of Exhibit G hereto acknowledging conveyance of the Contracts,
identified on the applicable List of Contracts and the related Contract Files
and Land-and-Home Contract Files to the Trustee and declaring that the Trustee,
directly or through a custodian, will hold all Contracts that have been
delivered in trust, upon the terms herein set forth, for the use and benefit of
all Certificateholders and on the Closing Date the Trustee shall issue to or
upon the order of the Company Certificates representing ownership of a
beneficial interest in 100% of the Trust.
b. If, in its review of the Land-and-Home Contract Files as described in
Exhibit G, the Trustee or its Custodian discovers a breach of the
representations or warranties set forth in Sections 2.02(n), 3.02, 3.03 or 3.04,
the Company shall cure such breach or repurchase or replace such Contract
pursuant to Section 3.05.
SECTION 2.05. REMIC Provisions.
----------------
a. The Company, as Servicer, and the Class C Subsidiary Certificateholder
and the Class C Master Certificateholder, by acceptance thereof, each agrees
that, in accordance with the requirements of Section 860D(b)(1) of the Code, the
federal tax return of each of the Subsidiary REMIC and the Master REMIC for its
first taxable year shall provide that the Subsidiary REMIC or the Master REMIC,
as the case may be (excluding the Capitalized Interest Account, the obligation
and related demand note of the Company pursuant to Section 3.05(c), the Staged-
Funding Contract Reserve Account and the Pre-Funding Account) elects to be
treated as a REMIC for such taxable year and all subsequent taxable years. In
furtherance of the foregoing, the Trustee (at the direction of the Company) and
the Company shall take, or refrain from taking, all such action as is necessary
to maintain the status of each of the Subsidiary REMIC or the Master REMIC as a
REMIC under the REMIC provisions of the Code, including, but not limited to, the
taking of such action as is necessary to cure any inadvertent termination of
REMIC status.
b. The Regular Certificates are being issued in 14 classes and are hereby
designated by the Company as constituting the "regular interests" in the Master
REMIC for the purposes of Section 860G(a)(1) of the Code. The following terms of
the Regular Certificates are irrevocably established as of the Closing Date:
2-6
Pass-Through Rate Original Class
CLass Per Annum Principal Balance Maturity Date
Class A-1 4.948% $ 22,300,000 June 1, 2000
Class A-2 5.51% $ 44,000,000 February 1, 2031
Class A-3 5.80% $ 57,500,000 February 1, 2031
Class A-4 5.95% $ 41,000,000 February 1, 2031
Class A-5 6.16% $100,200,000 February 1, 2031
Class A-6 6.50% $ 22,000,000 February 1, 2031
Class A-7 6.74% $ 58,500,000 February 1, 2031
Class A-8 7.06%* $ 74,500,000 February 1, 2031
Class A-9 6.53%* $250,000,000 February 1, 2031
Class M-1 6.96%* $ 42,000,000 February 1, 2031
Class M-2 7.20%* $ 24,000,000 February 1, 2031
Class B-1 8.37%* $ 28,000,000 February 1, 2031
Class B-2 8.37%* $ 36,000,000 February 1, 2031
Class B-3I _____** ** February 1, 2031
---------------
* A floating rate (determined monthly on each Remittance Date) equal to the
Weighted Average Contract Rate, but in no event greater than the related
Remittance Rate specified above.
** The Class B-3I Certificates are interest-only Certificates entitled to the
payment of Excess Interest.
The Company does not represent that any Class of Regular Certificates will, in
fact, mature on any given date.
The Class C Master Certificates are being issued in a single class and are
hereby designated by the Company as constituting the sole class of "residual
interests" in the Master REMIC for purposes of Section 860G(a)(2) of the Code.
c. The Uncertificated Subsidiary Interests are being issued in thirteen
classes and are hereby designated by the Company as constituting the "regular
interests" in the Subsidiary REMIC for the purposes of Section 860G(a)(1) of the
Code. The following terms of the Uncertificated Subsidiary Interests are
irrevocably established as of the Closing Date:
2-7
Original Subsidiary
Pass-Through Rate Interest
Class Per Anum Principal Balance Maturity Date
Class A-S1 Weighted Average $ 22,300,000 June 1, 2000
Contract Rate
Class A-S2 Weighted Average $ 44,000,000 February 1, 2031
Contract Rate
Class A-S3 Weighted Average $ 57,500,000 February 1, 2031
Contract Rate
Class A-S4 Weighted Average $ 41,000,000 February 1, 2031
Contract Rate
Class A-S5 Weighted Average $100,200,000 February 1, 2031
Contract Rate
Class A-S6 Weighted Average $ 22,000,000 February 1, 2031
Contract Rate
Class A-S7 Weighted Average $ 58,500,000 February 1, 2031
Contract Rate
Class A-S8 Weighted Average $ 74,500,000 February 1, 2031
Contract Rate
Class A-S9 Weighted Average $250,000,000 February 1, 2031
Contract Rate
Class M-S1 Weighted Average $ 42,000,000 February 1, 2031
Contract Rate
Class M-S2 Weighted Average $ 24,000,000 February 1, 2031
Contract Rate
Class B-S1 Weighted Average $ 28,000,000 February 1, 2031
Contract Rate
Class B-S2 Weighted Average $ 36,000,000 February 1, 2031
Contract Rate
The Company does not represent that any Class of Uncertificated Subsidiary
Interests will, in fact, mature on any given date.
The Class C Subsidiary Certificates are being issued in a single class and are
hereby designated by the Company as constituting the sole class of "residual
interests" in the Subsidiary REMIC for purposes of Section 860G(a)(2) of the
Code.
d. The Closing Date, which is the day on which each of the Subsidiary
REMIC and the Master REMIC will issue all of its regular and residual interests,
is hereby designated as the "startup day" of both the Subsidiary REMIC and the
Master REMIC within the meaning of Section 860G(a)(9) of the Code.
2-8
e. After the Closing Date, neither the Trustee, the Company nor any
Servicer shall (i) accept any contribution of assets to the Subsidiary REMIC or
the Master REMIC, (ii) dispose of any portion of the Subsidiary REMIC or the
Master REMIC, other than as provided in Sections 3.05, 3.06 and 8.05, (iii)
engage in any "prohibited transaction," as defined in Sections 860F(a)(2) and
(5) of the Code, except as may be contemplated by Section 3.05(c), (iv) accept
any contribution after the Closing Date that is subject to the tax imposed by
Section 860G(d) of the Code or (v) engage in any activity or enter into any
agreement that would result in the receipt by the Subsidiary REMIC or the Master
REMIC of any "net income from foreclosure property" as defined in Section
860G(c)(2) of the Code, unless, prior to any such action set forth in clauses
(i), (ii), (iii), (iv) or (v) the Trustee shall have received an unqualified
Opinion of Counsel, which opinion shall not be an expense of the Trust, stating
that such action will not, directly or indirectly, (A) adversely affect the
status of the Subsidiary REMIC or the Master REMIC as a REMIC or the status of
the Uncertificated Subsidiary Interests as "regular interests" in the Subsidiary
REMIC, the status of the Class C Subsidiary Certificates as the sole class of
"residual interests" in the Subsidiary REMIC, the status of the Regular
Certificates as "regular interests" in the Master REMIC, or the status of the
Class C Master Certificates as the sole class of "residual interests" in the
Master REMIC, (B) affect the distributions payable hereunder to the
Certificateholders or (C) result in the imposition of any lien, charge or
encumbrance upon the Subsidiary REMIC or the Master REMIC.
f. Upon the acquisition of any real property (including interests in real
property), or any personal property incident thereto, in connection with the
default of a Contract, the Servicer and the Trustee (at the direction of the
Servicer) shall take, or cause to be taken, such action as is necessary to sell
or otherwise dispose of such property within such period as is then required by
the Code in order for such property to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code, unless the Servicer and the
Trustee receive an Opinion of Counsel to the effect that the holding by the
Subsidiary REMIC or the Master REMIC of such property subsequent to the period
then permitted by the Code will not result in the imposition of any taxes on
"prohibited transactions" of the Subsidiary REMIC or the Master REMIC, as
defined in Section 860F of the Code, or cause the Subsidiary REMIC or the Master
REMIC to fail to qualify as a REMIC at any time that the Uncertificated
Subsidiary Interests, Class C Subsidiary Certificates, Regular Certificates or
Class C Master Certificates are outstanding. The Servicer shall manage,
conserve, protect and operate such real property, or any personal property
incident thereto, so that such property will not fail to qualify as "foreclosure
property," as defined in Section 860G(a)(8) of the Code, and that the
management, conservation, protection and operation of such property will not
result in the receipt by the Subsidiary REMIC or the Master REMIC of any "income
from nonpermitted assets," within the meaning of Section 860F(a)(2)(B) of the
Code.
2-9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company makes the following representations and warranties, on
which the Trustee will rely in accepting the Contracts in trust and issuing the
Certificates on behalf of the Trust. The repurchase or substitution obligation
of the Company set forth in Section 3.05 constitutes the sole remedy available
to the Trust or the Certificateholders for a breach of a representation or
warranty of the Company set forth in Section 2.02(n), 3.02, 3.03 or 3.04 of this
Agreement.
SECTION 3.01. Representations and Warranties Regarding the Company.
----------------------------------------------------
The Company represents and warrants to the Trustee and the
Certificateholders, effective on the Closing Date and each Subsequent Transfer
Date, that:
a. Organization and Good Standing. The Company is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its
assets and to transact the business in which it is currently engaged. The
Company is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial
or other) of the Company.
b. Authorization; Binding Obligations. The Company has the power and
----------------------------------
authority to make, execute, deliver and perform this Agreement and all of
the transactions contemplated under this Agreement, and to create the Trust
and cause it to make, execute, deliver and perform its obligations under
this Agreement and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement and to cause the
Trust to be created. When executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and by the availability of
equitable remedies.
c. No Consent Required. The Company is not required to obtain the
-------------------
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.
d. No Violations. The execution, delivery and performance of this
-------------
Agreement by the Company will not violate any provision of any existing law
or regulation or any order or decree of any court or the Certificate of
Incorporation or Bylaws of the Company, or constitute a material breach of
any mortgage, indenture, contract or other agreement to which the Company
is a party or by which the Company may be bound.
3-1
e. Litigation. No litigation or administrative proceeding of or
----------
before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Company threatened, against the Company or any of its
properties or with respect to this Agreement or the Certificates which, if
adversely determined, would in the opinion of the Company have a material
adverse effect on the transactions contemplated by this Agreement.
f. Licensing. The Company is duly registered as a finance company in
---------
each state in which Contracts were originated, to the extent such
registration is required by applicable law.
SECTION 3.02. Representations and Warranties Regarding Each
---------------------------------------------
Contract.
--------
The Company represents and warrants to the Trustee and the
Certificateholders, as of the Closing Date with respect to each Initial or
Additional Contract, and as of the applicable Subsequent Transfer Date with
respect to each Subsequent Contract:
a. List of Contracts. The information set forth in the applicable
-----------------
List of Contracts is true and correct as of its date.
b. Payments. As of the Cut-off Date, the most recent scheduled
--------
payment was made by or on behalf of the Obligor (without any advance from
the Company or any Person acting at the request of the Company) or was not
past due for more than 59 days (in the case of an Initial or Additional
Contract) or 30 days (in the case of a Subsequent Contract).
c. No Waivers. The terms of the Contract have not been waived,
----------
altered or modified in any respect, except by instruments or documents
identified in the Contract File or Land-and-Home Contract File, as
applicable.
d. Binding Obligation. The Contract is the legal, valid and binding
------------------
obligation of the Obligor thereunder and is enforceable in accordance with
its terms, except as such enforceability may be limited by laws affecting
the enforcement of creditors' rights generally.
e. No Defenses. The Contract is not subject to any right of
-----------
rescission, setoff, counterclaim or defense, including the defense of
usury, and the operation of any of the terms of the Contract or the
exercise of any right thereunder will not render the Contract unenforceable
in whole or in part or subject to any right of rescission, setoff,
counterclaim or defense, including the defense of usury, and no such right
of rescission, setoff, counterclaim or defense has been asserted with
respect thereto.
f. Insurance Coverage. The Manufactured Home securing the Contract
------------------
is covered by a Hazard Insurance Policy in the amount required by Section
5.09. Each Manufactured Home secured by an FHA/VA Contract which was, at
the time of origination of the related Contract, located within a federally
designated special flood hazard area is covered by insurance coverage at
least equal to that required by Section 5.09 or such lesser coverage as may
be available under the federal flood insurance program. With respect to any
3-2
other Contract that is not an FHA/VA Contract, the Company has obtained:
(a) a statement from the Obligor's insurance agent that the Manufactured
Home was, at the time of origination of the Contract, not in a federally
designated special flood hazard area; or (b) evidence that, at the time of
origination, flood insurance was in effect, which coverage is at least
equal to that required by Section 5.09 or such lesser coverage as may be
available under the federal flood insurance program. All premiums due as of
the Closing Date on such insurance have been paid in full.
g. [Reserved]
h. Lawful Assignment. The Contract was not originated in and is not
-----------------
subject to the laws of any jurisdiction whose laws would make the transfer
of the Contract pursuant to this Agreement or pursuant to transfers of
Certificates, or the ownership of the Contract by the Trust, unlawful or
render the Contract unenforceable.
i. Compliance with Law. At the date of origination of the Contract,
-------------------
all requirements of any federal and state laws, rules and regulations
applicable to the Contract, including, without limitation, usury, truth in
lending and equal credit opportunity laws, have been complied with, and the
Company shall for at least the period of this Agreement, maintain in its
possession, available for the Trustee's inspection, and shall deliver to
the Trustee upon demand, evidence of compliance with all such requirements.
Such compliance is not affected by the Trust's ownership of the Contract.
j. Contract in Force. The Contract has not been satisfied or
-----------------
subordinated in whole or in part or rescinded, and the Manufactured Home
securing the Contract has not been released from the lien of the Contract
in whole or in part.
k. Valid Security Interest. Each Contract (other than the Land-and-
-----------------------
Home Contracts) creates a valid and enforceable perfected first priority
security interest in favor of the Company in the Manufactured Home covered
thereby as security for payment of the Cut-off Date Principal Balance of
such Contract. The Company has assigned all of its right, title and
interest in such Contract, including the security interest in the
Manufactured Home covered thereby, to the Trustee. The Trustee has and will
have a valid and perfected and enforceable first priority security interest
in such Contract and Manufactured Home.
Each Mortgage is a valid first lien in favor of the Company on real
property securing the amount owed by the Obligor under the related
Land-and-Home Contract subject only to (a) the lien of current real
property taxes and assessments, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of recording of such Mortgage, such exceptions appearing of record being
acceptable to mortgage lending institutions generally in the area wherein
the property subject to the Mortgage is located or specifically reflected
in the appraisal obtained in connection with the origination of the related
Land-and-Home Contract obtained by the Company and (c) other matters to
which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage. The Company has
3-3
assigned all of its right, title and interest in such Land-and-Home
Contract and related Mortgage, including the security interest in the
Manufactured Home covered thereby, to the Trustee. The Trustee has and will
have a valid and perfected and enforceable first priority security interest
in such Land-and-Home Contract.
l. Capacity of Parties. The signature(s) of the Obligor(s) on the
-------------------
Contract are genuine and all parties to the Contract had full legal
capacity to execute the Contract.
m. Good Title. In the case of a Contract purchased from a
----------
manufactured housing dealer, the Company purchased the Contract for fair
value and took possession thereof in the ordinary course of its business,
without knowledge that the Contract was subject to a security interest. The
Company has not sold, assigned or pledged the Contract to any person and
prior to the transfer of the Contract by the Company to the Trustee, the
Company had good and marketable title thereto free and clear of any
encumbrance, equity, loan, pledge, charge, claim or security interest and
was the sole owner thereof with full right to transfer the Contract to the
Trustee. With respect to any Contract bearing a stamp indicating that such
Contract has been sold to another party, such other party's interest in
such Contract has been released.
n. No Defaults. As of the Cut-off Date or Subsequent Cut-off Date,
-----------
as applicable, there was no default, breach, violation or event permitting
acceleration existing under the Contract and no event which, with notice
and the expiration of any grace or cure period, would constitute such a
default, breach, violation or event permitting acceleration under such
Contract (except payment delinquencies permitted by clause (b) above). The
Company has not waived any such default, breach, violation or event
permitting acceleration except payment delinquencies permitted by clause
(b) above. As of the Closing Date or the Subsequent Transfer Date, as
applicable, the related Manufactured Home is, to the best of the Company's
knowledge, free of damage and in good repair. To the best of the Company's
knowledge, no Manufactured Home has suffered damage that is not covered by
a Hazard Insurance Policy, including, but not limited to, hurricanes,
earthquakes, floods, tornadoes, straight-line winds, sinkholes, mudslides,
volcanic eruptions and other natural disasters.
o. No Liens. As of the Closing Date or the Subsequent Transfer Date,
--------
as applicable, there are, to the best of the Company's knowledge, no liens
or claims which have been filed for work, labor or materials affecting the
Manufactured Home or any related Mortgaged Property securing the Contract
which are or may be liens prior to, or equal or coordinate with, the lien
of the Contract.
p. Equal Installments. Except for 339 Step-up Rate Contracts
------------------
included among the Initial Contracts and 112 Step-up Rate Contracts
included among the Additional Contracts, each Contract has a fixed Contract
Rate and provides for level monthly payments which fully amortize the loan
over its term. Of the Step-up Rate Contracts, 18 provide for a single rate
increase and 433 provide for two rate increases.
3-4
q. Enforceability. The Contract contains customary and enforceable
--------------
provisions so as to render the rights and remedies of the holder thereof
adequate for the realization against the collateral of the benefits of the
security provided thereby.
r. One Original. There is only one original executed Contract (other
------------
than the original executed copy retained by the Obligor), which Contract
has been delivered to the Trustee or its custodian on or before the Closing
Date or the Subsequent Transfer Date, as applicable. Each Contract (other
than the Land-and-Home Contracts) has been stamped to reflect the
assignment of such Contract to the Trustee.
s. Loan-to-Value Ratio. At the time of their origination all of the
-------------------
Contracts had Loan-to-Value Ratios not greater than 100%; if the related
Manufactured Home was new at the time such Contract was originated, the
original principal balance of such Contract did not exceed 130% of the
manufacturer's invoice price, plus 100% of the taxes and license fees, 130%
of the freight charges, 100% of the dealer's cost of additional dealer-
installed equipment (not to exceed 25% of the original principal balance of
such Contract in all states except California; not to exceed 70% of the
manufacturer's invoice price in California if required to meet park
requirements) and up to $1,500 of set-up costs per module.
t. Primary Resident. At the time of origination of the Contract the
----------------
Obligor was the primary resident of the related Manufactured Home.
u. Not Real Estate. With respect to each Contract other than a Land-
---------------
and-Home Contract, the related Manufactured Home is not considered or
classified as part of the real estate on which it is located under the laws
of the jurisdiction in which it is located.
v. Notation of Security Interest. With respect to each Contract
-----------------------------
other than a Land-and-Home Contract, if the related Manufactured Home is
located in a state in which notation of a security interest on the title
document is required or permitted to perfect such security interest, the
title document shows, or if a new or replacement title document with
respect to such Manufactured Home is being applied for such title document
will be issued within 180 days and will show, the Company as the holder of
a first priority security interest in such Manufactured Home; if the
related Manufactured Home is located in a state in which the filing of a
financing statement under the UCC is required to perfect a security
interest in manufactured housing, such filings or recordings have been duly
made and show the Company as secured party. If the related Manufactured
Home secures a Land-and-Home Contract, such Manufactured Home is subject to
a Mortgage properly filed in the appropriate public recording office or
such Mortgage will be properly filed in the appropriate public recording
office within 180 days, naming the Company as mortgagee. In either case,
the Trustee has the same rights as the secured party of record would have
(if such secured party were still the owner of the Contract) against all
Persons (including the Company and any trustee in bankruptcy of the
Company) claiming an interest in such Manufactured Home.
w. Secondary Mortgage Market Enhancement Act. The related
-----------------------------------------
Manufactured Home is a "manufactured home" within the meaning of 42 United
States Code, Section
3-5
5402(6). Each manufactured housing dealer from whom the Company purchased
such Contract, if any, was then approved by the Company in accordance with
the requirements of the Secretary of Housing and Urban Development set
forth in 24 CFR (S) 201.27. At the origination of each Contract, the
Company was approved for insurance by the Secretary of Housing and Urban
Development pursuant to Section 2 of the National Housing Act.
x. Qualified Mortgage. The Contract represents a "qualified
------------------
mortgage" within the meaning of Section 860G(a)(3) of the Code. The Company
represents and warrants that, either as of the date of origination or the
Closing Date, the fair market value of the property securing each Contract
was not less than 80% of the "adjusted issue price" (within the meaning of
the REMIC Provisions) of such Contract.
SECTION 3.03. Representations and Warranties Regarding the Contracts in
---------------------------------------------------------
the Aggregate.
-------------
The Company represents and warrants to the Trustee and the
Certificateholders, as of the Closing Date with respect to the Initial and
Additional Contracts, and as of each Subsequent Transfer Date with respect to
the related Subsequent Contracts, that:
a. Amounts. The aggregate principal amounts payable by Obligors
-------
under the Contracts (assuming all Staged-Funding Contracts were fully
disbursed) as of the Cut-off Date equal the Cut-off Date Pool Principal
Balance. The aggregate principal amounts payable by Obligors under the
Initial Contracts (assuming all Staged-Funding Contracts included among the
Initial Contracts were fully disbursed) as of the Cut-off Date equal
$647,819,239.32. The aggregate principal amounts payable by Obligors under
the Additional Contracts (assuming all Staged-Funding Contracts included
among the Additional Contracts were fully disbursed) as of the Cut-off Date
equal $152,180,745.44.
b. Characteristics of Initial and Additional Contracts. The Initial
---------------------------------------------------
and Additional Contracts have the following characteristics as of the Cut-
off Date:
(i) the Obligors on not more than 10% of the Initial Contracts
by Cut-off Rate Principal Balance are located in any one state, except
North Carolina, which represents approximately 12.00% of the Cut-off Date
Principal Balance of the Initial Contracts, the Obligors on not more than
10% of the Initial and Additional Contracts by Cut-off Date Pool Principal
Balance are located in any one state, the Obligors on not more than 5% of
the Contracts by Cut-off Date Pool Principal Balance are located in an area
with the same zip code and the Obligors on not more than 1% of the
Contracts by Cut-off Date Pool Principal Balance are located in California
in an area with the same zip code;
(ii) no Initial or Additional Contract has a remaining maturity
of fewer than 19 months or more than 360 months;
(iii) the final scheduled payment date on the Initial or
Additional Contract with the latest maturity is in December 2029.
3-6
(iv) approximately 77% of the Initial Contracts and 76% of the
Initial and Additional Contracts, by aggregate Cut-off Date Principal
Balance, is attributable to loans for purchases of new Manufactured
Homes and approximately 23% and 24%, respectively, is attributable to
loans for purchases of used Manufactured Homes;
(v) no less than 29% of the Initial and Additional Contracts
by Cut-off Date Pool Principal Balance is attributable to Land-and-
Home Contracts;
(vi) the Weighted Average Contract Rate of the Initial and
Additional Contracts as of the Cut-off Date is at least 9.41% per
annum;
(vii) at least 70% of the Initial and Additional Contracts by
Cut-off Date Pool Principal Balance is attributable to loans for the
purchase of multi-section Manufactured Homes;
(viii) the weighted average (by Cut-off Date Pool Principal
Balance) loan to value ratio of the Initial and Additional Contracts
is not more than 89%;
(ix) no Initial or Additional Contract was originated before
March 1985; and
(x) not more than 29% of the Initial and Additional Contracts
by Cut-off Date Pool Principal Balance are secured by Manufactured
Homes located in a mobile home park.
c. Characteristics of All Contracts. The Contracts have the following
--------------------------------
characteristics as of the end of the Pre-Funding Period:
(i) the Weighted Average Contract Rate is not less than 9.41%,
and not more than .02% of the Cut-off Date Pool Principal Balance is
attributable to Contracts with a Contract Rate of less than 4.25%;
(ii) the weighted average (by Cut-off Date Pool Principal
Balance) Loan-to-Value Ratio of the Contracts is not more than 89%;
(iii) not less than 76% of the Cut-off Date Pool Principal Balance
is attributable to loans for purchases of new Manufactured Homes;
(iv) not more than 70% of the Cut-off Date Pool Principal Balance
is attributable to loans for the purchase of single-section
Manufactured Homes, and not less than 30% of the Cut-off Date Pool
Principal Balance is attributable to loans for the purchase of double-
section Manufactured Homes;
3-7
(v) not less than 29% of the Cut-off Date Pool Principal Balance
is attributable to Land-and-Home Contracts; and
(vi) not more than 29% of the Cut-off Date Pool Principal Balance
is attributable to loans secured by Manufactured Homes located in
parks.
d. Staged-Funding Contracts. Approximately $71,691,975.98 of the
------------------------
Initial and Additional Contracts, by Cut-off Date Principal Balance, are
Staged-Funding Contracts that had not been fully disbursed by the Cut-off
Date. Approximately $62,697,939.93 of such amount has been disbursed by the
Closing Date, and approximately $8,994,036.05 remains to be disbursed on or
before the Funding Termination Date.
e. Computer Tape. The Computer Tape made available by the Company
-------------
was complete and accurate as of its date and includes a description of the
same Contracts that are described in the List of Contracts.
f. Marking Records. By the Closing Date or Subsequent Transfer Date,
---------------
as applicable, the Company has caused the portions of the Electronic Ledger
relating to the Contracts to be clearly and unambiguously marked to indicate
that such Contracts constitute part of the Trust and are owned by the Trust in
accordance with the terms of the trust created hereunder.
g. No Adverse Selection. Except for the effect of the
--------------------
representations and warranties made in Sections 3.02 and 3.03 hereof, no
adverse selection procedures have been employed in selecting the Contracts.
SECTION 3.04. Representations and Warranties Regarding the Contract
-----------------------------------------------------
Files.
-----
The Company represents and warrants to the Trustee and the
Certificateholders, as of the Closing Date with respect to the Initial and
Additional Contracts, and as of each Subsequent Transfer Date with respect to
the related Subsequent Contracts, that:
a. Possession. Immediately prior to the Closing Date or the
----------
Subsequent Transfer Date, as applicable, the Company will have possession
of each original Contract and the related Contract File or Land-and-Home
Contract File and there are and there will be no custodial agreements in
effect materially and adversely affecting the rights of the Company to
make, or cause to be made, any delivery required hereunder.
b. Bulk Transfer Laws. The transfer, assignment and conveyance of
------------------
the Contracts and the Contract Files and Land-and-Home Contract Files by
the Company pursuant to this Agreement is not subject to the bulk transfer
or any similar statutory provisions in effect in any applicable
jurisdiction.
3-8
SECTION 3.05. Repurchase of Contracts or Substitution of Contracts for
--------------------------------------------------------
Breach of Representations and Warranties.
----------------------------------------
a. The Company shall repurchase a Contract, at its Repurchase Price, not
later than the last day of the month prior to the month that is 90 days after
the day on which the Company, the Servicer or the Trustee first discovers or
should have discovered a breach of a representation or warranty of the Company
set forth in Sections 2.02(n), 3.02, 3.03 or 3.04 of this Agreement that
materially adversely affects the Trust's or the Certificateholders' interest in
such Contract and which breach has not been cured; provided, however, that (i)
in the event that a party other than the Company first becomes aware of such
breach, such discovering party shall notify the Company in writing within five
Business Days of the date of such discovery and (ii) with respect to any
Contract incorrectly described on the List of Contracts with respect to unpaid
principal balance, which the Company would otherwise be required to repurchase
pursuant to this Section, the Company may, in lieu of repurchasing such
Contract, deposit in the Certificate Account no later than the first
Determination Date that is 90 or more days from the date of such discovery cash
in an amount sufficient to cure such deficiency or discrepancy. Any such cash so
deposited shall be distributed to Certificateholders on the immediately
following Remittance Date as a collection of principal or interest on such
Contract, according to the nature of the deficiency or discrepancy.
Notwithstanding any other provision of this Agreement, the obligation of the
Company under this Section shall not terminate upon a Service Transfer pursuant
to Article VII. Notwithstanding the foregoing, the Company shall repurchase any
Land-and-Home Contract, at such Contract's Repurchase Price, or substitute for
it an Eligible Substitute Contract as described in Section 3.05(b), if the
Company has failed to deliver the related Land-and-Home Contract File to the
Trustee within 30 days of the Closing Date.
b. On or prior to the date that is the second anniversary of the Closing
Date, the Company, at its election, may substitute one or more Eligible
Substitute Contracts for any Contracts that the Company is obligated to
repurchase pursuant to Section 3.05(a) (such Contracts being referred to as the
"Replaced Contracts") upon satisfaction of the following conditions:
(i) the Company shall have conveyed to the Trustee the Contracts to be
substituted for the Replaced Contracts and the Contract Files related
to such Contracts and the Company shall have marked the Electronic
Ledger indicating that such Contracts constitute part of the Trust;
(ii) the Contracts to be substituted for the Replaced Contracts are
Eligible Substitute Contracts and the Company delivers an Officers'
Certificate, substantially in the form of Exhibit L-2 hereto, to the
Trustee certifying that such Contracts are Eligible Substitute
Contracts;
(iii) the Company shall have delivered to the Trustee evidence of filing of
a UCC-1 financing statement executed by the Company as debtor, naming
the Trustee as secured party and filed in Minnesota, listing such
Contracts as collateral, or shall have delivered to the Trustee an
amended List of Contracts;
3-9
(iv) in respect of Eligible Substitute Contracts that are Land-and-Home
Contracts:
(x) the Company shall have delivered to the Trustee, or its
Custodian, the related Land-and-Home Contract Files; and
(y) if the sum of the aggregate principal balances of all Land-and-
Home Contracts then held by the Trustee (but excluding those
Land-and-Home Contracts, if any, that are to become Replaced
Contracts as a consequence of the substitution) and the aggregate
principal balances of all Land-and-Home Contracts that are
included in the Eligible Substitute Contracts equals or exceeds
10% of the Pool Scheduled Principal Balance as of the Remittance
Date immediately preceding the substitution, the Company shall
have delivered to the Trustee an opinion of counsel satisfactory
to the Trustee to the effect that the Trustee holds a perfected
first priority lien in the real estate securing such Eligible
Substitute Contracts, or evidence of recordation of the
assignment to the Trustee on behalf of the Trust of (A) each
Mortgage securing such Eligible Contracts or, if less (B) of the
number of Mortgages securing such Eligible Substitute Contracts
needed to reduce the aggregate principal balances of all Land-
and-Home Contracts with respect to which such assignments are not
so recorded to less than 10% of the Pool Scheduled Principal
Balance as of the Remittance Date immediately preceding the
substitution;
(v) the Company shall have delivered to the Trustee an Opinion of Counsel
(a) to the effect that the substitution of such Contracts for such
Replaced Contracts will not cause the Trust to fail to qualify as a
REMIC at any time under then applicable REMIC Provisions or cause any
"prohibited transaction" that will result in the imposition of a tax
under such REMIC Provisions and (b) to the effect of paragraph 9 of
Exhibit F hereto; and
(vi) if the aggregate Scheduled Principal Balance of such Replaced
Contracts is greater than the aggregate Scheduled Principal Balance of
the Contracts being substituted, the Company shall have deposited in
the Certificate Account the amount of such excess and shall have
included in the Officers' Certificate required by clause (ii) above a
certification that such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such Contracts
to, and delete such Replaced Contracts from, the List of Contracts. Such
substitution shall be effected prior to the first Determination Date that occurs
more than 90 days after the Company becomes aware, or should have become aware,
or receives written notice from the Trustee, of the breach referred to in
Section 3.05(a). Promptly after any substitution of a Contract, the Company
shall give written notice of such substitution to the Rating Agencies.
3-10
c. (i) On or before the Funding Termination Date, the Company shall
deliver an Officer's Certificate to the Trustee, stating that each Staged-
Funding Contract was fully disbursed in accordance with the terms of such
Contract on or before the Funding Termination Date, or specifying any Staged-
Funding Contracts which were not fully disbursed by the Funding Termination Date
(each Staged-Funding Contract that was not so fully disbursed being hereinafter
referred to as an "Unfunded Contract"), and the Cut-off Date Principal Balance
of each Unfunded Contract.
(ii) On or before the Funding Termination Date, the Company shall
either repurchase any Unfunded Contract in accordance with Section 3.05(a) (or
the unfunded portion thereof, by depositing in the Certificate Account any
undisbursed amount with respect to such Unfunded Contract), or shall substitute
an Eligible Substitute Contract for such Unfunded Contract in accordance with
Section 3.05(b). With respect to the repurchase of an Unfunded Contract
pursuant to this Section 3.05(c), an amount of the Repurchase Price equal to the
Unfunded Contract Shortfall attributable to such Unfunded Contract shall be
treated as a refund to the Trust of the purchase price paid by the Trust for
additional obligations of the Obligor on such Contract under Section 2.01(c),
and the remainder of the Repurchase Price shall be treated as paid to the Trust
for such Unfunded Contract.
(iii) If the Company shall have failed to repurchase an Unfunded
Contract (or the unfunded portion thereof, by depositing in the Certificate
Account any undisbursed amount with respect to such Unfunded Contract) or to
substitute an Eligible Substitute Contract therefor in accordance with
subsection (ii) above, then the disbursed principal balance of such Unfunded
Contract as owned by the Trust shall not be increased after the Funding
Termination Date, notwithstanding any further disbursements that may be made to
the related Obligor by the Company after the Funding Termination Date. The
Servicer shall thereafter allocate principal and interest collected on the
Contract between the Trust and the Company on a pro rata basis in accordance
with the disbursed principal balance as of the Funding Termination Date, with
the result that payments of interest and principal collected with respect to
such disbursed principal balance as of the Funding Termination Date shall be
deemed collected by the Trust. The aggregate differential between the Cut-off
Date Principal Balance of all such Unfunded Contracts as specified in the List
of Contracts and the disbursed principal balance of such Unfunded Contracts as
of the Funding Termination Date (the "Unfunded Contract Shortfall") shall be
added to the Formula Principal Distribution Amount with respect to the
Remittance Date in August 1999.
(iv) On the Business Day prior to each Remittance Date until and
including the Remittance Date in August 1999, the Company shall pay any Class A
Interest Shortfall, Class M-1 Interest Shortfall, Class M-2 Interest Shortfall
or Class B-1 Interest Shortfall occurring on such Remittance Date, if and to the
extent such shortfall is caused by the difference between (A) the interest that
would have been payable on all Staged-Funding Contracts in the related month had
such Contracts been fully disbursed on the Closing Date and (B) the interest
actually payable on such Contracts in the related month according to the terms
of such Contracts.
3-11
(v) To further evidence its obligation to repurchase Unfunded
Contracts pursuant to subsection (ii) above and to deposit any Class A Interest
Shortfall, Class M-1 Interest Shortfall, Class M-2 Interest Shortfall and Class
B-1 Interest Shortfall pursuant to subsection (iv) above, the Company shall
deliver to the Trustee, on the Closing Date, a demand note in an amount no less
than the aggregate Cut-off Date Principal Balances of the Staged-Funding
Contracts. After the Funding Termination Date or such earlier date on which the
Company either has fully disbursed or repurchased each Staged-Funding Contract
as required herein, the Trustee shall return such demand note to the Company for
cancellation and/or destruction.
d. Upon receipt by the Trust by deposit in the Certificate Account of the
Repurchase Price under subsection (a) or (c) above, or the delivery of an
Eligible Substitute Contract pursuant to subsection (b) or (c) above, and upon
receipt of a certificate of a Servicing Officer in the form attached hereto as
Exhibit L-1 or L-2, the Trustee shall convey and assign to the Company all of
the Trust's right, title and interest in the repurchased Contract or Replaced
Contract without recourse, representation or warranty, except as to the absence
of liens, charges or encumbrances created by or arising as a result of actions
of the Trustee.
e. The Company shall defend and indemnify the Trustee and the
Certificateholders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, arising out of
any claims which may be asserted against or incurred by any of them as a result
of any third-party action arising out of any breach of any such representation
and warranty.
SECTION 3.06. No Repurchase or Substitution Under Certain Circumstances.
---------------------------------------------------------
Notwithstanding any provision of this Agreement to the contrary, no
repurchase or substitution pursuant to Section 3.05 (other than a repurchase or
substitution pursuant to Section 3.05(c)) shall be made unless the Company
obtains for the Trustee an Opinion of Counsel addressed to the Trustee that any
such repurchase or substitution would not, under the REMIC Provisions, (i) cause
the Subsidiary REMIC or the Master REMIC to fail to qualify as a REMIC while any
regular interest in the Subsidiary REMIC or the Master REMIC, respectively, is
outstanding, (ii) result in a tax on prohibited transactions within the meaning
of Section 860F(a)(2) of the Code or (iii) constitute a contribution after the
startup day subject to tax under Section 860G(d) of the Code. The Servicer
shall attempt to obtain such Opinion of Counsel. In the case of a repurchase or
deposit pursuant to Section 3.05(a) or 3.05(c), the Company shall,
notwithstanding the absence of such opinion as to the imposition of any tax as
the result of such purchase or deposit, repurchase such Contract or make such
deposit and shall guarantee the payment of such tax by paying to the Trustee the
amount of such tax not later than five Business Days before such tax shall be
due and payable to the extent that amounts previously paid over to and then held
by the Trustee pursuant to Section 6.06 hereof are insufficient to pay such tax
and all other taxes chargeable under Section 6.06. Pursuant to Section 6.06, the
Servicer is hereby directed to withhold, and shall withhold and pay over to the
Trustee, an amount sufficient to pay such tax and any other taxes imposed on
"prohibited transactions" under Section 860F(a)(1) of the Code or imposed on
"contributions after start up date" under Section 860G(d) of the Code from
amounts otherwise distributable to Class C Subsidiary
3-12
Certificateholders. The Servicer shall give notice to the Trustee at the time of
such repurchase of the amounts due from the Company pursuant to the guarantee of
the Company described above and notice as to who should receive such payment.
The Trustee shall have no obligation to pay any such amounts pursuant to
this Section other than from moneys provided to it by the Company or from moneys
held in the funds and accounts created under this Agreement. The Trustee shall
be deemed conclusively to have complied with this Section if it follows the
directions of the Company.
In the event any tax that is guaranteed by the Company pursuant to this
Section 3.06 is refunded to the Trust or otherwise is determined not to be
payable, the Company shall be repaid the amount of such refund or that portion
of any guarantee payment made by the Company that is not applied to the payment
of such tax.
SECTION 3.07. Staged-Funding Contract Reserve Account.
---------------------------------------
a. Within one Business Day after any date prior to the Funding
Termination Date on which the Company's long-term debt securities are rated BB+
or lower by Standard & Poor's and BB+ or lower by Fitch (the "Ratings Adjustment
Date"), the Company shall give written and telephonic notice thereof to the
Trustee and shall deposit with the Trustee an amount equal to the unfunded
portion of the Contracts that were Unfunded Contracts on the Ratings Adjustment
Date. Upon receipt of such notice the Trustee shall establish the Staged-Funding
Contract Reserve Account on behalf of the Trust, which must be an Eligible
Account, and shall deposit therein the amount received from the Company pursuant
to the previous sentence. The Account shall be entitled "U.S. Bank National
Association, as Trustee for the benefit of holders of Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificates, Series 1999-3."
b. If the Company fails to satisfy its obligations under Section
3.05(c)(ii) hereof the Trustee shall withdraw from the Staged-Funding Contract
Reserve Account that amount necessary to satisfy the Company's obligations under
Section 3.05(c)(ii), and shall apply said funds in the fashion provided in the
second sentence in Section 3.05(c)(ii). Any amount so applied shall be treated
for all purposes under this Agreement as an amount paid by the Company to
repurchase Contracts under Section 3.05(c).
c. The Staged-Funding Contract Reserve Account shall be part of the Trust
but not part of the Subsidiary REMIC or Master REMIC. The Trustee on behalf of
the Trust shall be the legal owner of the Staged-Funding Contract Reserve
Account. The Company shall be the beneficial owner of the Staged-Funding
Contract Reserve Account, subject to the foregoing power of the Trustee to apply
amounts in the Staged-Funding Contract Reserve Account to satisfy the
obligations of the Company under Section 3.05(c)(ii). Funds in the Staged-
Funding Contract Reserve Account shall, at the direction of the Company, be
invested in Eligible Investments that mature no later than the Funding
Termination Date. All net income and gain from such investments shall be
distributed to the Company on the Funding Termination Date. Any losses on such
investments shall be deposited in the Staged-Funding Contract Reserve Account by
the Company out of its own funds
3-13
immediately as realized. All amounts earned on amounts on deposit in the Staged-
Funding Contract Reserve Account shall be taxable to the Company.
d. Any funds remaining in the Staged-Funding Contract Reserve Account
after the Funding Termination Date shall be distributed to the Company.
3-14
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
-----------------------------------------------------------
SECTION 4.01. Custody of Contracts.
--------------------
a. Subject to the terms and conditions of this Section the Trustee
appoints the Servicer to maintain custody of the Contract Files for the benefit
of the Certificateholders and the Trustee. The Custodian shall maintain custody
of the Land-and-Home Contract Files. In the event that the Trustee is no longer
acting as Custodian of the Land-and-Home Contract Files, upon execution and
delivery of an agreement between the Trustee and the Person assuming the duties
of the Trustee hereunder as Custodian with respect to the Land-and-Home Contract
Files, the replacement Custodian shall concurrently execute an acknowledgment of
receipt of the Land-and-Home Contract Files substantially in the form of Exhibit
H hereto.
b. The Servicer agrees to maintain the related Contract Files at its
office where they are currently maintained, or at such other offices of the
Servicer in the State of Minnesota as shall from time to time be identified to
the Trustee by written notice. The Servicer may temporarily move individual
Contract Files or any portion thereof without notice as necessary to conduct
collection and other servicing activities in accordance with its customary
practices and procedures.
c. As custodian, the Servicer shall have and perform the following
powers and duties:
(i) hold the Contract Files on behalf of the Certificateholders and the
Trustee, maintain accurate records pertaining to each Contract to
enable it to comply with the terms and conditions of this Agreement,
maintain a current inventory thereof, conduct annual physical
inspections of Contract Files held by it under this Agreement and
certify to the Trustee annually that it continues to maintain
possession of such Contract Files;
(ii) implement policies and procedures, in writing and signed by a
Servicing Officer, with respect to persons authorized to have access
to the Contract Files on the Servicer's premises and the receipting
for Contract Files taken from their storage area by an employee of
the Servicer for purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining custody of the
Contract Files on behalf of the Certificateholders and the Trustee.
d. In performing its duties under this Section, the Servicer agrees to
act with reasonable care, using that degree of skill and care that it exercises
with respect to similar contracts owned and/or serviced by it. The Servicer
shall promptly report to the Trustee any failure by it to hold the Contract
Files as herein provided and shall promptly take appropriate action to remedy
any such failure. In acting as custodian of the Contract Files, the Servicer
agrees further not to assert any beneficial ownership interests in the Contracts
or the Contract Files. The Servicer agrees to indemnify the Certificateholders
and the Trustee for any and all liabilities, obligations, losses,
4-1
damages, payments, costs or expenses of any kind whatsoever which may be imposed
on, incurred or asserted against the Certificateholders and the Trustee as the
result of any act or omission by the Servicer relating to the maintenance and
custody of the Contract Files; provided, however, that the Servicer will not be
liable for any portion of any such amount resulting from the negligence or
willful misconduct of any Certificateholder or the Trustee.
SECTION 4.02. Filings.
-------
On or prior to the Closing Date, the Company shall cause the UCC-1
financing statement referred to in Section 2.02(h) to be filed. The Trustee
shall cause to be filed all necessary continuation statements of the UCC-1
financing statement. From time to time the Servicer shall take and cause to be
taken such actions and execute such documents as are necessary to perfect and
protect the Certificateholders' interest in the Contracts and their proceeds and
the Manufactured Homes against all other persons, including, without limitation,
the filing of financing statements, amendments thereto and continuation
statements, the execution of transfer instruments and the making of notations on
or taking possession of all records or documents of title. The Servicer will
maintain the Trustee's first priority perfected security interest in each
Manufactured Home and a first lien on each Mortgaged Property so long as the
related Contract is property of the Trust.
SECTION 4.03. Name Change or Relocation.
-------------------------
a. During the term of this Agreement, the Company shall not change its
name, identity or structure or relocate its chief executive office without first
giving notice thereof to the Trustee and the Servicer. In addition, following
any such change in the name, identity, structure or location of the chief
executive office of the Company, the Company shall given written notice of any
such change to the Rating Agencies.
b. If any change in the Company's name, identity or structure or the
relocation of its chief executive office would make any financing or
continuation statement or notice of lien filed under this Agreement seriously
misleading within the meaning of applicable provisions of the UCC or any title
statute or would cause any such financing or continuation statement or notice of
lien to become unperfected (whether immediately or with lapse of time), the
Company, no later than five days after the effective date of such change, shall
file, or cause to be filed, such amendments or financing statements as may be
required to preserve, perfect and protect the Certificateholders' interest in
the Contracts and proceeds thereof and in the Manufactured Homes.
SECTION 4.04. Chief Executive Office.
----------------------
During the term of this Agreement, the Company will maintain its chief
executive office in one of the States of the United States, except Tennessee.
4-2
SECTION 4.05. Costs and Expenses.
------------------
The Servicer agrees to pay all reasonable costs and disbursements in
connection with the perfection and the maintenance of perfection, as against all
third parties, of the Certificateholders' right, title and interest in and to
the Contracts (including, without limitation, the security interests in the
Manufactured Homes granted thereby).
4-3
ARTICLE V
SERVICING OF CONTRACTS
----------------------
SECTION 5.01. Responsibility for Contract Administration.
------------------------------------------
The Servicer will have the sole obligation to manage, administer, service
and make collections on the Contracts and perform or cause to be performed all
contractual and customary undertakings of the holder of the Contracts to the
Obligor. The Company, if it is the Servicer, may delegate some or all of its
servicing duties to a wholly owned subsidiary of the Company, for so long as
such subsidiary remains, directly or indirectly, a wholly owned subsidiary of
the Company. Notwithstanding any such delegation the Company shall retain all of
the rights and obligations of the Servicer hereunder. The Trustee, at the
request of a Servicing Officer, shall furnish the Servicer with any powers of
attorney or other documents necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder. The Company is
hereby appointed the Servicer until such time as any Service Transfer shall be
effected under Article VII.
SECTION 5.02. Standard of Care.
----------------
In managing, administering, servicing and making collections on the
Contracts pursuant to this Agreement, the Servicer will exercise that degree of
skill and care consistent with the highest degree of skill and care that the
Servicer exercises with respect to similar contracts serviced by the Servicer;
provided, however, that (i) such degree of skill and care shall be at least as
favorable as the degree of skill and care generally applied by servicers of
manufactured housing installment sales contracts for institutional investors and
(ii) notwithstanding the foregoing, the Servicer shall not release or waive the
right to collect the unpaid balance on any Contract. The Servicer shall comply
with FHA/VA Regulations in servicing any FHA/VA Contracts (and will pay any
required premiums) so that the related insurance of the Federal Housing
Administration or partial guarantee of the Veterans Administration remains in
full force and effect, except for good faith disputes relating to FHA/VA
Regulations that will not cause the termination or reduction of such insurance
or guarantee.
SECTION 5.03. Records.
-------
The Servicer shall, during the period it is servicer hereunder, maintain
such books of account and other records as will enable the Trustee to determine
the status of each Contract.
SECTION 5.04. Inspection; Computer Tape.
-------------------------
a. At all times during the term hereof, the Servicer shall afford the
Trustee and its authorized agents reasonable access during normal business hours
to the Servicer's records, which have not previously been provided to the Trust,
relating to the Contracts and will cause its personnel to assist in any
examination of such records by the Trustee or its authorized agents. The
examination referred to in this Section will be conducted in a manner which does
not unreasonably interfere with
5-1
the Servicer's normal operations or customer or employee relations. Without
otherwise limiting the scope of the examination the Trustee may make, the
Trustee may, using generally accepted audit procedures, verify the status of
each Contract and review the Electronic Ledger and records relating thereto for
conformity to Monthly Reports prepared pursuant to Article VI and compliance
with the standards represented to exist as to each Contract in this Agreement.
b. At all times during the term hereof, the Servicer shall keep available
a copy of the List of Contracts at its principal executive office for inspection
by Certificateholders.
c. On or before the ninth Business Day of each related Due Period, the
Servicer will provide to the Trustee a Computer Tape setting forth a list of all
the outstanding Contracts and the outstanding principal balance of each such
Contract as of the end of the next related Due Period.
SECTION 5.05. Certificate Account.
-------------------
a. On or before the Closing Date, the Trustee shall establish the
Certificate Account on behalf of the Trust, which must be an Eligible Account.
The Certificate Account shall be entitled "[Trustee] as Trustee for the benefit
of holders of Manufactured Housing Contract Pass-Through Certificates, Series
1999-3 (Green Tree Financial Corporation, Servicer)." The Servicer shall pay
into the Certificate Account as promptly as practicable (not later than the next
Business Day) following receipt thereof all payments from Obligors and Net
Liquidation Proceeds, other than late payment penalty fees, extension fees and
assumption fees, which shall be retained by the Servicer as additional
compensation for servicing the Contracts. All amounts paid into the Certificate
Account under this Agreement shall be held in trust for the Trustee and the
Certificateholders until payment of any such amounts is authorized under this
Agreement. Only the Trustee may withdraw funds from the Certificate Account.
b. If the Servicer so directs, the institution maintaining the
Certificate Account shall, in the name of the Trustee in its capacity as such,
invest the amounts in the Certificate Account in Eligible Investments that
mature not later than one Business Day prior to the next succeeding Remittance
Date. Once such funds are invested, such institution shall not change the
investment of such funds. All income and gain from such investments shall be
added to the Certificate Account and distributed on such Remittance Date
pursuant to Section 8.03(a). An amount equal to any net loss on such
investments shall be deposited in the Certificate Account by the Class C
Subsidiary Certificateholder out of its own funds immediately as realized. The
Company, the Servicer and the Trustee shall in no way be liable for losses on
amounts invested in accordance with the provisions hereof. Funds in the
Certificate Account not so invested must be insured to the extent permitted by
law by the Federal Deposit Insurance Corporation. "Eligible Investments" are
any of the following:
(i) direct obligations of, and obligations fully guaranteed by, the United
States of America, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association, or any agency or
instrumentality of the United States of America the obligations of
which are backed by the full faith and credit of the United States of
America and which are noncallable;
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(ii) (A) demand and time deposits in, certificates of deposit of, bankers'
acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Trustee or any Affiliate
of the Trustee, acting in its commercial capacity) incorporated under
the laws of the United States of America or any State thereof and
subject to supervision and examination by federal and/or state
authorities, so long as, at the time of such investment or
contractual commitment providing for such investment, the commercial
paper or other short-term deposits of such depository institution or
trust company (or, in the case of a depository institution which is
the principal subsidiary of a holding company, the commercial paper
or other short-term debt obligations of such holding company) are
rated at least P-1 by ▇▇▇▇▇'▇, at least A-1 by Standard & Poor's and
at least F-1 by Fitch (if rated by Fitch) and (B) any other demand or
time deposit or certificate of deposit which is fully insured by the
Federal Deposit Insurance Corporation;
(iii) shares of an investment company registered under the Investment
Company Act of 1940, whose shares are registered under the Securities
Act of 1933 and have the highest credit rating then available from
▇▇▇▇▇'▇ and Fitch (if rated by Fitch) and are rated AAAm or AAAm-G by
Standard & Poor's and whose only investments are in securities
described in clauses (i), (ii) above and (iv) below;
(iv) repurchase obligations with respect to (A) any security described in
clause (i) above or (B) any other security issued or guaranteed by an
agency or instrumentality of the United States of America, in either
case entered into with a depository institution or trust company
(acting as principal) described in clause (ii)(A) above;
(v) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of
America or any State thereof which have a credit rating of at least
Aa2 from ▇▇▇▇▇'▇, at least AAA by Standard & Poor's and in one of the
two highest rating categories from Fitch (if rated by Fitch) at the
time of such investment; provided, however, that securities issued by
any particular corporation will not be Eligible Investments to the
extent that investment therein will cause the then outstanding
principal amount of securities issued by such corporation and held as
part of the corpus of the Trust to exceed 10% of amounts held in the
Certificate Account; and
(vi) commercial paper having a rating of at least A-1+ from Standard &
Poor's and at least P-1 from ▇▇▇▇▇'▇ (if rated by ▇▇▇▇▇'▇) at the
time of such investment or pledge as a security; and
(vii) other obligations or securities that are acceptable to both Rating
Agencies as an Eligible Investment hereunder and will not reduce the
rating assigned to any Class of Certificates by either of the Rating
Agencies below the lower of the then-current rating or the rating
assigned to such Certificates as of the Closing Date by both Rating
Agencies, as evidenced in writing;
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provided that any such investment must constitute a "cash flow investment"
within the meaning of the REMIC Provisions.
Notwithstanding the foregoing, securities that represent the right to receive
payments only of interest due on underlying obligations shall not be included as
Eligible Investments, whether or not such securities otherwise fall within (i)
through (vi) above.
The Trustee may trade with itself or an Affiliate in the purchase or sale
of such Eligible Investments.
c. If at any time the Trustee receives notice (from either of the Rating
Agencies, the Servicer or otherwise) that the Certificate Account has ceased to
be an Eligible Account, the Trustee must, as soon as practicable but in no event
later than 5 Business Days of the Trustee's receipt of such notice, transfer the
Certificate Account and all funds and Eligible Investments therein to an
Eligible Account. Following any such transfer, the Trustee must notify each of
the Rating Agencies and the Servicer of the location of the Certificate Account.
SECTION 5.06. Enforcement.
-----------
a. The Servicer shall, consistent with customary servicing procedures and
the terms of this Agreement, act with respect to the Contracts in such manner as
will maximize the receipt of principal and interest on such Contracts and
Liquidation Proceeds with respect to Liquidated Contracts.
b. The Servicer may sue to enforce or collect upon Contracts, in its own
name, if possible, or as agent for the Trust. If the Servicer elects to
commence a legal proceeding to enforce a Contract, the act of commencement shall
be deemed to be an automatic assignment of the Contract to the Servicer for
purposes of collection only. If, however, in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Contract on the ground
that it is not a real party in interest or a holder entitled to enforce the
Contract, the Trustee on behalf of the Trust shall, at the Servicer's expense,
take such steps as the Servicer deems necessary to enforce the Contract,
including bringing suit in its name or the names of the Certificateholders.
c. The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Contract in accordance with the
Servicer's usual practice. In exercising recourse rights, the Servicer is
authorized on the Trustee's behalf to reassign the Contract or to resell the
related Manufactured Home to the person against whom recourse exists at the
price set forth in the document creating the recourse.
d. So long as the Company is the Servicer, the Servicer may grant to the
Obligor on any Contract any rebate, refund or adjustment out of the Certificate
Account that the Servicer in good faith believes is required because of
prepayment in full of the Contract. The Servicer will not permit any rescission
or cancellation of any Contract.
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e. So long as the Company is the Servicer, the Servicer may, consistent
with its customary servicing procedures and consistent with Section 5.02, grant
to the Obligor on any Contract an extension of payments due under such Contract,
provided that Obligors may not be solicited for extensions, no such extension
may extend beyond December, 2028, and no more than one extension of payments
under a Contract may be granted in any twelve-month period.
f. The Servicer may enforce any due-on-sale clause in a Contract if such
enforcement is called for under its then current servicing policies for
obligations similar to the Contracts, provided that such enforcement is
permitted by applicable law and will not adversely affect any applicable
insurance policy. If an assumption of a Contract is permitted by the Servicer
upon conveyance of the related Manufactured Home, the Servicer shall use its
best efforts to obtain an assumption agreement in connection therewith and add
such assumption agreement to the related Contract File or Land-and-Home Contract
File.
g. Any provision of this Agreement to the contrary notwithstanding, the
Servicer shall not agree to the modification or waiver of any provision of a
Contract if such modification or waiver would be treated as a taxable exchange
under the REMIC Provisions.
SECTION 5.07. Trustee to Cooperate.
--------------------
a. Upon payment in full on any Contract, the Servicer will notify the
Trustee and the Company (if the Company is not the Servicer) on the next
succeeding Remittance Date by certification of a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payments which are required to be deposited in the
Certificate Account pursuant to Section 5.05 have been so deposited). The
Servicer is authorized to execute an instrument in satisfaction of such Contract
and to do such other acts and execute such other documents as the Servicer deems
necessary to discharge the Obligor thereunder and eliminate the lien on the
related real estate. The Servicer shall determine when a Contract has been paid
in full; to the extent that insufficient payments are received on a Contract
credited by the Servicer as prepaid or paid in full and satisfied, the shortfall
shall be paid by the Servicer out of its own funds.
b. From time to time as appropriate for servicing and foreclosure in
connection with any Land-and-Home Contract, the Trustee shall, upon written
request of a Servicing Officer and delivery to the Trustee of a receipt signed
by such Servicing Officer, cause the original Land-and-Home Contract and the
related Land-and-Home Contract File to be released to the Servicer and shall
execute such documents as the Servicer shall deem necessary to the prosecution
of any such proceedings. The Trustee shall stamp the face of each such Land-
and-Home Contract to be released to the Servicer with a notation that the Land-
and-Home Contract has been assigned to the Trustee. Upon request of a Servicing
Officer, the Trustee shall perform such other acts as reasonably requested by
the Servicer and otherwise cooperate with the Servicer in enforcement of the
Certificateholders' and Class C Certificateholders' rights and remedies with
respect to Contracts.
c. The Servicer's receipt of a Land-and-Home Contract and/or Land-and-
Home Contract File shall obligate the Servicer to return the original Land-and-
Home Contract and the related Land-
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and-Home Contract File to the Trustee when its need by the Servicer has ceased
unless the Contract shall be liquidated or repurchased or replaced as described
in Section 3.05.
SECTION 5.08. Costs and Expenses.
------------------
All costs and expenses incurred by the Servicer in carrying out its duties
hereunder, including all fees and expenses incurred in connection with the
enforcement of Contracts (including enforcement of defaulted Contracts and
repossessions of Manufactured Homes securing such Contracts) shall be paid by
the Servicer and the Servicer shall not be entitled to reimbursement hereunder,
except that the Servicer shall be reimbursed out of the Liquidation Proceeds of
a Liquidated Contract for Liquidation Expenses incurred by it. The Servicer
shall not incur such Liquidation Expenses unless it determines in its good faith
business judgment that incurring such expenses will increase the Net Liquidation
Proceeds on the related Contract.
SECTION 5.09. Maintenance of Insurance.
------------------------
a. Except as otherwise provided in subsection (b) of this Section 5.09,
the Servicer shall cause to be maintained with respect to each Contract one or
more Hazard Insurance Policies which provide, at a minimum, the same coverage as
a standard form fire and extended coverage insurance policy that is customary
for manufactured housing, issued by a company authorized to issue such policies
in the state in which the related Manufactured Home is located and in an amount
which is not less than the maximum insurable value of such Manufactured Home or
the principal balance due from the Obligor on the related Contract, whichever is
less; provided, however, that the amount of coverage provided by each Hazard
Insurance Policy shall be sufficient to avoid the application of any co-
insurance clause contained therein; and provided, further, that such Hazard
Insurance Policies may provide for customary deductible amounts. With respect
to: (a) a Manufactured Home securing an FHA/VA Contract, if such Manufactured
Home's location was, at the time of origination of the related FHA/VA Contract,
within a federally designated special flood hazard area, the Servicer shall also
cause such flood insurance to be maintained, which coverage shall be at least
equal to the minimum amount specified in the preceding sentence or such lesser
amount as may be available under the federal flood insurance program; and (b)
any Contract that is not an FHA/VA Contract, the Company shall obtain (i) a
statement from the Obligor's insurance agent that the Manufactured Home was, at
the time of origination of the Contract, not in a federally designated special
flood hazard area, or (ii) evidence that, at the time of origination, flood
insurance was in effect, which coverage was at least equal to the minimum amount
specified in the preceding sentence or such lesser amount as may be available
under the federal flood insurance program. Each Hazard Insurance Policy caused
to be maintained by the Servicer shall contain a standard loss payee clause in
favor of the Servicer and its successors and assigns. If any Obligor is in
default in the payment of premiums on its Hazard Insurance Policy or Policies,
the Servicer shall pay such premiums out of its own funds and may separately add
such premium to the Obligor's obligation as provided by the Contract, but shall
not add such premium to the remaining principal balance of the Contract.
b. The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home pursuant to
subsection (a) of this Section 5.09,
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and shall, to the extent that the related Contract does not require the Obligor
to maintain a Hazard Insurance Policy with respect to the related Manufactured
Home, maintain one or more blanket insurance policies covering losses on the
Obligor's interest in the Contracts resulting from the absence or insufficiency
of individual Hazard Insurance Policies. Any such blanket policy shall be
substantially in the form and in the amount carried by the Servicer as of the
date of this Agreement. The Servicer shall pay the premium for such policy on
the basis described therein and shall deposit into the Certificate Account from
its own funds any deductible amount with respect to claims under such blanket
insurance policy relating to the Contracts. The Servicer shall not, however, be
required to deposit any deductible amount with respect to claims under
individual Hazard Insurance Policies maintained pursuant to subsection (a) of
this Section. If the insurer under such blanket insurance policy shall cease to
be acceptable to the Servicer, the Servicer shall exercise its best reasonable
efforts to obtain from another insurer a replacement policy comparable to such
policy.
c. With respect to each Manufactured Home that has been repossessed in
connection with a defaulted Contract, the Servicer shall either (i) maintain one
or more Hazard Insurance Policies thereon or (ii) self-insure such Manufactured
Homes and deposit into the Certificate Account from its own funds any losses
caused by damage to such Manufactured Home that would have been covered by a
Hazard Insurance Policy.
d. The Servicer shall keep in force throughout the term of this Agreement
(i) a policy or policies of insurance covering errors and omissions for failure
to maintain insurance as required by this Agreement and (ii) a fidelity bond.
Such policy or policies and such fidelity bond shall be in such form and amount
as is generally customary among Persons which service a portfolio of
manufactured housing installment sales contracts and installment loan agreements
having an aggregate principal amount of $100,000,000 or more and which are
generally regarded as servicers acceptable to institutional investors.
SECTION 5.10. Repossession.
------------
Notwithstanding the standard of care specified in Section 5.02, the
Servicer shall commence procedures for the repossession of any Manufactured Home
or the foreclosure upon any Mortgaged Property or take such other steps that in
the Servicer's reasonable judgment will maximize the receipt of principal and
interest or Net Liquidation Proceeds with respect to the Contract secured by
such Manufactured Home or Mortgaged Property (which may include retitling or
filing a recorded assignment of the Mortgage) subject to the requirements of the
applicable state and federal law, no later than five Business Days after the
time when such Contract becomes a Defaulted Contract; provided that if the
Servicer has actual knowledge that a Mortgaged Property is affected by hazardous
waste, then the Servicer shall not cause the Company to acquire title to such
Mortgaged Property in a foreclosure or similar proceeding. For purposes of the
proviso in the preceding sentence, the Servicer shall not be deemed to have
actual knowledge that a Mortgaged Property is affected by hazardous waste unless
it shall have received written notice that hazardous waste is present on such
property and such written notice has been made a part of the Land-and-Home
Contract File with respect to the related Contract. In connection with such
foreclosure or other conversion, the Servicer shall follow such practices and
procedures as it shall deem necessary or
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advisable and as shall be consistent with Section 5.02. In the event that title
to any Mortgaged Property is acquired in foreclosure or by deed in lieu of
foreclosure, the deed or certificate of sale shall be issued to the Trustee, as
Trustee, or, at its election, to its nominee on behalf of the Trustee, as
Trustee.
SECTION 5.11. Commingling of Funds.
--------------------
So long as the Company is Servicer, any collections in respect of Contracts
collected by the Company shall, prior to the deposit thereof in the Certificate
Account, be held in bank accounts entitled substantially as follows: "[name of
depository], as agent for U.S. Bank National Association as Trustee, other
trustees, and Green Tree Financial Corporation, as their interests may appear."
SECTION 5.12. Retitling; Security Interests.
-----------------------------
a. If, at any time, a Service Transfer has occurred and the Company is no
longer the Servicer and the new Servicer is unable to foreclose upon a
Manufactured Home because the title document for such Manufactured Home does not
show such Servicer or the Trustee as the holder of the first priority security
interest in the Manufactured Home, such Servicer shall take all necessary steps
to apply for a replacement title document showing it or the Trustee as the
secured party.
b. In order to facilitate the Servicer's actions, as described in
subsection (a) of this section, the Company will provide the Servicer with any
necessary power of attorney permitting it to retitle the Manufactured Home.
c. If the Servicer is still unable to retitle the Manufactured Home, the
Company will take all actions necessary to act with the Servicer to foreclose
upon the Manufactured Home, including, as appropriate, the filing of any UCC-1
or UCC-2 financing statements necessary to perfect the security interest in any
Manufactured Home that constitutes a fixture under the laws of the jurisdiction
in which it is located and all actions necessary to perfect the security
interest in any Manufactured Home that is considered or classified as part of
the real estate on which it is located under the laws of the jurisdiction in
which it is located.
d. If the aggregate Cut-off Date Principal Balances of all Land-and-Home
Contracts equals or exceeds 10% of the Cut-off Date Pool Principal Balance, the
Company shall (i) within 60 days of the Post-Funding Remittance Date (or the
Closing Date if the Pre-Funded Amount on the Closing Date is less than $10,000)
submit to the appropriate recording offices the assignments to the Trustee on
behalf of the Trust of the number of Mortgages securing Land-and-Home Contracts
needed to reduce the aggregate Cut-off Date Principal Balances of all Land-and-
Home Contracts with respect to which such assignments are not so recorded to
less than 10% of the Cut-off Date Pool Principal Balance or (ii) on the Post-
Funding Remittance Date (or the Closing Date if the Pre-Funded Amount on the
Closing Date is less than $10,000), deliver an Opinion of Counsel satisfactory
to the Trustee to the effect that the Trustee holds a perfected first priority
lien in the real estate securing the Land-and-Home Contracts, with the exception
of real estate located in such states
5-8
as may be identified in such Opinion of Counsel, provided that the Land-and-Home
Contracts secured by real estate located in such identified states does not
exceed 10% of the Cut-off Date Pool Principal Balance as of the Post-Funding
Remittance Date, or Closing Date, as applicable.
If at any time during the term of this Agreement, the Trustee receives
written notice from the Company or the Servicer that the Company does not have a
long-term senior debt rating from ▇▇▇▇▇'▇ of Baa3 or higher, from Standard &
Poor's of BBB- or higher and from Fitch of BBB or higher, or if the Trustee
otherwise becomes aware of the same, the Trustee, at the Company's expense,
shall file promptly in the appropriate recording offices the assignments to the
Trustee on behalf of the Trust of each Mortgage securing a Land-and-Home
Contract, unless the Company obtains confirmation from both Standard & Poor's
and Fitch that failure to file such assignments will not result in Standard &
Poor's or Fitch (as applicable) lowering, withdrawing or qualifying its rating
of any Class of Certificates.
5-9
ARTICLE VI
REPORTS AND TAX MATTERS
-----------------------
SECTION 6.01. Monthly Reports.
---------------
a. No later than 1:00 p.m. on each Determination Date, the Servicer shall
deliver to the Trustee, the Paying Agent, the Company (if the Company is not the
Servicer), and the Rating Agencies a "Monthly Report," substantially in the form
of Exhibit N hereto.
b. If the applicable Monthly Report indicates that there is a Class M-1
Interest Deficiency Amount, a Class M-2 Interest Deficiency Amount and/or a
Class B-1 Interest Deficiency Amount, the Servicer shall promptly notify the
Trustee, by telephone, of the aggregate amount of such Class M-1 Interest
Deficiency Amount, Class M-2 Interest Deficiency Amount and Class B-1 Interest
Deficiency Amount. On the day one Business Day prior to the related Remittance
Date, the Trustee shall determine the total amount of funds in the Certificate
Account available to pay such deficiency in accordance with Section 8.03(b) and
shall promptly notify the Servicer of such amount. If the total amount of funds
in the Certificate Account is not sufficient to pay the deficiency, the Trustee
shall promptly notify the Servicer, and shall reflect such deficiency in the
reports delivered to Certificateholders pursuant to Section 6.05.
SECTION 6.02. Certificate of Servicing Officer.
--------------------------------
Each Monthly Report pursuant to Section 6.01 shall be accompanied by a
certificate of a Servicing Officer substantially in the form of Exhibit I,
certifying the accuracy of the Monthly Report and that no Event of Termination
or event that with notice or lapse of time or both would become an Event of
Termination has occurred, or if such event has occurred and is continuing,
specifying the event and its status.
SECTION 6.03. Other Data.
----------
In addition, the Company and (if different from the Company) the Servicer
shall, on request of the Trustee, either of the Rating Agencies, or a
Certificateholder, furnish the Trustee and/or such Rating Agency or
Certificateholder such underlying data as may be reasonably requested.
SECTION 6.04. Annual Report of Accountants.
----------------------------
On or before May 1 of each year, commencing May 1, 2000, the Servicer at
its expense shall cause a firm of independent public accountants which is a
member of the American Institute of Certified Public Accountants to issue to the
Servicer a report that such firm has examined selected documents, records and
management's assertions relating to loans serviced by the Servicer and stating
that, on the basis of such examination, such servicing has been conducted in
compliance with the minimum servicing standards identified in the Mortgage
Bankers Association of America's Uniform Single Attestation Program for Mortgage
Bankers, or any successor uniform program,
6-1
except for such significant exceptions or errors in records that, in the opinion
of such firm, generally accepted attestation standards requires it to report.
SECTION 6.05. Statements to Certificateholders.
--------------------------------
a. The Servicer shall prepare and furnish to the Trustee the
statements specified below relating to the Class A Certificates, Class M-1
Certificates, Class M-2 Certificates, Class B-1 Certificates, Class B-2
Certificates and Class B-3I Certificates on or before the third Business Day
next preceding each Remittance Date. The Trustee and the Servicer shall inform
any Certificateholder, ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇ Brothers Inc. and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC inquiring by
telephone of the information contained in the most recent Monthly Report.
b. Concurrently with each distribution charged to the Certificate
Account the Trustee, so long as it has received the Monthly Report from the
Servicer, shall forward or cause to be forwarded by mail to each Holder of a
Class A Certificate and (if the Company is not the Servicer) the Company a
statement setting forth the following:
(i) the amount of such distribution to Holders of each Class of Class A
Certificates allocable to interest, separately identifying any
Unpaid Class A Interest Shortfall included in such distribution and
any remaining Unpaid Class A Interest Shortfall after giving effect
to such distribution;
(ii) the amount of such distribution to Holders of each Class of Class A
Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein, and
any remaining Unpaid Class A Principal Shortfall after giving
effect to such distribution;
(iii) the amount, if any, by which the Class A Formula Distribution
Amount for such Remittance Date exceeds the Class A Distribution
Amount for such Remittance Date;
(iv) the Class Principal Balance for each Class of Class A Certificates,
after giving effect to the distribution of principal on such
Remittance Date;
(v) the Class A Percentage for such Remittance Date and the following
Remittance Date;
(vi) the Pool Scheduled Principal Balance of the Contracts for such
Remittance Date;
(vii) the Pool Factor;
(viii) the number and aggregate principal balances of Contracts
delinquent (a) 30-59 days and (b) 60 or more days;
(ix) the number of Manufactured Homes that were repossessed during the
month ending immediately prior to such Remittance Date;
6-2
(x) the number of Manufactured Homes that were repossessed but remain
in inventory as of the last day of the related Due Period ending
immediately prior to such Remittance Date;
(xi) the Class M-1 Distribution Test (as set forth in Exhibit N hereto);
(xii) the Class M-2 Distribution Test (as set forth in Exhibit N
hereto);
(xiii) the Class B Distribution Test (as set forth in Exhibit N hereto);
(xiv) the Weighted Average Contract Rate of all outstanding Contracts;
(xv) the Class M-1 Interest Deficiency Amount, if any, for such
Remittance Date;
(xvi) the Class M-2 Interest Deficiency Amount, if any, for such
Remittance Date; and
(xvii) the Class B-1 Interest Deficiency Amount, if any, for such
Remittance Date.
In the case of information furnished pursuant to clauses (i) through (iv)
above, the amounts shall be expressed as a dollar amount per Class A Certificate
with a 1% Percentage Interest or per $1,000 denomination of Class A Certificate.
Within a reasonable period of time after the end of each calendar year, the
Servicer shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class A-1 Certificate a statement
containing the information with respect to interest accrued and principal paid
on its Certificates during such calendar year. Such obligation of the Servicer
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in force.
c. On each Remittance Date, the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Class M-1 Certificate a copy of the
Monthly Report forwarded to the Holders of Class A-1 Certificates on such
Remittance Date. The Servicer shall also furnish to the Trustee, which shall
forward such report to the Class M-1 Certificateholders as part of the Monthly
Report, the following information:
(i) the amount of such distribution to Holders of Class M-1
Certificates allocable to interest, separately identifying any
Unpaid Class M-1 Interest Shortfall included in such distribution,
any remaining Unpaid Class M-1 Interest Shortfall after giving
effect to such distribution, any Class M-1 Liquidation Loss
Interest Amount included in such distribution and any remaining
unpaid Class M-1 Liquidation Loss Interest Shortfall after giving
effect to such distribution;
(ii) the amount of such distribution to Holders of Class M-1
Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments
6-3
included therein and any remaining Unpaid Class M-1 Principal
Shortfall after giving effect to such distribution;
(iii) the amount, if any, by which the Class M-1 Formula Distribution
Amount for such Remittance Date exceeds the Class M-1
Distribution Amount for such Remittance Date;
(iv) the Class M-1 Principal Balance and the Class M-1 Adjusted
Principal Balance (if different) after giving effect to the
distribution of principal on such Remittance Date;
(v) the Class M-1 Percentage for such Remittance Date and the
following Remittance Date; and
(vi) the information described above in Section 6.05(b)(vi) through
(xvii).
In the case of the information in clauses (i) through (iv) above, the
amounts shall be expressed as a dollar amount per Class M-1 Certificate with a
1% Percentage Interest or per $1,000 denomination of Class M-1 Certificate.
Within a reasonable period of time after the end of each calendar year, the
Servicer shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class M-1 Certificate a statement
containing the applicable distribution information provided pursuant to this
Section aggregated for such calendar year or applicable portion thereof during
which such Person was the Holder of a Class M-1 Certificate. Such obligation of
the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code as from time to time enforced.
d. On each Remittance Date, the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Class M-2 Certificate a copy of the
Monthly Report forwarded to the Holders of Class A Certificates and Class M-1
Certificates on such Remittance Date. The Servicer shall also furnish to the
Trustee, which shall forward such report to the Class M-2 Certificateholders as
part of the Monthly Report, the following information:
(i) the amount of such distribution to Holders of Class M-2
Certificates allocable to interest, separately identifying any
Unpaid Class M-2 Interest Shortfall included in such
distribution, any remaining Unpaid Class M-2 Interest Shortfall
after giving effect to such distribution, any Class M-2
Liquidation Loss Interest Amount included in such distribution
and any remaining unpaid Class M-2 Liquidation Loss Interest
Shortfall after giving effect to such distribution;
(ii) the amount of such distribution to Holders of Class M-2
Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein
and any remaining Unpaid Class M-2 Principal Shortfall after
giving effect to such distribution;
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(iii) the amount, if any, by which the Class M-2 Formula Distribution
Amount for such Remittance Date exceeds the Class M-2
Distribution Amount for such Remittance Date;
(iv) the Class M-2 Principal Balance and the Class M-2 Adjusted
Principal Balance (if different) after giving effect to the
distribution of principal on such Remittance Date;
(v) the Class M-2 Percentage for such Remittance Date and the
following Remittance Date; and
(vi) the information described above in Section 6.05(b)(vi) through
(xvii).
In the case of the information in clauses (i) through (iv) above, the
amounts shall be expressed as a dollar amount per Class M-2 Certificate with a
1% Percentage Interest or per $1,000 denomination of Class M-2 Certificate.
Within a reasonable period of time after the end of each calendar year, the
Servicer shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class M-2 Certificate a statement
containing the applicable distribution information provided pursuant to this
Section aggregated for such calendar year or applicable portion thereof during
which such Person was the Holder of a Class M-2 Certificate. Such obligation of
the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code as from time to time enforced.
e. On each Remittance Date, the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Class B-1 Certificate a copy of the
Monthly Report forwarded to the Holders of Class A, Class M-1 and Class M-2
Certificates on such Remittance Date. The Servicer shall also furnish to the
Trustee, which shall forward such report to the Class B-1 Certificateholders as
part of the Monthly Report, the following information:
(i) the amount of such distribution to Holders of Class B-1
Certificates allocable to interest, separately identifying any
Unpaid Class B-1 Interest Shortfall included in such
distribution, any remaining Unpaid Class B-1 Interest Shortfall
after giving effect to such distribution, any Class B-1
Liquidation Loss Interest Amount included in such distribution
and any remaining Unpaid Class B-1 Liquidation Loss Interest
Shortfall after giving effect to such distribution;
(ii) the amount of such distribution to Holders of Class B-1
Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein,
and any remaining Unpaid Class B-1 Principal Shortfall after
giving effect to such distribution;
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(iii) the amount, if any, by which the Class B-1 Formula Distribution
Amount for such Remittance Date exceeds the Class B-1
Distribution Amount for such Remittance Date;
(iv) the Class B-1 Principal Balance and the Class B-1 Adjusted
Principal Balance (if different) after giving effect to the
distribution of principal on such Remittance Date;
(v) the Class B Percentage for such Remittance Date and the following
Remittance Date; and
(vi) the information described above in Section 6.05(b)(vi) through
(xvii).
In the case of the information in clauses (i) through (iv) above, the
amounts shall be expressed as a dollar amount per Class B-1 Certificate with a
1% Percentage Interest or per $1,000 denomination of Class B-1 Certificate.
Within a reasonable period of time after the end of each calendar year, the
Servicer shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class B-1 Certificate a statement
containing the applicable distribution information provided pursuant to this
Section aggregated for such calendar year or applicable portion thereof during
which such Person was the Holder of a Class B-1 Certificate. Such obligation of
the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code as from time to time enforced.
f. On each Remittance Date, the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Class B-2 Certificate a copy of the
Monthly Report forwarded to the Holders of Class A, Class M-1, Class M-2 and
Class B-1 Certificates on such Remittance Date. The Servicer shall also furnish
to the Trustee, which shall forward such report to the Class B-2
Certificateholders as part of the Monthly Report, the following information:
(i) the amount of such distribution to Holders of Class B-2
Certificates allocable to interest, separately identifying any
Unpaid Class B-2 Interest Shortfall included in such distribution
and any remaining Unpaid Class B-2 Interest Shortfall after
giving effect to such distribution;
(ii) the amount of such distribution to Holders of Class B-2
Certificates allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments included therein,
and any Unpaid Class B-2 Principal Shortfall after giving effect
to such distribution;
(iii) the amount, if any, by which the Class B-2 Formula Distribution
Amount for such Remittance Date exceeds the Remaining Amount
Available for such Remittance Date;
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(iv) the Class B-2 Principal Balance after giving effect to the
distribution of principal on such Remittance Date;
(v) the Class B Percentage for such Remittance Date and the following
Remittance Date;
(vi) the information described above in Section 6.05(b)(vi) through
(xvii);
(vii) the Class B-2 Liquidation Loss Amount, if any, for such
Remittance Date;
(viii) the Guarantee Payment, if any, for such Remittance Date; and
(ix) the Weighted Average Contract Rate of all outstanding Contracts.
In the case of the information in clauses (i) through (iv) above, the
amounts shall be expressed as a dollar amount per Class B-2 Certificate with a
1% Percentage Interest or per $1,000 denomination of Class B-2 Certificate.
Within a reasonable period of time after the end of each calendar year, the
Servicer shall furnish or cause to be furnished to each Person who at any time
during the calendar year was the Holder of a Class B-2 Certificate a statement
containing the applicable distribution information provided pursuant to this
Section aggregated for such calendar year or applicable portion thereof during
which such Person was the Holder of a Class B-2 Certificate. Such obligation of
the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code as from time to time enforced.
g. On each Remittance Date, the Trustee shall forward or cause to be
forwarded by mail to each Holder of a Class B-3I Certificate a copy of the
Monthly Report forwarded to the Holders of Class A, Class M-1, Class M-2, Class
B-1 and Class B-2 Certificates on such Remittance Date. The Servicer shall also
furnish to the Trustee, which shall forward such report to the Class B-3I
Certificateholders as part of the Monthly Report, the following information:
(i) the Class B-3I Formula Distribution Amount for such Remittance
Date, including any Unpaid Class B-3I Shortfall immediately prior
to such Remittance Date;
(ii) the Class B-3I Distribution Amount for such Remittance Date; and
(iii) the Unpaid Class B-3I Shortfall immediately following such
Distribution Date.
h. Copies of all reports provided to the Trustee for the
Certificateholders shall also be provided to the Rating Agencies and to the
Class C Certificateholders. In addition, Certificate Owners may receive copies
of any reports provided to the Trustee for the Certificateholders, upon written
request together with a certification that they are Certificate Owners and
payment of reproduction and postage expenses associated with the distribution of
such reports, from the Trustee at the Corporate Trust Office.
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SECTION 6.06. Payment of Taxes.
----------------
The Servicer shall be responsible for and agrees to prepare, make and file
all federal, state, local or other tax returns, information statements and other
returns and documents of every kind and nature whatsoever required to be made or
filed by or on behalf of the Subsidiary REMIC or Master REMIC pursuant to the
Code and other applicable tax laws and regulations. Each such return, statement
and document shall, to the extent required by the Code or other applicable law
and at the request of the Servicer, be signed on behalf of the Subsidiary REMIC
or Master REMIC by the Trustee. The Trustee shall have no responsibility
whatsoever for the accuracy or completeness of any such return, statement or
document. The Servicer agrees to indemnify the Trustee and hold it harmless
for, from, against and in respect to any and all liability, loss, damage and
expense which may be incurred by the Trustee based upon or as a result of the
Trustee's execution of any and all such tax returns, statements and documents.
The Servicer, if and for so long as it is a Class C Certificateholder, shall be
designated the "tax matters person" on behalf of the Subsidiary REMIC and the
Master REMIC, respectively, in the same manner as a partnership may designate a
"tax matters partner," as such term is defined in Section 6231(a)(7) of the
Code. To the extent permitted by the REMIC Provisions, any subsequent holder of
a Class C Certificate, by acceptance thereof, irrevocably designates and
appoints the Servicer as its agent to perform the responsibilities of the "tax
matters person" on behalf of the Subsidiary REMIC and the Master REMIC,
respectively, if, and during such time as, the Servicer is not the holder of a
Class C Certificate. The Servicer may, at its expense, retain such outside
assistance as it deems necessary in the performance of its obligations under
this paragraph.
Each of the Holders of the Certificates, by acceptance thereof, agrees to
file tax returns consistent with and in accordance with any elections, decisions
or other reports made or filed with regard to federal, state or local taxes on
behalf of the Subsidiary REMIC or the Master REMIC. The Company, as agent for
the tax matters person, shall represent the Subsidiary REMIC or the Master REMIC
in connection with all examinations of the Subsidiary REMIC's or the Master
REMIC's affairs by tax authorities, including resulting administrative and
judicial proceedings. Each of the holders of the Certificates, by acceptance
thereof, agrees to cooperate with the Company in such matters and to do or
refrain from doing any or all things reasonably required by the Company to
conduct such proceedings, provided that no such action shall be required by the
Company of any Certificateholder that would entail unnecessary or unreasonable
expenses for such Certificateholder in the performance of such action.
The Class C Subsidiary Certificateholders and the Class C Master
Certificateholders shall pay, on behalf of the Subsidiary REMIC or the Master
REMIC, respectively, any foreign, federal, state or local income, property,
excise, sales, receipts or any other similar or related taxes or charges which
may be imposed upon the Subsidiary REMIC or the Master REMIC as a REMIC or
otherwise and shall, to the extent provided in Section 10.06, be entitled to be
reimbursed out of the Certificate Account or, if such tax or charge results from
a failure by the Trustee, the Company or any Servicer to comply with the
provisions of Section 2.04 or 3.06, the Trustee, the Company or such Servicer,
as the case may be, shall indemnify the Class C Certificateholders for the
payment of any such tax or charge. The Trustee shall be entitled to withhold
from amounts otherwise distributable to the Class C Certificateholders any taxes
or charges payable by the Class C Certificateholders hereunder.
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In the event a Class C Certificate is transferred to a "disqualified
organization," within the meaning of Section 860E(e)(5) of the Code, pursuant to
Section 860D(a)(6)(B) of the Code the Company shall provide to the Internal
Revenue Service and the persons specified in Sections 860E(e)(3) and (6) of the
Code all information necessary for the application of Section 860E(e) and any
other applicable provision of the Code with respect to the transfer of such
Class C Certificate to such a disqualified organization including, without
limitation, a computation showing the present value of the total anticipated
excess inclusions with respect to such Class C Certificate for periods after the
transfer as defined in the REMIC Provisions. In addition, to the extent
required by the REMIC Provisions, the Company shall, upon the written request of
persons designated in Section 860E(e)(3) of the Code, furnish to such requesting
party and the Internal Revenue Service information sufficient to compute the
present value of anticipated excess inclusions within 60 days of the receipt of
such written request.
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ARTICLE VII
SERVICE TRANSFER
----------------
SECTION 7.01. Event of Termination.
--------------------
"Event of Termination" means the occurrence of any of the following:
--------------------
a. Any failure by the Servicer to make any deposit into an account
required to be made hereunder and the continuance of such failure for a period
of five Business Days after the Servicer has become aware, or should have become
aware, that such deposit was required;
b. Failure on the Servicer's part to observe or perform in any material
respect any covenant or agreement in this Agreement (other than a covenant or
agreement which is elsewhere in this Section specifically dealt with) which
continues unremedied for 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or to the Servicer and the Trustee by Holders of Class A
Certificates, Class M-1 Certificates, Class M-2 Certificates and Class B
Certificates evidencing, as to any such Class, Percentage Interests aggregating
not less than 25%;
c. Any assignment by the Servicer of its duties hereunder except as
specifically permitted hereunder, or any attempt to make such an assignment;
d. A court or other governmental authority having jurisdiction in the
premises shall have entered a decree or order for relief in respect of the
Servicer in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Servicer, as the case may be, or for any substantial liquidation of its
affairs, and such order remains undischarged and unstayed for at least 60 days;
e. The Servicer shall have commenced a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian
or sequestrator (or other similar official) of the Servicer or for any
substantial part of its property, or shall have made any general assignment for
the benefit of its creditors, or shall have failed to, or admitted in writing
its inability to, pay its debts as they become due, or shall have taken any
corporate action in furtherance of the foregoing; or
f. The failure of the Servicer to be an Eligible Servicer.
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SECTION 7.02. Transfer.
--------
If an Event of Termination has occurred and is continuing, either the
Trustee or Certificateholders with aggregate Percentage Interests representing
25% or more of the Trust, by notice in writing to the Servicer (and to the
Trustee if given by the Certificateholders) may terminate all (but not less than
all) of the Servicer's management, administrative, servicing and collection
functions (such termination being herein called a "Service Transfer"). On
receipt of such notice (or, if later, on a date designated therein), or upon
resignation of the Servicer in accordance with Section 12.01, all authority and
power of the Servicer under this Agreement, whether with respect to the
Contracts, the Contract Files, the Land-and-Home Contract Files or otherwise
(except with respect to the Certificate Account, the transfer of which shall be
governed by Section 7.06), shall pass to and be vested in the Trustee pursuant
to and under this Section 7.02; and, without limitation, the Trustee is
authorized and empowered to execute and deliver on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments
(including, without limitation, documents required to make the Trustee or a
successor servicer the sole lienholder or legal title holder of record of each
Manufactured Home) and to do any and all acts or things necessary or appropriate
to effect the purposes of such notice of termination. Each of the Company and
the Servicer agrees to cooperate with the Trustee in effecting the termination
of the responsibilities and rights of the Servicer hereunder, including, without
limitation, the transfer to the Trustee for administration by it of all cash
amounts which shall at the time be held by the Servicer for deposit, or have
been deposited by the Servicer, in the Certificate Account, or for its own
account in connection with its services hereafter or thereafter received with
respect to the Contracts and the execution of any documents required to make the
Trustee or a successor servicer the sole lienholder or legal title holder of
record in respect of each Manufactured Home. The Servicer shall be entitled to
receive any other amounts which are payable to the Servicer under the Agreement,
at the time of the termination of its activities as Servicer. The Servicer
shall transfer to the new servicer (i) the Servicer's records relating to the
Contracts in such electronic form as the new servicer may reasonably request and
(ii) any Contracts, Contract Files and Land-and-Home Contract Files in the
Servicer's possession.
SECTION 7.03. Trustee to Act; Appointment of Successor.
----------------------------------------
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.02 or the resignation of the Servicer in accordance with
Section 12.01, the Trustee shall be the successor in all respects to the
Servicer in its capacity as servicer under this Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof and the Servicer shall be relieved of such
responsibilities, duties and liabilities arising after such Service Transfer;
provided, however, that (i) the Trustee will not assume any obligations of the
Company pursuant to Section 3.05 and (ii) the Trustee shall not be liable for
any acts or omissions of the Servicer occurring prior to such Service Transfer
or for any breach by the Servicer of any of its obligations contained herein or
in any related document or agreement. As compensation therefor, the Trustee
shall be entitled to receive reasonable compensation out of the Monthly
Servicing Fee. Notwithstanding the above, the Trustee may, if it shall be
unwilling so to act, or shall, if it is legally unable so to act, appoint,
7-2
or petition a court of competent jurisdiction to appoint, an Eligible Servicer
as the successor to the Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Servicer hereunder.
Pending appointment of a successor to the Servicer hereunder, unless the Trustee
is prohibited by law from so acting, the Trustee shall act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Contracts as it and such successor shall agree; provided, however,
that no such monthly compensation shall, without the written consent of 100% of
the Certificateholders, exceed the Monthly Servicing Fee. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.04. Notification to Certificateholders.
----------------------------------
a. Promptly following the occurrence of any Event of Termination, the
Servicer shall give written notice thereof to the Trustee, the Rating Agencies,
and the Certificateholders at their respective addresses appearing on the
Certificate Register.
b. Within ten days following any termination or appointment of a
successor to the Servicer pursuant to this Article VII, the Trustee shall give
written notice thereof to the Rating Agencies and the Certificateholders at
their respective addresses appearing on the Certificate Register.
c. The Trustee shall give written notice to the Rating Agencies at least
30 days prior to the date upon which any Eligible Servicer (other than the
Trustee) is to assume the responsibilities of Servicer pursuant to Section 7.03,
naming such successor Servicer.
SECTION 7.05. Effect of Transfer.
------------------
a. After the Service Transfer, the Trustee or new Servicer may notify
Obligors to make payments directly to the new Servicer that are due under the
Contracts after the effective date of the Service Transfer.
b. After the Service Transfer, the replaced Servicer shall have no
further obligations with respect to the management, administration, servicing or
collection of the Contracts and the new Servicer shall have all of such
obligations, except that the replaced Servicer will transmit or cause to be
------
transmitted directly to the new Servicer for its own account, promptly on
receipt and in the same form in which received, any amounts (properly endorsed
where required for the new Servicer to collect them) received as payments upon
or otherwise in connection with the Contracts.
c. A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities of the Servicer
and the Company pursuant to Article X and Sections 3.05, 11.06 and 11.11(f))
other than those relating to the management, administration, servicing or
collection of the Contracts.
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SECTION 7.06. Transfer of Certificate Account.
-------------------------------
Notwithstanding the provisions of Section 7.02, if the Certificate Account
shall be maintained with the Servicer and an Event of Termination shall occur
and be continuing, the Servicer shall, after five days' written notice from the
Trustee, or in any event within ten days after the occurrence of the Event of
Termination, establish an Eligible Account with an institution other than the
Servicer and promptly transfer all funds in the Certificate Account to such new
account, which shall thereafter be deemed the Certificate Account for the
purposes hereof.
7-4
ARTICLE VIII
PAYMENTS
--------
SECTION 8.01. Monthly Payments.
----------------
a. Subject to the terms of this Article VIII, each Holder of a
Certificate as of a Record Date shall be paid on the next succeeding Remittance
Date by check mailed on such Remittance Date to such Certificateholder at the
address for such Certificateholder appearing on the Certificate Register (or, if
such Certificateholder holds a Class of Class A Certificates, Class M-1
Certificates, Class M-2 Certificates or a Class of Class B Certificates with an
aggregate Percentage Interest of at least 5% or a Class B-3I, Class C Subsidiary
or Class C Master Certificateholder holds Class B-3I, Class C Subsidiary or
Class C Master Certificates with an aggregate Percentage Interest of at least
20% and so requests, by wire transfer pursuant to instructions delivered to the
Trustee at least ten days prior to such Remittance Date), the sum equal to such
Certificateholder's Percentage Interest of the Class A Distribution Amount, the
Class M-1 Distribution Amount, the Class M-2 Distribution Amount, the Class B-1
Distribution Amount, the Class B-2 Distribution Amount, any Guarantee Payment,
the Class B-3I Distribution Amount, the Class C Subsidiary Distribution Amount
or the Class C Master Distribution Amount, as applicable. Final payment of any
Certificate shall be made only upon presentation of such Certificate at the
office or agency of the Paying Agent.
b. Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing
such distribution to the Certificate Owners that it represents and to each
indirect participating brokerage firm (a "brokerage firm" or "indirect
participating firm") for which it acts as agent. Each brokerage firm shall be
responsible for disbursing funds to the Certificate Owners that it represents.
All such credits and disbursements with respect to a Book-Entry Certificate are
to be made by the Depository and the Depository Participants in accordance with
the provisions of the Book Entry Certificates. Neither the Trustee, the
Certificate Registrar, the Seller nor the Servicer shall have any responsibility
therefor except as otherwise provided by applicable law. To the extent
applicable and not contrary to the rules of the Depository, the Trustee shall
comply with the provisions of the forms of the Class A, Class M and Class B
Certificates as set forth in Exhibits A, B and C hereto.
c. The Trustee shall either act as the paying agent or shall appoint an
institution meeting the eligibility requirements set forth in Section 11.06 to
be the paying agent (in either case, the "Paying Agent") and cause it to make
the payments to the Certificateholders required hereunder. The Trustee's
Corporate Trust Office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇, shall initially act as Paying Agent. The Trustee
shall require the Paying Agent (if other than the Trustee) to agree in writing
that all amounts held by the Paying Agent for payment hereunder will be held in
trust for the benefit of the Certificateholders and that it will notify the
Trustee of any failure by the Servicer to make funds available to the Paying
Agent for the payment of amounts due on the Certificates.
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SECTION 8.02. Permitted Withdrawals from the Certificate Account.
--------------------------------------------------
The Trustee may, from time to time as provided herein, make withdrawals
from the Certificate Account of amounts deposited in said account pursuant to
Section 5.05 that are attributable to the Contracts for the following purposes:
a. to make payments in the amounts and in the manner provided for in
Section 8.03;
b. to pay to the Company with respect to each Contract or property
acquired in respect thereof that has been repurchased or replaced pursuant
to Section 3.05, all amounts received thereon and not required to be
distributed to Certificateholders as of the date on which the related
Scheduled Principal Balance or Repurchase Price is determined;
c. to reimburse the Servicer out of Liquidation Proceeds for
Liquidation Expenses incurred by it, to the extent such reimbursement is
permitted pursuant to Section 5.08;
d. to withdraw any amount deposited in the Certificate Account that
was not required to be deposited therein; or
e. to make any rebates or adjustments deemed necessary by the
Servicer pursuant to Section 5.06(d).
Since, in connection with withdrawals pursuant to clause (b), the Company's
entitlement thereto is limited to collections or other recoveries on the related
Contract, the Servicer shall keep and maintain separate accounting, on a
Contract by Contract basis, for the purpose of justifying any withdrawal from
the Certificate Account pursuant to such clause.
SECTION 8.03. Payments.
--------
a. On each Remittance Date the Trustee shall withdraw from the
Certificate Account the Amount Available (as determined on the immediately
preceding Determination Date), plus on the Post-Funding Remittance Date any Pre-
Funded Amount and on the first Remittance Date any amount withdrawn from the
Capitalized Interest Account and deposited in the Certificate Account, and apply
such funds to make payment in the following order of priority, to the extent of
such funds and subject to Section 8.03(d):
1. if neither the Company nor a wholly owned subsidiary of the
Company is the Servicer, to pay the Monthly Servicing Fee and any other
compensation owed to the Servicer pursuant to Section 7.03;
2. after payment of the amount specified in clause (1), above, to the
Class A Certificateholders as follows:
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(i) the amount in clause (a)(i) of the definition of Class A Formula
Distribution Amount to the Class A-1 Certificateholders; the
amount in clause (a)(ii) of the definition of Class A Formula
Distribution Amount to the Class A-2 Certificateholders; the
amount in clause (a)(iii) of the definition of Class A Formula
Distribution Amount to the Class A-3 Certificateholders; the
amount in clause (a)(iv) of the definition of Class A Formula
Distribution Amount to the Class A-4 Certificateholders; the
amount in clause (a)(v) of the definition of Class A Formula
Distribution Amount to the Class A-5 Certificateholders; the
amount in clause (a)(vi) of the definition of Class A Formula
Distribution Amount to the Class A-6 Certificateholders; the
amount in clause (a)(vii) of the definition of Class A Formula
Distribution Amount to the Class A-7 Certificateholders; the
amount in clause (a)(viii) of the definition of Class A Formula
Principal Distribution Amount to the Class A-8
Certificateholders, and the amount in clause (a)(ix) of the
definition of Class A Formula Principal Distribution Amount to
the Class A-9 Certificateholders; or, if the available amount is
less than the sum of the amounts specified in this clause (i),
pro rata to each Class of Class A Certificates based on the
amount of interest payable pursuant to this clause;
(ii) the Unpaid Class A Interest Shortfall pro rata to each Class of
Class A Certificates based on the Unpaid Class A Interest
Shortfall of each such Class;
3. after payment of the amounts specified in clauses (1) - (2)
above, to the Class M-1 Certificateholders as follows:
(i) the amount in clause (a) of the definition of Class M-1 Formula
Distribution Amount;
(ii) any Unpaid Class M-1 Interest Shortfall;
4. after payment of the amounts specified in clauses (1) - (3)
above, to the Class M-2 Certificateholders as follows:
(i) the amount in clause (a) of the definition of Class M-2 Formula
Distribution Amount;
(ii) any Unpaid Class M-2 Interest Shortfall;
5. after payment of the amounts specified in clauses (1) - (4)
above, to the Class B-1 Certificateholders as follows:
(i) the amount in clause (a) of the definition of Class B-1 Formula
Distribution Amount;
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(ii) any Unpaid Class B-1 Interest Shortfall;
6. after payment of the amounts specified in clauses (1) - (5)
above, to the Class A Certificateholders, as follows:
(i) if there is a Class A Principal Deficiency Amount as of such
Remittance Date, pro rata to each Class of Class A Certificates
based on the related Class Principal Balance (but in no event
shall such amount exceed the related Class Principal Balance);
(ii) the Unpaid Class A Principal Shortfall to each Class of Class A
Certificates then entitled to payment pursuant to clause (iii),
below;
(iii) if such Remittance Date is on or prior to the later of the Class
A-8 Cross-over Date and the Class A-9 Cross-over Date, the Class
A Percentage of the Formula Principal Distribution Amount,
37.31% of which shall be distributed to the Class A-9
Certificateholders, but in no event more than the Class A-9
Principal Balance, and 62.69% of which shall be distributed as
follows:
(a) if such Remittance Date is on or prior to the Class A-1
Cross-over Date, to the Class A-1 Certificateholders, but
in no event more than the Class A-1 Principal Balance;
(b) if such Remittance Date is on or after the Class A-1 Cross-
over Date but not after the Class A-2 Cross-over Date, to
the Class A-2 Certificateholders, but in no event more than
the Class A-2 Principal Balance;
(c) if such Remittance Date is on or after the Class A-2 Cross-
over Date but not after the Class A-3 Cross-over Date, to
the Class A-3 Certificateholders, but in no event more than
the Class A-3 Principal Balance;
(d) if such Remittance Date is on or after the Class A-3 Cross-
over Date but not after the Class A-4 Cross-over Date, to
the Class A-4 Certificateholders, but in no event more than
the Class A-4 Principal Balance;
(e) if such Remittance Date is on or after the Class A-4 Cross-
over Date but not after the Class A-5 Cross-over Date, to
the Class A-5 Certificateholders, but in no event more than
the Class A-5 Principal Balance;
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(f) if such Remittance Date is on or after the Class A-5
Cross-over Date but not after the Class A-6 Cross-over
Date, to the Class A-6 Certificateholders, but in no event
more than the Class A-6 Principal Balance;
(g) if such Remittance Date is on or after the Class A-6
Cross-over Date but not after the Class A-7 Cross-over
Date, to the Class A-7 Certificateholders, but in no event
more than the Class A-7 Principal Balance; and
(h) if such Remittance Date is on or after the Class A-7
Cross-over Date but not after the Class A-8 Cross-over
Date, to the Class A-8 Certificateholders, but in no event
more than the Class A-8 Principal Balance; and
(i) if such Remittance Date is on or after the Class A-8
Cross-over Date but not after the Class A-9 Cross-over
Date, to the Class A-9 Certificateholders, but in no event
more than the Class A-9 Principal Balance;
7. after payment of the amounts specified in clauses (1) - (6)
above, to the Class M-1 Certificateholders as follows:
(i) any Unpaid Class M-1 Principal Shortfall;
(ii) the Class M-1 Percentage of the Formula Principal Distribution
Amount to the Class M-1 Certificateholders (plus if such
Remittance Date is on the Class A-7 Cross-over Date, the amount
by which the Class A Percentage of the Formula Principal
Distribution Amount exceeds the Class A Principal Balance on
such date), but in no event more than the Class M-1 Principal
Balance;
(iii) any Class M-1 Liquidation Loss Interest Amount;
(iv) any Unpaid Class M-1 Liquidation Loss Interest Shortfall;
8. after payment of the amounts specified in clauses (1) - (7)
above, to the Class M-2 Certificateholders as follows:
(i) any Unpaid Class M-2 Principal Shortfall;
(ii) the Class M-2 Percentage of the Formula Principal Distribution
Amount to the Class M-2 Certificateholders (plus, if such
Remittance Date is on the Class M-1 Cross-over Date, the
amount, if any, by which the sum of the Class A Percentage and
the Class M-1 Percentage of the Formula Principal
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Distribution Amount exceeds the sum of the Class A and Class
M-1 Principal Balances on such date), but in no event more
than the Class M-2 Principal Balance;
(iii) any Class M-2 Liquidation Loss Interest Amount;
(iv) any Unpaid Class M-2 Liquidation Loss Interest Shortfall;
9. after payment of the amounts specified in clauses (1) - (8)
above, to the Class B-1 Certificateholders as follows:
(i) any Unpaid Class B-1 Principal Shortfall;
(ii) the Class B Percentage of the Formula Principal Distribution
Amount to the Class B-1 Certificateholders (plus, if such
Remittance Date is on the Class M-2 Cross-over Date, the amount,
if any, by which the sum of the Class A, Class M-1 and Class M-2
Percentages of the Formula Principal Distribution Amount exceeds
the sum of the Class A, Class M-1 and Class M-2 Principal
Balances on such date), but in no event more than the Class B-1
Principal Balance;
(iii) any Class B-1 Liquidation Loss Interest Amount;
(iv) any Unpaid Class B-1 Liquidation Loss Interest Shortfall;
10. after payment of the amounts specified in clauses (1) - (9)
above, to the Class B-2 Certificateholders as follows:
(i) the amount in clause (a) of the definition of Class B-2 Formula
Distribution Amount;
(ii) any Unpaid Class B-2 Interest Shortfall;
(iii) any Unpaid Class B-2 Principal Shortfall;
(iv) if such Remittance Date is on or after the Class B-1 Cross-over
Date, the Class B Percentage of the Formula Principal
Distribution Amount to the Class B-2 Certificateholders (minus,
if such Remittance Date is on the Class B-1 Cross-over Date, the
amount of the Class B Percentage of the Formula Principal
Distribution Amount actually distributed to the Class B-1
Certificateholders on such date, and plus, if such Remittance
Date is on the Class B-1 Cross-over Date, the amount, if any, by
which the Formula Principal Distribution Amount exceeds the sum
of the Class A, Class M-1, Class M-2 and Class B-1 Principal
Balances on such date);
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11. if the Company or a wholly owned subsidiary of the Company is the
Servicer, after payment of the amounts specified in clauses (1) - (10)
above, to pay the Monthly Servicing Fee and any other compensation owed to
the Servicer pursuant to Section 7.02;
12. after payment of the amounts specified in clauses (1) - (11)
above, to pay the Class B-3I Distribution Amount to the Class B-3I
Certificateholders;
13. after payment of the amounts specified in clauses (1) - (12)
above, to reimburse the Class C Certificateholders for expenses incurred by
and reimbursable to them pursuant to Section 10.06; and
14. after payment of the amounts specified in clauses (1) - (13)
above, any remaining funds shall be paid to the Class C Master
Certificateholders.
b. On each Remittance Date, the Uncertificated Subsidiary Interests shall
receive distributions, to the extent of the Adjusted Amount Available, in the
following order of priority:
1. Each Class of Class A Uncertificated Subsidiary Interests shall
receive a distribution of principal in an amount equal to the amount of
principal distributed to its respective Corresponding Certificate Class
pursuant to Section 8.03(a)(6);
2. The Class M-S1 Interest shall receive a distribution of principal
in an amount equal to the amount of principal distributed to the Class M-1
Certificates pursuant to Section 8.03(a)(7);
3. The Class M-S2 Interest shall receive a distribution of principal
in an amount equal to the amount of principal distributed to the Class M-2
Certificates pursuant to Section 8.03(a)(8);
4. The Class B-S1 and Class B-S2 Interests shall receive
distributions of principal in an amount equal to the amount of principal
distributed to its respective Corresponding Certificate Class pursuant to
Section 8.03(a)(9)-(10);
5. Each Class of Uncertificated Subsidiary Interests shall receive
distributions of interest, pro rata in an amount equal to (i) 1/12th of the
Weighted Average Contract Rate times the outstanding Subsidiary Interest
Principal Balance of such Class of Uncertificated Subsidiary Interests,
plus (ii) any Unpaid Subsidiary Interest Shortfall with respect to such
Class; and
6. Any remaining Amount Available shall be distributed to the Class C
Subsidiary Certificateholders.
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On each Remittance Date the Trustee shall be deemed to deposit in the
Certificate Account, for distribution to the holders of the Certificates in the
priority set forth in Section 8.03(a), the amount distributed to the Trustee as
holder of the Uncertificated Subsidiary Interests under Section 8.04(b).
c. If the applicable Monthly Report indicates a Class M-1 Interest
Deficiency Amount, a Class M-2 Interest Deficiency Amount and/or a Class B-1
Interest Deficiency Amount for such Remittance Date, the Trustee shall withdraw
from the Certificate Account (to the extent of funds on deposit therein one
Business Day prior to such Remittance Date, after distribution of the Amount
Available pursuant to Section 8.03(a)) an amount equal to the Class M-1 Interest
Deficiency Amount, the Class M-2 Interest Deficiency Amount and the Class B-1
Interest Deficiency Amount (or the amount of such funds in the Certificate
Account, if less) and distribute such amount, first to the Class M-1
Certificateholders up to the amount of the Class M-1 Interest Deficiency Amount
(or pro rata, if such funds are less than the Class M-1 Interest Deficiency
Amount), if any, then to the Class M-2 Certificateholders up to the amount of
the Class M-2 Interest Deficiency Amount (or pro rata, if such funds are less
than the Class M-2 Interest Deficiency Amount), if any, and then to the Class B-
1 Certificateholders up to the amount of the Class B-1 Interest Deficiency
Amount (or pro rata, if such remaining funds are less than the Class B-1
Interest Deficiency Amount); provided, however, that (i) no such withdrawal
shall be made with respect to the Class M-1 Interest Deficiency Amount if the
Cumulative Realized Losses as of such Remittance Date are greater than
$156,000,000; (ii) no such withdrawal shall be made with respect to the Class M-
2 Interest Deficiency Amount if the Cumulative Realized Losses as of such
Remittance Date are greater than $130,000,000; (iii) no withdrawal with respect
to Class B-1 Interest Deficiency Amount shall be made if the Cumulative Realized
Losses as of such Remittance Date are greater than $104,000,000; (iv) no
withdrawal with respect to a Class M-1 Interest Deficiency Amount shall be made
if the aggregate withdrawals with respect to all prior Class M-1 Interest
Deficiency Amounts equal $2,400,000; (v) no withdrawal with respect to a Class
M-2 Interest Deficiency Amount shall be made if the aggregate withdrawals with
respect to all prior Class M-2 Interest Deficiency Amounts equal $2,000,000; and
(vi) no withdrawal with respect to a Class B-1 Interest Deficiency Amount shall
be made if the aggregate withdrawals with respect to all prior Class B-1
Interest Deficiency Amounts equal $1,200,000. If such applicable Monthly Report
indicates that the Class B-2 Formula Distribution Amount for such Remittance
Date exceeds the Remaining Amount Available, the Trustee shall withdraw from the
Certificate Account (to the extent of funds on deposit therein as a consequence
of a deposit made by the Company pursuant to Section 8.04(a)) an amount equal to
the Guarantee Payment and distribute such amount to the Class B-2
Certificateholders.
d. Notwithstanding the priorities set forth above, any Pre-Funded Amount
deposited in the Certificate Account shall be applied solely to pay principal of
the Class A-1 Certificates and the Class A-9 Certificates (allocated 62.69% to
Class A-1 and 37.31% to Class A-9), and any amount withdrawn from the
Capitalized Interest Account and deposited in the Certificate Account shall be
applied solely as described in Section 8.06.
e. If the Trustee shall not have received the applicable Monthly Report
by any Remittance Date, the Trustee shall distribute all funds then in the
Certificate Account to
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Certificateholders in accordance with Section 8.03(a), to the extent of such
funds, on such Remittance Date.
SECTION 8.04. Limited Guarantee.
-----------------
a. No later than the third Business Day prior to each Remittance Date,
the Servicer (if other than the Company) shall notify the Company of the amount
of the Guarantee Payment (if any) for such Remittance Date. Not later than the
Business Day preceding each Remittance Date, the Company shall deposit the
Guarantee Payment, if any, for such Remittance Date into the Certificate
Account.
b. The obligations of the Company under this Section shall not terminate
upon or otherwise be affected by a Service Transfer pursuant to Article VII of
this Agreement.
c. The obligation of the Company to provide the Limited Guarantee under
this Agreement shall terminate on the Final Remittance Date.
d. The obligation of the Company to make the Guarantee Payments described
in subsection (a) above shall be unconditional and irrevocable. The Company
acknowledges that its obligation to make the Guarantee Payments described in
subsection (a) above shall be deemed a guarantee by the Company of indebtedness
of the Trust for money borrowed from the Class B-2 Certificateholders.
e. If the Company fails to make a Guarantee Payment in whole or in part,
the Company shall promptly notify the Trustee, and the Trustee shall promptly
notify the Rating Agencies.
f. The Class C Subsidiary Certificateholders may at any time, but are not
obligated to, supplement the Company's Limited Guarantee by depositing assets in
a "qualified reserve fund," within the meaning of (S) 860G(a)(7) of the Code in
accordance with (S) 860G(d)(2)(D) of the Code.
SECTION 8.05. Company's or Servicer's Repurchase Option.
-----------------------------------------
a. Subject to the conditions in subsection (b) below, the Company or the
Servicer may repurchase all of the Contracts and all property acquired in
respect of any Contract remaining in the Trust at a price equal to the greater
of:
A. the sum of (x) 100% of the principal balance of each Contract (other
than any Contract as to which title to the underlying property has
been acquired and whose fair market value is included pursuant to
clause (y) below), plus (y) the fair market value of such acquired
property (as determined by the Company as of the close of business on
the third Business Day next preceding the date upon which notice of
any such termination is furnished to Certificateholders pursuant to
Section 12.04) or
B. the aggregate fair market value (as determined by the Company as of
the close of business on such third Business Day) of all of the assets
of the Trust,
8-9
plus, in either case, any Unpaid Class A Interest Shortfall, any Unpaid Class M-
1 Interest Shortfall, any Unpaid Class M-1 Liquidation Loss Interest Shortfall,
any Unpaid Class M-2 Interest Shortfall, any Unpaid Class M-2 Liquidation Loss
Interest Shortfall, any Unpaid Class B-1 Interest Shortfall, any Unpaid Class B-
1 Liquidation Loss Interest Shortfall and any Unpaid Class B-2 Interest
Shortfall as well as one month's interest at the applicable Contract Rate on the
Scheduled Principal Balance of each Contract (including any Contract as to which
the related Manufactured Home has been repossessed).
b. The purchase by the Company or the Servicer of all of the Contracts
pursuant to Section 8.05(a) above shall be at the option of the Company, but
shall be conditioned upon (1) the Pool Scheduled Principal Balance, at the time
of any such purchase, aggregating less than 10% of the Cut-off Date Pool
Principal Balance, (2) such purchase constituting a plan of complete liquidation
of each of the Subsidiary REMIC and the Master REMIC in accordance with Section
860F of the Code, (3) the Company or the Servicer having provided the Trustee
and the Depository (if any) with at least 30 days' written notice and (4) the
Company or the Servicer (as applicable) shall have delivered to the Trustee an
unqualified Opinion of Counsel stating that payment of the purchase price to the
Certificateholders will not constitute a voidable preference or fraudulent
transfer under the United States Bankruptcy Code. If such option is exercised,
the Company or the Servicer, as applicable, shall provide to the Trustee the
certification required by Section 12.03, which certificate shall constitute a
plan of complete liquidation of each of the Subsidiary REMIC and the Master
REMIC within the meaning of Section 860F of the Code, and the Trustee shall
promptly sign such certification and release to the Company or the Servicer, as
applicable, the Contract Files and Land-and-Home Contract Files pertaining to
the Contracts being repurchased.
SECTION 8.06. Capitalized Interest Account.
----------------------------
a. On or before the Closing Date, the Trustee shall establish the
Capitalized Interest Account on behalf of the Trust, which must be an Eligible
Account, and shall deposit therein $0 received from the Company pursuant to
Section 2.02(s). The Capitalized Interest Account shall be entitled "U.S. Bank
National Association as Trustee for the benefit of holders of Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificates Series 1999-3."
On the Remittance Date occurring in July 1999, if the Monthly Report for such
Remittance Date indicates that the Amount Available (after payment of the amount
specified in clause (1) of Section 8.03(a) and including in the Amount Available
only payments in respect of interest on the Contracts) is not sufficient to pay
the Class A Interest Distribution Amount, plus the Class M-1 Interest
Distribution Amount, plus the Class M-2 Interest Distribution Amount, plus the
Class B-1 Interest Distribution Amount, the Trustee shall withdraw the amount of
such deficiency, or the amount of funds in the Capitalized Interest Account (net
of any investment earnings thereon), if less, and shall deposit such funds in
the Certificate Account for distribution on such Remittance Date in order first
to pay any deficiency in the Amount Available to pay the Class A Interest
Distribution Amount, second to pay any deficiency in the Amount Available to pay
the Class M-1 Interest Distribution Amount, third to pay any deficiency in the
Amount Available to pay the Class M-2 Interest Distribution Amount, and fourth
to pay any deficiency in the Amount Available to pay the Class B-1 Interest
Distribution Amount.
8-10
b. The Capitalized Interest Account shall be part of the Trust but not
part of the Subsidiary REMIC or the Master REMIC. The Trustee on behalf of the
Trust shall be the legal owner of the Capitalized Interest Account. Green Tree
Finance Corp.--Two shall be the beneficial owner of the Capitalized Interest
Account, subject to the foregoing power of the Trustee to transfer amounts in
the Capitalized Interest Account to the Certificate Account. Funds in the
Capitalized Interest Account shall, at the direction of Green Tree Finance
Corp.--Two, be invested in Eligible Investments that mature no later than the
Business Day prior to the next succeeding Remittance Date. All net income and
gain from such investments shall be distributed to Green Tree Finance Corp.--Two
on such Remittance Date. All amounts earned on amounts on deposit in the
Capitalized Interest Account shall be taxable to Green Tree Finance Corp.--Two.
c. Any funds remaining in the Capitalized Interest Account after the
Remittance Date in July 1999 shall be distributed to Green Tree Finance Corp.--
Two. After such date no further amounts shall be deposited in or withdrawn from
the Capitalized Interest Account. Any losses on such investments shall be
deposited in the Capitalized Interest Account by Green Tree Finance Corp.--Two
out of its own funds immediately as realized.
SECTION 8.07 Pre-Funding Account
-------------------
a. On or before the Closing Date, the Trustee shall establish the Pre-
Funding Account on behalf of the Trust, which must be an Eligible Account. The
Pre-Funding Account shall be entitled "Pre-Funding Account, U.S. Bank National
Association as Trustee for the benefit of holders of Certificates, Series 1999-
3." The Trustee shall maintain within the Pre-Funding Account two subaccounts,
the Pre-Funding Subaccount and the Undelivered Contract Subaccount. The
Undelivered Contract Subaccount pertains to those Land-and-Home Contracts
transferred to the Trust on the Closing Date that are Undelivered Contracts.
Funds deposited in the Pre-Funding Account shall be held in trust by the Trustee
for the Holders of the Certificates for the uses and purposes set forth herein.
b. The Trustee shall deposit in the Pre-Funding Subaccount the amount
received from the Company pursuant to Section 2.02(t). Amounts on deposit in
the Pre-Funding Subaccount shall be withdrawn by the Trustee as follows:
(i) On any Subsequent Transfer Date, the Trustee shall withdraw an
amount equal to 100% of the Cut-off Date Principal Balance of each
Subsequent Contract transferred and assigned to the Trustee on such
Subsequent Transfer Date and pay such amount to or upon the order of the
Company upon satisfaction of the conditions set forth in Section 2.03(b)
with respect to such transfer and assignment.
(ii) On the Business Day immediately preceding the Post-Funding
Remittance Date, the Trustee shall deposit into the Certificate Account any
amounts remaining in the Pre-Funding Subaccount, net of investment
earnings.
8-11
c. The Trustee shall deposit in the Undelivered Contract Subaccount the
amount received from the Company pursuant to Section 2.02(u). Amounts on
deposit in the Undelivered Contract Subaccount shall be withdrawn by the Trustee
as follows:
(i) If the Company delivers the related Land-and-Home Contract File
for an Undelivered Contract to the Trustee at least two Business Days
before the last day of the Pre-Funding Period, the Trustee shall withdraw
an amount equal to 100% of the Cut-off Date Principal Balance of such
Contract and pay such amount to or upon the order of the Company.
(ii) [Reserved]
(iii) The Company shall give the Trustee telephonic notice of its
intended delivery of Land-and-Home Contract Files. The Trustee will use
reasonable efforts to process such Contract Files and remit any amount
payable for them to the Company in a timely manner.
(iv) On the Business Day immediately preceding the Post-Funding
Remittance Date, the Trustee shall deposit into the Certificate Account any
amounts remaining in the Undelivered Contract Subaccount, net of investment
earnings.
d. The Pre-Funding Account shall be part of the Trust but not part of the
Master REMIC or Subsidiary REMIC. The Trustee on behalf of the Trust shall be
the legal owner of the Pre-Funding Account. The Company shall be the beneficial
owner of the Pre-Funding Account, subject to the foregoing power of the Trustee
to transfer amounts in the Pre-Funding Account to the Certificate Account.
Funds in the Pre-Funding Account shall, at the direction of the Servicer, be
invested in Eligible Investments of the kind described in clauses (i) and
(ii)(A) of the definition of "Eligible Investment" and that mature no later than
the Business Day prior to the next succeeding Payment Date. All amounts earned
on deposits in the Pre-Funding Account shall be taxable to the Company. The
Trustee shall release to the Company all investment earnings in the Pre-Funding
Account on the Post-Funding Remittance Date.
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ARTICLE IX
THE CERTIFICATES AND UNCERTIFICATED SUBSIDIARY INTERESTS
--------------------------------------------------------
SECTION 9.01. The Certificates.
----------------
a. The Uncertificated Subsidiary Interests shall be issued as
nontransferable (except to a successor Trustee) uncertificated interests
evidencing, as to each such Class, 100% of the interest in distributions
required to made to such Class, and having the original Subsidiary Interest
Principal Balance specified with respect to such Class of Uncertificated
Subsidiary Interests. The Class C Subsidiary Certificates shall be
substantially in the form set forth in Exhibit J hereto, and shall, on original
issue, be executed by the Trustee on behalf of the Trust upon the order of the
Company. The Class C Subsidiary Certificates shall be issuable in Percentage
Interests, and shall be evidenced by a single Class C Subsidiary Certificate
issued on the Closing Date to Green Tree Finance Corp.-Two.
b. The Class A, the Class M, the Class B, the Class B-3I and the Class C
Master Certificates shall be substantially in the forms set forth in Exhibits A,
B, C-1, C-2 and K, respectively, and shall, on original issue, be executed by
the Trustee on behalf of the Trust to or upon the order of the Company. The
Class A, the Class M and the Class B Certificates shall be evidenced by (i) one
or more Class A-1 Certificates representing $22,300,000 initial aggregate
principal balance, (ii) one or more Class A-2 Certificates representing
$44,000,000 initial aggregate principal balance, (iii) one or more Class A-3
Certificates representing $57,500,000 initial aggregate principal balance, (iv)
one or more Class A-4 Certificates representing $41,000,000 initial aggregate
principal balance, (v) one or more Class A-5 Certificates representing
$100,200,000 initial aggregate principal balance, (vi) one or more Class A-6
Certificates representing $22,000,000 initial aggregate principal balance, (vii)
one or more Class A-7 Certificates representing $58,500,000 initial aggregate
principal balance, (viii) one or more Class A-8 Certificates representing
$74,500,000 initial aggregate principal balance, (ix) one or more Class A-9
Certificates representing $250,000,000 initial aggregate principal balance, (x)
one or more Class M-1 Certificates representing $42,000,000 initial aggregate
principal balance, (xi) one or more Class M-2 Certificates representing
$24,000,000 initial aggregate principal balance, (xiii) one or more Class B-1
Certificates representing $28,000,000 initial aggregate principal balance, and
(xi) one or more Class B-2 Certificates representing $36,000,000 initial
aggregate principal balance, beneficial ownership of such Classes of
Certificates to be held through Book-Entry Certificates in minimum dollar
denominations of $1,000 and integral dollar multiples of $1,000 in excess
thereof. The Class B-3I, Class C Master, and Class C Subsidiary Certificates
shall be issuable in Percentage Interests and shall be evidenced by a single
certificate issued on the Closing Date to Green Tree Finance Corp.-Two.
c. The Certificates shall be executed by manual signature on behalf of
the Trustee by a duly authorized Responsible Officer or authorized signatory.
Certificates bearing the signatures of individuals who were at any time the
proper officers of the Trustee shall bind the Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
execution and delivery of such Certificate or did not hold such offices at the
date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any
9-1
purpose, unless such Certificate has been executed by manual signature in
accordance with this Section, and such signature upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
executed and delivered hereunder. All Certificates shall be dated the date of
their execution, except for those Certificates executed on the Closing Date,
which shall be dated the Closing Date.
SECTION 9.02. Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
a. The Trustee shall keep at the office or agency to be maintained in
accordance with Section 12.02 a "Certificate Register" in which the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee initially appoints
itself to be the "Certificate Registrar" and transfer agent for the purpose of
registering Certificates and transfers and exchanges of Certificates as provided
herein. The Trustee will give prompt written notice to Certificateholders and
the Servicer of any change in the Certificate Registrar.
b. (1) Subject to clauses (2) and (3) below, no transfer of a Class B-3I
Certificate, Class C Subsidiary Certificate or Class C Master Certificate shall
be made by the Company or any other Person unless such transfer is exempt from
the registration requirements of the Securities Act of 1933 (the "Act"), as
amended, and any applicable state securities laws or is made in accordance with
the Act and laws. In the event that any such transfer is to be made, (A) the
Company may require a written Opinion of Counsel acceptable to and in form and
substance satisfactory to the Company that such transfer may be made pursuant to
an exemption, describing the applicable exemption and the basis therefor, from
the Act and laws or is being made pursuant to the Act and laws, which Opinion of
Counsel shall not be an expense of the Trustee or the Company, and (B) the
Trustee shall require the transferee to execute an investment letter
substantially in the form of Exhibit M attached hereto, which investment letter
shall not be an expense of the Trustee or the Company. Any Class B-3I
Certificateholder, Class C Subsidiary Certificateholder or Class C Master
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Company and the Certificate Registrar against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(2) No transfer of a Class M-1 Certificate, a Class M-2 Certificate, a
Class B Certificate, a Class B-3I Certificate, a Class C Subsidiary Certificate
or a Class C Master Certificate or any interest therein shall be made to any
employee benefit plan, trust or account that is subject to ERISA, or that is
described in Section 4975(e)(1) of the Code (each, a "Plan"), unless the
prospective transferee of a Certificate or interest therein provides the
Servicer and the Trustee with a certification of facts and, at its own expense,
an Opinion of Counsel which establish to the satisfaction of the Servicer and
the Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or cause the Servicer, the Company or the
Trustee to be deemed a fiduciary of such Plan or result in the imposition of an
excise tax under Section 4975 of the Code.
9-2
(3) Notwithstanding anything to the contrary contained herein, (A)
neither the Class C Subsidiary Certificate nor the Class C Master Certificate,
nor any interest therein, shall be transferred, sold or otherwise disposed of to
a "disqualified organization," within the meaning of Section 860E(e)(5) of the
Code (a "Disqualified Organization"), including, but not limited to, (i) the
United States, a state or political subdivision thereof, a foreign government,
an international organization or an agency or instrumentality of any of the
foregoing, (ii) an organization (other than a cooperative described in Section
521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code
and not subject to the tax imposed on unrelated business income by Section 511
of the Code, or (iii) a cooperative described in Section 1381(a)(2)(C) of the
Code, and (B) prior to any registration of any transfer, sale or other
disposition of the Class C Subsidiary Certificate or Class C Master Certificate,
the proposed transferee shall deliver to the Trustee, under penalties of
perjury, an affidavit that such transferee is not a Disqualified Organization,
with respect to which the Trustee shall have no actual knowledge that such
affidavit is false, and the transferor and the proposed transferee shall each
deliver for the Trustee an affidavit with respect to any other information
reasonably required by the Trustee pursuant to the REMIC Provisions, including,
without limitation, information regarding the transfer of noneconomic residual
interests and transfers of any residual interest to or by a foreign person;
provided, however, that, upon the delivery to the Trustee of an Opinion of
Counsel, in form and substance satisfactory to the Trustee and rendered by
Independent counsel, to the effect that the beneficial ownership of the Class C
Subsidiary Certificate or the Class C Master Certificate, as the case may be, by
any Disqualified Organization will not result in the imposition of federal
income tax upon the Subsidiary REMIC or the Master REMIC or any
Certificateholder or any other person or otherwise adversely affect the status
of the Subsidiary REMIC or the Master REMIC as a REMIC, the foregoing
prohibition on transfers, sales and other dispositions, as well as the foregoing
requirement to deliver a certificate prior to any registration thereof, shall,
with respect to such Disqualified Organization, terminate. Notwithstanding any
transfer, sale or other disposition of the Class C Subsidiary Certificate or
Class C Master Certificate, or any interest therein, to a Disqualified
Organization or the registration thereof in the Certificate Register, such
transfer, sale or other disposition and any registration thereof, unless
accompanied by the Opinion of Counsel described in the preceding sentence, shall
be deemed to be void and of no legal force or effect whatsoever and such
Disqualified Organization shall be deemed to not be the Class C Subsidiary or
Class C Master Certificateholder, as the case may be, for any purpose hereunder,
including, but not limited to, the receipt of distributions on the Class C
Subsidiary Certificate or Class C Master Certificate, and shall be deemed to
have no interest whatsoever in the Class C Subsidiary Certificate or Class C
Master Certificate. Each Class C Subsidiary or Class C Master
Certificateholder, by his acceptance thereof, shall be deemed for all purposes
to have consented to the provisions of this Section 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the
provisions of this Section 9.02(b) shall be deemed to be void and of no legal
force or effect whatsoever and such transferee shall be deemed to not be the
Certificateholder for any purpose hereunder, including, but not limited to, the
receipt of distributions on such Certificate, and shall be deemed to have no
interest whatsoever in such Certificate.
9-3
(5) The Trustee shall give notice to the Rating Agencies promptly
following any transfer, sale or other disposition of a Class B-3I, Class C
Subsidiary or Class C Master Certificate.
c. At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of authorized denominations of a like aggregate original
denomination, upon surrender of such Certificates to be exchanged at such
office. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for transfer or exchange shall be duly endorsed by, or shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder thereof or his or her attorney
duly authorized in writing.
d. Except as provided in paragraph (e) below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of the Class A, Class M-1, Class M-
2, Class B-1 and Class B-2 Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership and
transfers of such Class A, Class M-1, Class M-2, Class B-1 and Class B-2
Certificates; (iii) ownership and transfers of registration of the Class A,
Class M-1, Class M-2, Class B-1 and Class B-2 Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Class A, Class M-1, Class M-2,
Class B-1 and Class B-2 Certificates for purposes of exercising the rights of
Holders under this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Trustee may rely and shall
be fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
e. If (x) the Company or the Depository advises the Trustee in writing
that the Depository is no longer willing or able properly to discharge its
responsibilities as Depository and (y) the Trustee or the Company is unable to
locate a qualified successor or (z) the Company at its sole option advises the
Trustee in writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
definitive, fully registered Class A Certificates, Class M Certificates and
Class B Certificates (the "Definitive Certificates") to
9-4
Certificate Owners requesting the same. Upon surrender to the Trustee of the
Class A Certificates, Class M Certificates and Class B Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. Neither the
Company nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Depository shall be
deemed to be imposed upon and performed by the Trustee, to the extent applicable
with respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
f. On or prior to the Closing Date, there shall be delivered to the
Depository one Class A-1 Certificate, one Class A-2 Certificate, one Class A-3
Certificate, one Class A-4 Certificate, one Class A-5 Certificate, one Class A-6
Certificate, one Class A-7 Certificate, one Class A-8 Certificate, two Class A-9
Certificates, one Class M-1 Certificate, one Class M-2 Certificate, one Class B-
1 Certificate and one Class B-2 Certificate, each in registered form registered
in the name of the Depository's nominee, Cede & Co., the total face amount of
which represents 100% of the related Original Principal Balance, respectively.
If, however, the aggregate principal amount of a Class of Class A Certificates,
or the Class of M-1 Certificates or a Class of Class B Certificates exceeds
$200,000,000, one Class A Certificate and/or one Class M-1 Certificate and/or
one Class B Certificate will be issued with respect to each $200,000,000 of
principal amount and an additional Certificate of such Class or Classes will be
issued with respect to any remaining principal amount. Each such Class A, Class
M-1, Class M-2, Class B-1 and Class B-2 Certificate registered in the name of
the Depository's nominee shall bear the following legend:
"Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
SECTION 9.03. No Charge; Disposition of Void Certificates.
-------------------------------------------
No service charge shall be made to a Certificateholder for any transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates. All Certificates
surrendered for transfer and exchange shall be disposed of in a manner approved
by the Trustee.
9-5
SECTION 9.04. Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar and the Trustee such security or indemnity as may be
required by each to save it harmless, then in the absence of notice to the
Certificate Registrar or the Trustee that such Certificate has been acquired by
a bona fide purchaser, the Trustee shall execute and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and original denomination. Upon the issuance of any
new Certificate under this Section 9.04, the Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. Any
duplicate Certificate issued pursuant to this Section 9.04 shall constitute
complete and indefeasible evidence of ownership of the Percentage Interest, as
if originally issued, whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time.
SECTION 9.05. Persons Deemed Owners.
---------------------
Prior to due presentation of a Certificate for registration of transfer,
the Servicer, the Company, the Trustee, the Paying Agent and the Certificate
Registrar may treat the person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving remittances pursuant
to Section 8.01 and for all other purposes whatsoever, and none of the Servicer,
the Company, the Trustee, the Certificate Registrar, the Paying Agent or any
agent of the Servicer, the Company, the Trustee, the Paying Agent or the
Certificate Registrar shall be affected by notice to the contrary.
SECTION 9.06. Access to List of Certificateholders' Names and Addresses.
---------------------------------------------------------
The Certificate Registrar will furnish to the Trustee and the Servicer,
within five days after receipt by the Certificate Registrar of a request
therefor from the Trustee in writing, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Certificateholders as of
the most recent Record Date. If Holders of Certificates evidencing, as to any
Class, Percentage Interests representing 25% or more (hereinafter referred to as
"Applicants") apply in writing to the Trustee, and such application states that
the Applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such Applicants access during normal business hours to
the most recent list of Certificateholders held by the Trustee. If such list is
as of a date more than 90 days prior to the date of receipt of such Applicants'
request, the Trustee shall promptly request from the Certificate Registrar a
current list as provided above, and shall afford such Applicants access to such
list promptly upon receipt. Every Certificateholder, by receiving and holding a
Certificate, agrees with the Certificate Registrar and the Trustee that none of
the Company, the Certificate Registrar or the Trustee shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
9-6
SECTION 9.07. Authenticating Agents.
---------------------
The Trustee may appoint one or more Authenticating Agents with power to act
on its behalf and subject to its direction in the execution and delivery of the
Certificates. For all purposes of this Agreement, the execution and delivery of
Certificates by the Authenticating Agent pursuant to this Section shall be
deemed to be the execution and delivery of Certificates "by the Trustee."
9-7
ARTICLE X
INDEMNITIES
-----------
SECTION 10.01. Company's Indemnities.
---------------------
The Company will defend and indemnify the Trust, the Trustee (including the
Custodian, the Paying Agent and any other agents of the Trustee) and the
Certificateholders against any and all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of counsel and expenses
of litigation of any third-party claims (i) arising out of or resulting from the
origination of any Contract (including but not limited to truth in lending
requirements) or the servicing of such Contract prior to its transfer to the
Trust (but only to the extent such cost, expense, loss, damage, claim or
liability is not provided for by the Company's repurchase of such Contract
pursuant to Section 3.05) or (ii) arising out of or resulting from the use or
ownership of any Manufactured Homes by the Company or the Servicer or any
Affiliate of either. Notwithstanding any other provision of this Agreement, the
obligation of the Company under this Section shall not terminate upon a Service
Transfer pursuant to Article VII, except that the obligation of the Company
under this Section shall not relate to the actions of any subsequent Servicer
after a Service Transfer.
SECTION 10.02. Liabilities to Obligors.
-----------------------
No obligation or liability to any Obligor under any of the Contracts is
intended to be assumed by the Trust or the Certificateholders under or as a
result of this Agreement and the transactions contemplated hereby and, to the
maximum extent permitted and valid under mandatory provisions of law, the Trust
and the Certificateholders expressly disclaim such assumption.
SECTION 10.03. Tax Indemnification.
-------------------
The Company agrees to pay, and to indemnify, defend and hold harmless the
Trust, the Trustee (including the Custodian, the Paying Agent and any other
agents of the Trustee) and the Certificateholders from, any taxes which may at
any time be asserted with respect to, and as of the date of, the transfer of the
Contracts to the Trust, including, without limitation, any sales, gross
receipts, general corporation, personal property, privilege or license taxes
(but not including any federal, state or other taxes arising out of the creation
of the Trust and the issuance of the Certificates), any tax imposed on the Trust
as a result of the Company's repurchase of any Contract pursuant to Section
3.05(c), and costs, expenses and reasonable counsel fees in defending against
the same, whether arising by reason of the acts to be performed by the Company,
the Servicer or the Trustee under this Agreement or imposed against the Trust, a
Certificateholder or otherwise.
SECTION 10.04. Servicer's Indemnities.
----------------------
The Servicer shall defend and indemnify the Trust, the Trustee (including
the Custodian, the Paying Agent and any other agents of the Trustee) and the
Certificateholders against any and all costs, expenses, losses, damages, claims
and liabilities, including reasonable fees and expenses of
10-1
counsel and expenses of litigation, in respect of any action taken or omitted to
be taken by the Servicer with respect to any Contract. This indemnity shall
survive any Service Transfer (but the original Servicer's obligations under this
Section 10.04 shall not relate to any actions of any subsequent Servicer after a
Service Transfer) and any payment of the amount owing under, or any repurchase
by the Company of, any such Contract.
SECTION 10.05. Operation of Indemnities.
------------------------
Indemnification under this Article shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Company or the Servicer has made any indemnity payments to the Trustee pursuant
to this Article and the Trustee thereafter collects any of such amounts from
others, the Trust will repay such amounts collected to the Company or the
Servicer, as the case may be, without interest.
SECTION 10.06. REMIC Tax Matters.
-----------------
If Class C Subsidiary Certificateholders or Class C Master
Certificateholders, pursuant to Section 6.06, pay any taxes or charges imposed
upon the Subsidiary REMIC or the Master REMIC, as the case may be, as a REMIC or
otherwise, such taxes or charges, except to the extent set forth in the
following proviso, shall be expenses and costs of the Trust and the Class C
Subsidiary Certificateholders or Class C Master Certificateholders shall be
entitled to be reimbursed therefor out of the Certificate Account as provided in
Section 8.03; provided, however, that any such taxes or charges shall not be
expenses or costs of the Trust, nor will the Class C Subsidiary
Certificateholders or Class C Master Certificateholders be entitled to
reimbursement therefor out of the Certificate Account, if and to the extent that
such taxes or charges resulted from a failure by the Company, the Trustee or any
Servicer to comply with the provisions of Section 2.04.
10-2
ARTICLE XI
THE TRUSTEE
-----------
SECTION 11.01. Duties of Trustee.
-----------------
The Trustee, prior to the occurrence of an Event of Termination and after
the curing of all Events of Termination which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Termination has occurred (which has not been cured),
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform as to form to the requirements of this Agreement.
Subject to Section 11.03, no provision of this Agreement shall be construed
to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however, that:
a. Prior to the occurrence of an Event of Termination, and after the
curing of all such Events of Termination which may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement;
b. The Trustee shall not be liable for an error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
c. The 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 Certificateholders with aggregate Percentage Interests
representing 25% or more of the Trust relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement; and
d. The Trustee shall not be charged with knowledge of any event referred
to in Section 7.01 unless a Responsible Officer of the Trustee at the Corporate
Trust Office obtains actual knowledge of such event or the Trustee receives
written notice of such event from the Servicer or
11-1
the Holders of Certificates evidencing, as to any Class, Percentage Interests
representing 25% or more.
None of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Company or the Servicer under this Agreement,
except during such time, if any, as the Trustee shall be the successor to, and
be vested with the rights, duties, powers and privileges of, the Servicer in
accordance with the terms of this Agreement. The Trustee shall not be required
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 11.02. Certain Matters Affecting the Trustee.
-------------------------------------
Except as otherwise provided in Section 11.01:
a. The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate, certificate of a
Servicing Officer, 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;
b. The Trustee may consult with counsel and any opinion of any counsel
for the Company or the Servicer 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 Opinion of Counsel;
c. The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or direction
of any of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; provided, however, that nothing contained herein
shall relieve the Trustee of the obligations, upon the occurrence of an Event of
Termination (which has not been cured), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
d. Prior to the occurrence of an Event of Termination and after the
curing of all Events of Termination which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing, as to any
Class, Percentage Interests
11-2
representing 25% or more; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such cost, expense or liability as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the Servicer or,
if paid by the Trustee, shall be reimbursed by the Servicer upon demand; and
e. The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and shall not be liable for any acts or omissions of
such agents, attorneys or custodians if appointed by it with due care hereunder.
SECTION 11.03. Trustee Not Liable for Certificates or Contracts.
------------------------------------------------
The Trustee assumes no responsibility for the correctness of the recitals
contained herein or in the Certificates (other than the Trustee's execution
thereof). The Trustee makes no representations as to the validity or
sufficiency of this Agreement, of the Certificates (other than its execution
thereof) or of any Contract, Contract File, Land-and-Home Contract File or
related document. The Trustee shall not be accountable for the use or
application by the Servicer or the Company of funds paid to the Company in
consideration of conveyance of the Contracts to the Trust by the Company or
deposited into or withdrawn from the Certificate Account by the Servicer.
SECTION 11.04. Rights of Certificateholders to Direct Trustee and to
-----------------------------------------------------
Waive Event of Termination.
--------------------------
Holders of each Class of Class A Certificates, Holders of Class M-1
Certificates, Holders of Class M-2 Certificates and Holders of Class B-1
Certificates evidencing, as to each such Class, Percentage Interests
representing 25% or more shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, however, that,
subject to Section 11.01, the Trustee shall have the right to decline to follow
any such direction if the Trustee being advised by counsel determines that the
action so directed may not lawfully be taken, or if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceedings so directed would be illegal or involve it in personal liability or
be unduly prejudicial to the rights of Certificateholders not parties to such
direction; and provided further that nothing in this Agreement shall impair the
right of the Trustee to take any action deemed proper by the Trustee and which
is not inconsistent with such direction by the Certificateholders; and provided
further that the Trustee shall instead follow the directions of Holders of each
Class of Class A Certificates, Holders of Class M-1 Certificates, Holders of
Class M-2 Certificates and Holders of Class B-1 Certificates evidencing, as to
each such Class, Percentage Interests aggregating 51% or more whenever it
receives conflicting directions from each Class of Class A Certificateholders,
Class M-1 Certificateholders, Class M-2 Certificateholders and Class B-1
Certificateholders. Holders of each Class of Class A Certificates, Holders of
Class M-1 Certificates and, Class M-2 Certificates and Holders of Class B-1
Certificates
11-3
evidencing, as to each such Class, Percentage Interests representing 51% or more
may on behalf of Certificateholders waive any past Event of Termination
hereunder and its consequences, except a default in respect of a covenant or
------
provision hereof which under Section 12.07 cannot be modified or amended without
the consent of all Certificateholders, and upon any such waiver, such Event of
Termination shall cease to exist and shall be deemed to have been cured for
every purpose of this Agreement; but no such waiver shall extend to any
subsequent or other Event of Termination or impair any right consequent thereon.
Following the Class M-2 Cross-over Date, if all distributions payable to the
Class A Certificateholders and the Class M-2 Certificateholders have either been
made or provided for in accordance with this Agreement, then the Holders of
Class B-1 Certificates may exercise the rights given to the Class A
Certificateholders, the Class M-1 Certificateholders and the Class M-2
Certificateholders under this Section.
SECTION 11.05. The Servicer to Pay Trustee's Fees and Expenses.
-----------------------------------------------
The Servicer agrees:
a. to pay to the Trustee reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
b. except as otherwise expressly provided herein, to reimburse the
Trustee, to the extent requested by the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
c. to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust and its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
All such payments by the Servicer shall be made from its own funds. The
covenants in this Section 11.05 shall be for the benefit of the Trustee in its
capacities as Trustee, Paying Agent and Certificate Registrar hereunder, and
shall survive the termination of this Agreement.
SECTION 11.06. Eligibility Requirements for Trustee.
------------------------------------
The Trustee hereunder shall at all times be a financial institution
organized and doing business under the laws of the United States of America or
any State, authorized under such laws to exercise corporate trust powers and a
Title I approved lender pursuant to FHA Regulations, shall not be an Affiliate
of the Company, and shall have 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 $50,000,000, provided that the Trustee's
separate capital and surplus shall at all
11-4
times be at least the amount required by Section 310(a)(2) of the Trust
Indenture Act of 1939, as amended. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of a supervising or
examining authority, then for the purposes of this Section 11.06, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
addition, the Trustee shall at all times have a long-term deposit rating (or, if
the Trustee is a wholly owned subsidiary of a bank holding company system and
not rated, the bank holding company shall have a long-term senior unsecured debt
rating) from Standard & Poor's of at least BBB or as shall be otherwise
acceptable to Standard & Poor's and a rating from Fitch (if rated by Fitch) of
at least BBB or as shall be otherwise acceptable to Fitch. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 11.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.07.
SECTION 11.07. Resignation or Removal of Trustee.
---------------------------------
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Servicer and the Company. A
copy of any such notice shall be sent to the Rating Agencies. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to each of the Servicer and the Company and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 11.06 and shall fail to resign after written request
therefor by the Company, or if at any time the Trustee shall be legally unable
to act, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Company may remove the
Trustee. If the Company shall have removed the Trustee under the authority of
the immediately preceding sentence, the Company shall promptly appoint a
successor Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor Trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 11.07 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 11.08.
SECTION 11.08. Successor Trustee.
-----------------
Any successor Trustee appointed as provided in Section 11.07 shall execute,
acknowledge and deliver to the Servicer, the Company 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 conveyance, shall
11-5
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee. The
predecessor Trustee shall deliver or cause to be delivered to the successor
Trustee the Contracts, Contract Files and Land-and-Home Contract Files and any
related documents and statements held by it hereunder; and, if the Land-and-Home
Contract Files are then held by a custodian pursuant to a custodial agreement,
the predecessor Trustee and the custodian shall amend such custodial agreement
to make the successor Trustee the successor to the predecessor Trustee
thereunder; and the Servicer, the Company and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section
11.08 unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 11.06.
Upon acceptance of appointment by a successor ▇▇▇▇▇▇▇ as provided in this
Section 11.08, the Servicer shall cause notice of the succession of such Trustee
hereunder to be mailed to each Certificateholder at their addresses as shown in
the Certificate Register. If the Servicer fails to mail such notice within ten
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Servicer.
SECTION 11.09. Merger or Consolidation of Trustee.
----------------------------------
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Person shall be eligible under the provisions
of Section 11.06, 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. The Trustee shall promptly notify the Rating Agencies in the
event it is a party to any merger, conversion or consolidation.
SECTION 11.10. Tax Returns.
-----------
Upon the Servicer's request, the Trustee will furnish the Servicer with all
such information as the Servicer may reasonably require in connection with
preparing all tax returns of the Subsidiary REMIC and the Master REMIC and the
Trustee shall execute such returns.
SECTION 11.11. Obligor Claims.
--------------
In connection with any offset defenses, or affirmative claims for recovery,
asserted in legal actions brought by Obligors under one or more Contracts based
upon provisions therein complying with, or upon other rights or remedies arising
from, any legal requirements applicable to the
11-6
Contracts, including, without limitation, the Federal Trade Commission's Trade
Regulation Rule Concerning Preservation of Consumers' Claims and Defenses (16
C.F.R. (S) 433) as amended from time to time:
a. The Trustee is not, and shall not be deemed to be, either in any
individual capacity, as trustee hereunder or otherwise, a creditor, or a
joint venturer with or an Affiliate of, or acting in concert or cooperation
with, any seller of home improvements, in the arrangement, origination or
making of Contracts. The Trustee is the holder of the Contracts only as
trustee on behalf of the Certificateholders, and not as a principal or in
any individual or personal capacity;
b. The Trustee shall not be personally liable for or obligated to
pay Obligors any affirmative claims asserted thereby, or responsible to
Certificateholders for any offset defense amounts applied against Contract
payments, pursuant to such legal actions;
c. The Trustee will pay, solely from available Trust monies,
affirmative claims for recovery by Obligors only pursuant to final judicial
orders or judgments, or judicially approved settlement agreements,
resulting from such legal actions;
d. The Trustee will comply with judicial orders and judgments which
require its actions or cooperation in connection with Obligors' legal
actions to recover affirmative claims against Certificateholders.
e. The Trustee will cooperate with and assist Certificateholders in
their defense of legal actions by ▇▇▇▇▇▇▇▇ to recover affirmative claims if
such cooperation and assistance is not contrary to the interests of the
Trustee as a party to such legal actions and if the Trustee is
satisfactorily indemnified for all liability, costs and expenses arising
therefrom; and
f. The Company hereby agrees to indemnify, hold harmless and defend
the Trustee, Certificateholders from and against any and all liability,
loss, costs and expenses of the Trustee, Certificateholders resulting from
any affirmative claims for recovery asserted or collected by Obligors under
the Contracts. Notwithstanding any other provision of this Agreement, the
obligation of the Company under this Section 11.11(f) shall not terminate
upon a Service Transfer pursuant to Article VII.
SECTION 11.12. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
The Company shall have the power from time to time to appoint one or more
persons or corporations to act either as co-trustees jointly with the Trustee,
or as separate trustees, or as custodians, for the purpose of conforming to any
legal requirement, restriction or condition (i) with respect to the holding of
the Contracts, the Contract Files and the Land-and-Home Contract Files or (ii)
with respect to the enforcement of a Contract in any state in which a
Manufactured Home is located or in any state in which any portion of the Trust
is located. The separate trustees, co-trustees, or custodians so appointed
shall be trustees or custodians for the benefit of all Certificateholders and
11-7
shall, subject to the provisions of the following paragraph, have such powers,
rights and remedies as shall be specified in the instrument of appointment;
provided, however, that no such appointment shall, or shall be deemed to,
constitute the appointee an agent of the Trustee.
Every separate trustee, co-trustee and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(A) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of monies shall be
exercised solely by the Trustee;
(B) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee, to the extent also imposed upon such separate
trustees, co-trustees or custodians, shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee, co-
trustee, or custodian jointly, except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including
holding of the Trust or any portion thereof in any such jurisdiction) shall
be exercised and performed by such separate trustee, co-trustee, or
custodian;
(C) no separate trustee, co-trustee or custodian hereunder shall be
personally liable by reason of any act or omission of any other separate
trustee, co-trustee or custodian hereunder; and
(D) the Company may at any time accept the resignation of or remove
any separate trustee, co-trustee or custodian, so appointed by it.
If any separate trustee, co-trustee or custodian shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee or custodian. The reasonable fees and expenses of any such separate
trustee, co-trustee or custodian shall be treated as additional fees and
expenses of the Trustee subject to Section 11.05 and payable by the Servicer if
and only to the extent the Servicer shall have consented in writing to his or
its appointment, which consent shall not be unreasonably withheld.
SECTION 11.13. Agents of Trustee.
-----------------
To the extent not prohibited by law and not inconsistent with the
terms of this Agreement (including, without limitation, Section 11.12), the
Trustee may, with the prior consent of the Company, appoint one or more agents
to carry out ministerial matters on behalf of the Trustee under this Agreement.
11-8
ARTICLE XII
MISCELLANEOUS
-------------
SECTION 12.01. Servicer Not to Assign Duties or Resign; Delegation of
------------------------------------------------------
Servicing Functions.
-------------------
The Servicer may not sell or assign its rights and duties as Servicer
hereunder, except as expressly provided for herein, provided that the Servicer
may pledge or assign the right to receive all or any portion of the Monthly
Servicing Fee payable to it. The Servicer shall not resign from the obligations
and duties hereby imposed on it except upon determination that the performance
of its duties hereunder is no longer permissible under applicable law or is in
material conflict by reason of applicable law with any other activities carried
on by it. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel for the Servicer to such effect
addressed and delivered to the Trustee. No such resignation shall become
effective until the Trustee or a successor servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Sections
7.02 and 7.03.
Notwithstanding the foregoing:
a. Any person into which the Servicer may be merged or consolidated,
or any corporation resulting from any merger, conversion or consolidation
to which the Servicer shall be a party, or any Person succeeding to the
business of the Servicer, shall be the successor of the Servicer hereunder,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
to the Servicer shall satisfy the criteria set forth in the definition of
an Eligible Servicer. The Servicer shall promptly notify the Rating
Agencies of any such merger to which it is a party.
b. The Company, if it is the Servicer, may delegate some or all of
its servicing duties to a wholly owned subsidiary of the Company, for so
long as said subsidiary remains, directly or indirectly, a wholly owned
subsidiary of the Company. Notwithstanding any such delegation the Company
shall retain all of the rights and obligations of the Servicer hereunder.
SECTION 12.02. Maintenance of Office or Agency.
-------------------------------
The Trustee will maintain in St. ▇▇▇▇, Minnesota, an office or agency where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustee in respect of the Certificates
and this Agreement may be served. On the date hereof the Trustee's office for
such purposes is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇. The Trustee will give prompt written notice to
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
12-1
SECTION 12.03. Termination.
-----------
a. This Agreement shall terminate (after distribution of all amounts due
to Certificateholders pursuant to Sections 8.01 and 8.03) on the earlier of (a)
the Remittance Date on which the Pool Scheduled Principal Balance is reduced to
zero and all amounts payable to Certificateholders on such Remittance Date have
been distributed to Certificateholders or (b) the Remittance Date on which the
Company or the Servicer repurchases the Contracts pursuant to Section 8.05;
provided, 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
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St.
▇▇▇▇▇, living on the date hereof; and provided further, that the Servicer's and
the Company's representations and warranties and indemnities by the Company and
the Servicer shall survive termination.
b. Notice of any termination, specifying the Final Remittance Date (which
shall be a date that would otherwise be a Remittance Date) upon which all
Certificateholders may surrender their Certificates to the Company for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee (upon direction by the Company ten days prior to the date such notice is
to be mailed) by letter to the Rating Agencies and the Certificateholders mailed
no later than the fifth Business Day of the month of the Final Remittance Date
specifying (1) the Final Remittance Date upon which final payment on the
Certificates will be made upon presentation and surrender of Certificates at the
office or agency of the Company therein designated; (2) the amount of any such
final payment; and (3) that the Record Date otherwise applicable to such
Remittance Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office or agency of the Company therein
specified. Any notice of purchase of Contracts by the Company pursuant to
Section 8.05 shall constitute the adoption by the Trustee on behalf of the
Certificateholders of a plan of complete liquidation of the Subsidiary REMIC and
the Master REMIC within the meaning of Section 860F of the Code on the date such
notice is given when signed by the Trustee. Each such notice shall, to the
extent required by the REMIC Provisions or other applicable law, be signed on
behalf of the Subsidiary REMIC and the Master REMIC by the Trustee. The Trustee
shall give such notice to the Certificate Registrar at the time such notice is
given to the Certificateholders. In the event such notice is given in
connection with the Company's election to purchase the Contracts, the Company
shall deposit in the Certificate Account on the Final Remittance Date in
immediately available funds an amount equal to the above-described purchase
price and upon such deposit Certificateholders will be entitled to the amount of
such purchase price but not amounts in excess thereof, all as provided herein.
Upon certification to the Trustee by a Servicing Officer, following such final
deposit the Trustee shall promptly release to the Company the Contract Files for
the remaining Contracts, and the Trustee shall execute all assignments,
endorsements and other instruments necessary to effectuate such transfer.
c. Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed from the Certificate Account, in the following order of
priority, to Certificateholders on the Final Remittance Date in proportion to
their respective Percentage Interests an amount equal to (i) as to Class A
Certificates, the Class A-1 Principal Balance, the Class A-2 Principal Balance,
the Class A-3 Principal Balance, the Class A-4 Principal Balance, the Class A-5
Principal Balance, the
12-2
Class A-6 Principal Balance, the Class A-7 Principal Balance, the Class A-8
Principal Balance, and the Class A-9 Principal Balance, together with any Unpaid
Class A Interest Shortfall and one month's interest at the related Remittance
Rate on the related Class, respectively (calculated in the manner specified in
Section 1.03), (ii) as to Class M-1 Certificates, the Class M-1 Principal
Balance together with any Unpaid Class M-1 Interest Shortfall, any Unpaid Class
M-1 Liquidation Loss Interest Shortfall and one month's interest at the Class M-
1 Remittance Rate on the Class M-1 Principal Balance, (iii) as to Class M-2
Certificates, the Class M-2 Principal Balance together with any Unpaid Class M-2
Interest Shortfall, any Unpaid Class M-2 Liquidation Loss Interest Shortfall and
one month's interest at the Class M-2 Remittance Rate on the Class M-2 Principal
Balance, (iv) as to Class B-1 Certificates, the Class B-1 Principal Balance
together with any Unpaid Class B-1 Interest Shortfall, any Unpaid Class B-1
Liquidation Loss Interest Shortfall and one month's interest at the Class B-1
Remittance Rate on the Class B-1 Principal Balance, (v) as to Class B-2
Certificates, the Class B-2 Principal Balance together with any Unpaid Class B-2
Interest Shortfall and one month's interest at the Class B-2 Remittance Rate on
the Class B-2 Principal Balance, (vi) as to Class B-3I Certificates, any Unpaid
Class B-3I Shortfall, and (vii) as to Class C Master Certificates, the amount
which remains on deposit in the Certificate Account (other than amounts retained
to meet claims) after application pursuant to clauses (i), (ii), (iii), (iv),
(v) and (vi) above; provided that any Guarantee Payment deposited in the
Certificate Account shall be distributed only to the Class B-2
Certificateholders. The distribution on the Final Remittance Date shall be in
lieu of the distribution otherwise required to be made on such Remittance Date
in respect of each Class of Certificates.
d. In the event that all of the Certificateholders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Company shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
three months after the second notice all the Certificates shall not have been
surrendered for cancellation, the Company shall transfer to itself all amounts
remaining on deposit in the Certificate Account, to hold in trust for
Certificateholders who have not surrendered their Certificates for cancellation,
together with the final record list of Certificateholders, and the Company shall
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain in trust hereunder.
e. Each Certificateholder hereby irrevocably approves and appoints the
Trustee as its attorney-in-fact for the purposes of adoption of the plan of
complete liquidation.
SECTION 12.04. Acts of Certificateholders.
--------------------------
a. Except as otherwise specifically provided herein, whenever
Certificateholder approval, authorization, direction, notice, consent, waiver or
other action is required hereunder, such approval, authorization, direction,
notice, consent, waiver or other action shall be deemed to have been given or
taken on behalf of, and shall be binding upon, all Certificateholders if agreed
to by
12-3
Holders of Certificates of the specified Class or Classes evidencing, as to each
such Class, Percentage Interests aggregating 51% or more.
b. Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where required, to the Servicer. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and (subject to Section 11.01)
conclusive in favor of the Trustee, the Servicer and the Company if made in the
manner provided in this Section.
c. The fact and date of the execution by any Certificateholder of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
d. The ownership of Certificates shall be proved by the Certificate
Register.
e. Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done by the Trustee,
the Servicer or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
f. The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
SECTION 12.05. Calculations.
------------
Except as otherwise provided in this Agreement, all interest rate and basis
point calculations under this Agreement will be made on the basis of a 360-day
year and twelve 30-day months and will be carried out to at least three decimal
places.
SECTION 12.06. Assignment or Delegation by Company.
-----------------------------------
Except as specifically authorized hereunder, and except for its obligations
as Servicer which are dealt with under Article V and Article VII, the Company
may not convey and assign or delegate any of its rights or obligations hereunder
absent the prior written consent of Holders of Certificates of each Class
evidencing, as to each such Class, Percentage Interests aggregating 66 2/3% or
more, and any attempt to do so without such consent shall be void. It is
understood that the foregoing does not prohibit the pledge or assignment by the
Company of any right to payment pursuant to Article VIII.
12-4
Notwithstanding the foregoing, any person into which the Company may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Company shall be a party, or any Person succeeding
to the business of the Company, shall be the successor of the Company hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. The
Company shall promptly notify the Rating Agencies of any such merger to which it
is a party.
SECTION 12.07. Amendment.
---------
a. This Agreement may be amended from time to time by the Company, the
Servicer and the Trustee, without the consent of any of the Certificateholders,
to correct manifest error, to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein, as
the case may be, to make such changes as are necessary to maintain the status of
each of the Subsidiary REMIC and the Master REMIC as a "real estate mortgage
investment conduit" under the REMIC Provisions of the Code or to otherwise
effectuate the benefits of such status to the Subsidiary REMIC, the Master REMIC
and the Certificateholders, including, without limitation, to implement any
provision permitted by law that would enable a REMIC to avoid the imposition of
any tax, to add or amend any provision as required by the Rating Agencies, or
any other nationally recognized statistical rating organization in order to
improve or maintain the rating of any Class of Class A Certificates, Class M
Certificates, or Class B Certificates, or to make any other provisions with
respect to matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; provided, however, that such
action shall not, as evidenced by an Opinion of Counsel for the Company,
adversely affect in any material respect the interests of any Certificateholder.
b. This Agreement may also be amended from time to time by the Servicer,
the Company and the Trustee, with the consent of Holders of Certificates of each
Class affected thereby evidencing, as to each such Class, Percentage Interests
aggregating 51% or more, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Certificateholders; provided, however,
that no such amendment shall (a) reduce in any manner the amount of, or delay
the timing of, collections of payments on the Contracts or distributions which
are required to be made on any Certificate, (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Certificates then outstanding, (c) result in the disqualification of the
either the Subsidiary REMIC or the Master REMIC as a REMIC under the Code, (d)
adversely affect the status of either the Subsidiary REMIC or the Master REMIC
as a REMIC or the status of the Regular Certificates as "regular interests" in
the Master REMIC or (e) cause any tax (other than any tax imposed on "net income
from foreclosure property" under Section 860G(c)(1) of the Code that would be
imposed without regard to such amendment) to be imposed on the Trust, including,
without limitation, any tax imposed on "prohibited transactions" under Section
860F(a)(1) of the Code or on "contributions after the startup date" under
Section 860G(d)(1) of the Code. This Agreement may not be amended without the
consent of all Class C Certificateholders, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement which would modify in any manner the rights of the Class C
Certificateholders.
12-5
c. This Agreement shall not be amended under this Section without the
consent of 100% of Certificateholders if such amendment would result in the
disqualification of either Subsidiary REMIC or the Master REMIC as a REMIC under
the Code.
d. Concurrently with the solicitation of any consent pursuant to this
Section 12.07, the Trustee shall furnish written notification to the Rating
Agencies of such solicitation. Promptly after the execution of any amendment
pursuant to this Section 12.07, the Trustee shall furnish written notification
of the substance of such amendment to the Rating Agencies and each
Certificateholder.
e. It shall not be necessary for the consent of Certificateholders under
this Section 12.07 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
f. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement or otherwise.
g. In connection with any amendment pursuant to this Section, the Trustee
shall be entitled to receive an unqualified Opinion of Counsel to the Servicer
to the effect that such amendment is authorized or permitted by the Agreement.
h. In the absence of the consent described in subsection (c) of this
Section, in connection with any amendment pursuant to this Section, the Trustee
shall have received an unqualified Opinion of Counsel, the expense of which
shall not be an expense of the Trust, stating that any such amendment (i) will
not adversely affect the status of the Subsidiary REMIC or the Master REMIC as a
REMIC or the status of the Regular Certificates as "regular interests" in the
Master REMIC, and (ii) will not cause any tax (other than any tax imposed on
"net income from foreclosure property" under Section 860G(c)(1) of the Code that
would be imposed without regard to such amendment) to be imposed on the Trust,
including, without limitation, any tax imposed on "prohibited transactions"
under Section 860F(a)(1) of the Code or on "contributions after the startup
date" under Section 860G(d)(1) of the Code.
i. Upon the execution of any amendment or consent pursuant to this
Section 12.07, this Agreement shall be modified in accordance therewith, and
such amendment or consent shall form a part of this Agreement for all purposes,
and every Certificateholder hereunder shall be bound thereby.
SECTION 12.08. Notices.
-------
All communications and notices pursuant hereto to the Servicer, the Company
and the Trustee shall be in writing and delivered or mailed to it at the
appropriate following address:
12-6
If to the Company or the Servicer:
Green Tree Financial Corporation
1100 Landmark Towers
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-1639
Attention: Chief Financial Officer
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Standard & Poor's:
Standard & Poor's Rating Services,
a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Surveillance Group
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Fitch:
Fitch IBCA, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ABS Surveillance Group
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a Certificateholder shall
be in writing and delivered or mailed at the address shown in the Certificate
Register.
SECTION 12.09. Merger and Integration.
----------------------
Except as specifically stated otherwise herein, this Agreement sets forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings,
12-7
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 12.10. Headings.
--------
The headings herein are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
SECTION 12.11. Governing Law.
-------------
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Minnesota.
12-8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
27/th/ day of May, 1999.
GREEN TREE FINANCIAL CORPORATION
By:_________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Senior Vice President and Controller
U.S. BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Trustee
By:_________________________________________
▇. ▇▇▇▇▇▇
Its: Vice President
12-9
EXHIBIT A
---------
FORM OF CLASS A CERTIFICATE
---------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
Class A-[1][2][3][4][5][6][7][8][9] No.
(Senior)
Cut-off Date: as defined in the Remittance Rate: _____%
Pooling and Servicing Agreement [Remittance Rate: Floating Rate
dated as of May 1, 1999 equal to the Weighted Average
Contract Rate (subject to a maximum
of ____%)]
First Remittance Date:
July 1, 1999 Denomination: $____________
Aggregate Denomination of
Servicer: All Class A-1
Green Tree Financial Corporation [1][2][3][4][5][6][7][8][9]
Certificates:
$____________
Maturity Date: [June 1, 2000]
February 1, 2031
(or if such day is not a
Business Day, then the next
succeeding Business Day)
CUSIP: ____________
MANUFACTURED HOUSING CONTRACT
-----------------------------
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
---------------------------------------------
SERIES 1999-3, CLASS A-[1][2][3][4][5][6][7][8][9] (SENIOR)
-----------------------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
A-1
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in Manufactured Housing Contract Senior/Subordinate Pass-Through Certificate
Trust 1999-3 (the "Trust"), which includes among its assets a pool of
manufactured housing installment sale contracts and installment loan agreements
(including, without limitation, all related security interests and any and all
rights to receive payments which are due pursuant thereto on or after the
applicable Cut-off Date. The Trust has been created pursuant to a Pooling and
Servicing Agreement (the "Agreement"), dated as of May 1, 1999, between Green
Tree Financial Corporation, as Seller and Servicer (the "Company"), and U.S.
Bank National Association, as Trustee of the Trust (the "Trustee"). This
Certificate is one of the Certificates described in the Agreement and is issued
pursuant and subject to the Agreement. By acceptance of this Certificate the
holder assents to and becomes bound by the Agreement. To the extent not defined
herein, all capitalized terms have the meanings assigned to such terms in the
Agreement.
The Agreement contemplates, subject to its terms, payment on the first day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Remittance Date") of each month commencing in July 1999, so long as the
Agreement has not been terminated, by check (or, if such Certificateholder holds
a Class of Class A Certificates with an aggregate Percentage Interest of at
least 5% and so desires, by wire transfer pursuant to instructions delivered to
the Trustee at least 10 days prior to such Remittance Date) to the registered
Certificateholder at the address appearing on the Certificate Register as of the
Business Day immediately preceding such Remittance Date, in an amount equal to
the Certificateholder's Percentage Interest of the portion of the Class A
Distribution Amount to be distributed to such Class of Class A Certificates.
The Maturity Date of this Certificate is [June 1, 2000] [February 1, 2031] or
the next succeeding Business Day if such [June] [February] 1 is not a Business
Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its name
and address to other Certificateholders under the conditions specified in the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all
amendments thereto will be provided to any Certificateholder free of charge upon
a written request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
St. ▇▇▇▇, Minnesota, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder thereof or his or her attorney duly
A-2
authorized in writing, and thereupon one or more new Certificates evidencing the
same aggregate Percentage Interest will be issued to the designated transferee
or transferees.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The Company, the Servicer, the Trustee, the Paying Agent and the
Certificate Registrar and any agent of the Company, the Servicer, the Trustee,
the Paying Agent or the Certificate Registrar may treat the person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Company, the Servicer, the Trustee, the Paying Agent, the Certificate
Registrar nor any such agent shall be affected by any notice to the contrary.
A-3
IN WITNESS WHEREOF, Manufactured Housing Contract Senior/ Subordinate Pass-
Through Certificate Trust 1999-3 has caused this Certificate to be duly executed
by the manual signature of a duly authorized officer of the Trustee.
Dated: MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1999-3
By U.S. BANK NATIONAL ASSOCIATION
By:________________________________
________________________
Its:____________________
A-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ the within Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate and does hereby irrevocably
constitute and appoint _____________________________ Attorney to transfer the
said certificate on the Certificate Register maintained by the Trustee, with
full power of substitution in the premises.
Dated: By:_____________________________
______________________
Its:__________________
A-5
EXHIBIT B
---------
FORM OF CLASS M-[1][2] CERTIFICATE
-----------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES [AND THE CLASS M-1 CERTIFICATES] AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
Class M-[1][2] No.
(Subordinate)
Remittance Rate: Floating Rate equal
Cut-off Date: as defined in the to the Weighted Average Contract Rate
Pooling and Servicing Agreement (subject to a maximum of _____%)
dated as of May 1, 1999
Denomination: $____________
First Remittance Date:
July 1, 1999 Aggregate Denomination of
All Class M-[1][2] Certificates:
$____________
Servicer:
Green Tree Financial Corporation Maturity Date:
February 1, 2031
(or if such day is not a
Business Day, then the next
succeeding Business Day)
CUSIP:_____________
MANUFACTURED HOUSING CONTRACT
-----------------------------
SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATES,
---------------------------------------------
SERIES 1999-3, CLASS M-[1][2] (SUBORDINATE)
-------------------------------------------
B-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in Manufactured Housing Contract Senior/Subordinate Pass-Through Certificate
Trust 1999-3 (the "Trust"), which includes among its assets a pool of
manufactured housing installment sale contracts and installment loan agreements
(including, without limitation, all related security interests and any and all
rights to receive payments which are due pursuant thereto on or after the
applicable Cut-off Date. The Trust has been created pursuant to a Pooling and
Servicing Agreement (the "Agreement"), dated as of May 1, 1999 between Green
Tree Financial Corporation, as Seller and Servicer (the "Company"), and U.S.
Bank National Association, as Trustee of the Trust (the "Trustee"). This
Certificate is one of the Certificates described in the Agreement and is issued
pursuant and subject to the Agreement. By acceptance of this Certificate the
holder assents to and becomes bound by the Agreement. To the extent not defined
herein, all capitalized terms have the meanings assigned to such terms in the
Agreement.
The Agreement contemplates, subject to its terms, payment on the first day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Remittance Date") of each month commencing in July 1999, so long as the
Agreement has not been terminated, by check (or, if such Certificateholder holds
a Class M-[1][2] Certificate with an aggregate Percentage Interest of at least
5% and so desires, by wire transfer pursuant to instructions delivered to the
Trustee at least 10 days prior to such Remittance Date) to the registered
Certificateholder at the address appearing on the Certificate Register as of the
Business Day immediately preceding such Remittance Date, in an amount equal to
the Certificateholder's Percentage Interest of the portion of the Class [M-1/M-
2] Distribution Amount for such Remittance Date. The Maturity Date of this
Certificate is February 1, 2031 or the next succeeding Business Day if such
February 1 is not a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its name
and address to other Certificateholders under the conditions specified in the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all
amendments thereto will be provided to any Certificateholder free of charge upon
a written request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
St.
B-2
▇▇▇▇, Minnesota, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder thereof or his or her attorney duly authorized in writing, and thereupon
one or more new Certificates evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
The Company, the Servicer, the Trustee, the Paying Agent and the
Certificate Registrar and any agent of the Company, the Servicer, the Trustee,
the Paying Agent or the Certificate Registrar may treat the person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Company, the Servicer, the Trustee, the Paying Agent, the Certificate
Registrar nor any such agent shall be affected by any notice to the contrary.
B-3
IN WITNESS WHEREOF, Manufactured Housing Contract Senior/ Subordinate Pass-
Through Certificate Trust 1999-3 has caused this Certificate to be duly executed
by the manual signature of a duly authorized officer of the Trustee.
Dated: MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1999-3
By U.S. BANK NATIONAL ASSOCIATION
By:_____________________________
_______________________
Its: __________________
B-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________________ the within Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate and does hereby irrevocably
constitute and appoint _____________________________ Attorney to transfer the
said certificate on the Certificate Register maintained by the Trustee, with
full power of substitution in the premises.
Dated:
By:_____________________________
_______________________
Its:___________________
B-5
EXHIBIT C-1
-----------
FORM OF CLASS B-[1][2] CERTIFICATE
----------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES [,] THE CLASS M CERTIFICATES [,] [AND THE CLASS B-1 CERTIFICATES]
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS REGISTERED PURSUANT TO
SUCH ACT AND LAWS OR SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND ARE TRANSFERRED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.]
Class B-[1][2] No.
(Subordinate)
Cut-off Date: as defined in the Remittance Rate: Floating Rate equal
Pooling and Servicing Agreement to the Weighted Average Contract Rate
dated as of May 1, 1999 (subject to a maximum of ____%)
Denomination: $____________
First Remittance Date:
July 1, 1999 Aggregate Denomination of
All Class B-[1][2] Certificates:
$____________
Servicer:
Green Tree Financial Corporation Maturity Date:
February 1, 2031
(or if such day is not a
Business Day, then the next
succeeding Business Day)
CUSIP: _____________
C-1-1
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
------------------------------------------------
PASS-THROUGH CERTIFICATES, SERIES 1999-3, CLASS B-[1][2] (SUBORDINATE)
----------------------------------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
This certifies that Cede & Co. is the registered owner of the undivided
Percentage Interest represented by the original principal amount set forth above
in Manufactured Housing Contract Senior/Subordinate Pass-Through Certificate
Trust 1999-3 (the "Trust"), which includes among its assets a pool of
manufactured housing installment sale contracts and installment loan agreements
(including, without limitation, all related security interests and any and all
rights to receive payments which are due pursuant thereto on or after the
applicable Cut-off Date. The Trust has been created pursuant to a Pooling and
Servicing Agreement (the "Agreement"), dated as of May 1, 1999, between Green
Tree Financial Corporation, as Seller and Servicer (the "Company"), and U.S.
Bank National Association, as Trustee of the Trust (the "Trustee"). This
Certificate is one of the Certificates described in the Agreement and is issued
pursuant and subject to the Agreement. By acceptance of this Certificate the
holder assents to and becomes bound by the Agreement. To the extent not defined
herein, all capitalized terms have the meanings assigned to such terms in the
Agreement.
The Agreement contemplates, subject to its terms, payment on the first day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Remittance Date") of each month commencing in July 1999 so long as the
Agreement has not been terminated, by check (or, if such Certificateholder holds
a Class of Class B Certificates with an aggregate Percentage Interest of at
least 5% and so desires, by wire transfer pursuant to instructions delivered to
the Trustee at least 10 days prior to such Remittance Date) to the registered
Certificateholder at the address appearing on the Certificate Register as of the
Business Day immediately preceding such Remittance Date, in an amount equal to
the Certificateholder's Percentage Interest of the Class [B-1/B-2] Distribution
Amount for such Remittance Date. The Maturity Date of this Certificate is
February 1, 2031, or the next succeeding Business Day if such February 1 is not
a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account [and the Limited
Guarantee of the Company] to the extent available for distribution to the
Certificateholder as provided in the Agreement for payment hereunder and that
the Trustee in its individual capacity is not personally liable to the
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the
C-1-2
Agreement and all amendments thereto will be provided to any Certificateholder
free of charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
St. ▇▇▇▇, Minnesota, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder thereof or his or her attorney duly authorized in writing, and thereupon
one or more new Certificates evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
The Company, the Servicer, the Trustee, the Paying Agent and the
Certificate Registrar and any agent of the Company, the Servicer, the Trustee,
the Paying Agent or the Certificate Registrar may treat the person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Company, the Servicer, the Trustee, the Paying Agent, the Certificate
Registrar nor any such agent shall be affected by any notice to the contrary.
C-1-3
IN WITNESS WHEREOF, Manufactured Housing Contract Senior/ Subordinate Pass-
Through Certificate Trust 1999-3 has caused this Certificate to be duly executed
by the manual signature of a duly authorized officer of the Trustee.
Dated: MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1999-3
By U.S. BANK NATIONAL ASSOCIATION
By:_____________________________
______________________
Its: _________________
C-1-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________________ the within Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate and does hereby irrevocably
constitute and appoint _____________________________ Attorney to transfer the
said certificate on the Certificate Register maintained by the Trustee, with
full power of substitution in the premises.
Dated: By:_____________________________
_________________________
Its: ___________________
C-1-5
EXHIBIT C-2
-----------
FORM OF CLASS B-3I CERTIFICATE
------------------------------
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS B CERTIFICATES AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
Class B-3I No. ___________
(Subordinate)
Cut-off Date: as defined in the Percentage Interest: _____%
Pooling and Servicing Agreement
dated as of May 1, 1999
Maturity Date:
First Remittance Date: February 1, 2031
July 1, 1999 (or if such day is not a
Business Day, then the next
succeeding Business Day)
Servicer:
Green Tree Financial Corporation
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
------------------------------------------------
PASS-THROUGH CERTIFICATES, SERIES 1999-3, CLASS B-3I (SUBORDINATE)
------------------------------------------------------------------
C-2-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
GREEN TREE FINANCIAL CORPORATION OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT
SET FORTH IN THE AGREEMENT.
This certifies that Green Tree Finance Corp.--Two is the registered owner
of the undivided Percentage Interest set forth above in Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust 1999-3 (the "Trust"),
which includes among its assets a pool of manufactured housing installment sale
contracts and installment loan agreements (including, without limitation, all
related security interests and any and all rights to receive payments which are
due pursuant thereto on or after the applicable Cut-off Date. The Trust has
been created pursuant to a Pooling and Servicing Agreement (the "Agreement"),
dated as of May 1, 1999, between Green Tree Financial Corporation, as Seller and
Servicer (the "Company"), and U.S. Bank National Association, as Trustee of the
Trust (the "Trustee"). This Certificate is one of the Certificates described in
the Agreement and is issued pursuant and subject to the Agreement. By
acceptance of this Certificate the holder assents to and becomes bound by the
Agreement. To the extent not defined herein, all capitalized terms have the
meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the first day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Remittance Date") of each related Due Period commencing in July 1999 so long as
the Agreement has not been terminated, by check (or, if such Certificateholder
holds Class B-3I Certificates with an aggregate Percentage Interest of at least
5% and so desires, by wire transfer pursuant to instructions delivered to the
Trustee at least 10 days prior to such Remittance Date) to the registered
Certificateholder at the address appearing on the Certificate Register as of the
Business Day immediately preceding such Remittance Date, in an amount equal to
the Certificateholder's Percentage Interest of the Class B-3I Distribution
Amount for such Remittance Date. The final scheduled Remittance Date of this
Certificate is February 1, 2031 or the next succeeding Business Day if such
February 1 is not a Business Day.
THIS CERTIFICATE IS AN INTEREST ONLY CERTIFICATE. THE HOLDER OF THIS
CERTIFICATE SHALL NOT BE ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL WITH RESPECT
TO THE CONTRACTS.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this
Certificate, the Certificateholder agrees to disclosure of his, her or its name
and address to other Certificateholders under the conditions specified in the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all
amendments thereto will be provided to any Certificateholder free of charge upon
a written request to the Trustee.
C-2-2
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
St. ▇▇▇▇, Minnesota, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder thereof or his or her attorney duly authorized in writing, and thereupon
one or more new Certificates evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The Company, the Servicer, the Trustee, the Paying Agent and the
Certificate Registrar and any agent of the Company, the Servicer, the Trustee,
the Paying Agent or the Certificate Registrar may treat the person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Company, the Servicer, the Trustee, the Paying Agent, the Certificate
Registrar nor any such agent shall be affected by any notice to the contrary.
C-2-3
IN WITNESS WHEREOF, Manufactured Housing Contract Senior/ Subordinate Pass-
Through Certificate Trust 1999-3 has caused this Certificate to be duly executed
by the manual signature of a duly authorized officer of the Trustee.
Dated: MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1999-3
By U.S. BANK NATIONAL ASSOCIATION
By:_____________________________
_____________________
Its: ________________
C-2-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________________ the within Manufactured Housing Contract
Senior/Subordinate Pass-Through Certificate and does hereby irrevocably
constitute and appoint _____________________________ Attorney to transfer the
said certificate on the Certificate Register maintained by the Trustee, with
full power of substitution in the premises.
Dated: By:_____________________________
______________________
Its: _________________
C-2-5
EXHIBIT D
---------
FORM OF ASSIGNMENT
------------------
In accordance with the Pooling and Servicing Agreement (the "Agreement")
dated as of May 1, 1999 between Green Tree Financial Corporation (the "Company")
and U.S. Bank National Association, as Trustee (the "Trustee"), the Company does
hereby transfer, assign, set over and otherwise convey to the Trustee (i) all
the right, title and interest of the Company in and to the Contracts, including,
without limitation, all right, title and interest in and to the Collateral
Security and all rights to receive payments on or with respect to the Contracts
(other than the principal and interest due on the Contracts before the
applicable Cut-off Date or Subsequent Cut-off Date), (ii) all rights under every
Hazard Insurance Policy relating to a Manufactured Home securing a Contract for
the benefit of the creditor of such Contract, (iii) all rights under all FHA/VA
Regulations pertaining to any Contract that is an FHA/VA Contract, (iv) the
proceeds from the Errors and Omissions Protection Policy and all rights under
any blanket hazard insurance policy to the extent they relate to the
Manufactured Homes, (v) all documents contained in the Contract Files and the
Land-and-Home Contract Files, (vi) an amount equal to the difference between the
aggregate Cut-off Date Principal Balances of the Staged-Funding Contracts and
the principal balance of the Staged-Funding Contracts as of the Closing Date
paid by the underwriters of the Certificates to the Trust by order of the
Company, pursuant to Section 2.01(b) of the Agreement, out of the proceeds of
the sale of the Certificates, (vii) amounts on deposit in the Capitalized
Interest Account and in the Pre-Funding Account, and (viii) all proceeds and
products in any way derived from any of the foregoing. Capitalized terms used
herein but not defined herein have the meanings assigned to them in the
Agreement.
This Assignment is made pursuant to and upon the representation and
warranties on the part of the undersigned contained in Article III of the
Agreement and no others.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this 27th day of May, 1999.
GREEN TREE FINANCIAL CORPORATION
By:_____________________________
_______________________
Its: _________________
D-1
EXHIBIT E
---------
FORM OF CERTIFICATE OF OFFICER
------------------------------
GREEN TREE FINANCIAL CORPORATION
OFFICER'S CERTIFICATE
We, _______________________________ hereby certify that we are the
duly elected ________________________________________, respectively, of Green
Tree Financial Corporation ("Green Tree"), and that as such we are duly
authorized to execute and deliver this Certificate on behalf of Green Tree in
connection with the Pooling and Servicing Agreement, dated as of May 1, 1999
(the "Pooling and Servicing Agreement") between Green Tree and U.S. Bank
National Association, as Trustee, and the Underwriting Agreement relating to the
Class A, Class M and Class B-1 Certificates, dated May 6, 1999 (the
"Underwriting Agreement"), among Green Tree, ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ Brothers Inc. and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities
LLC (all capitalized terms used herein without definition having the respective
meanings specified in the Pooling and Servicing Agreement and the Underwriting
Agreement) and further certify as follows:
1. Attached hereto as Exhibits I and II, respectively, are true and
correct copies of the Certificate of Incorporation and Restated Bylaws of
Green Tree, together with all amendments thereto, both of which are in full
force and effect on the date hereof, and attached hereto as Exhibit III are
Certificates of Good Standing for Green Tree issued by the Secretary of
State of each of the States of Delaware and Minnesota.
2. No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of Green Tree are pending or contemplated.
3. There is no litigation pending, or to our knowledge, threatened,
which, if determined adversely to Green Tree, would affect adversely the
sale of the Contracts, the execution, delivery or enforceability of the
Pooling and Servicing Agreement and the Underwriting Agreement, or the
ability of Green Tree to service and administer the Contracts in accordance
with the terms of the Pooling and Servicing Agreement.
4. Each person who, as an officer or representative of Green Tree,
signed the Pooling and Servicing Agreement, the Underwriting Agreement, or
any other document delivered prior hereto or on the date hereof in
connection with the sale and servicing of the Contracts in accordance with
the Pooling and Servicing Agreement or the Underwriting Agreement was at
the time of such signing and is as of the date hereof duly elected or
appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents are their genuine
signatures.
E-1
5. Neither the execution and delivery by Green Tree of the Pooling
and Servicing Agreement or the Underwriting Agreement, nor its compliance
with the terms and provisions thereof, will conflict with, or result in a
breach of, any of the terms of, or constitute a default under, any
judgment, order, injunction or decree of any domestic court or governmental
authority to which Green Tree is subject or any indenture, agreement,
contract or commitment to which Green Tree is a party or by which it is
bound, which conflict, breach or default presents a reasonable possibility
of having a materially adverse effect on the business or operations of
Green Tree. No UCC-1 financing statements or statements of assignment
listing Green Tree as debtor and describing any of the Contracts as
collateral other than the UCC-1 financing statement in favor of the
Trustee, have been signed on behalf of Green Tree and filed by any person
after _______________ and prior to the date hereof.
6. Attached hereto as Exhibit IV is a certified true copy of the
resolutions of the Executive Committee of the Board of Directors of Green
Tree (the "Resolutions") adopted with respect to the authorization of Green
Tree to take such actions and enter into such agreements as are necessary
to sell and service the Contracts in accordance with the Pooling and
Servicing Agreement and the Underwriting Agreement; said resolutions have
not been amended, modified, annulled or revoked and are in full force and
effect on the date hereof.
7. The Registration Statement and the Prospectus, at the time the
Registration Statement became effective did comply, and as of the date
hereof comply, in all material respects with the requirements of the
Securities Act of 1933, as amended (the "1933 Act") and the Regulations.
The Registration Statement, at the time it became effective did not, and as
of the date hereof does not, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus as
of the date thereof did not, and as of the date hereof does not, contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in, or omissions from, the Registration Statement
or Prospectus made in reliance upon and in conformity with information
furnished to the Green Tree in writing by the Underwriters expressly for
use in the Registration Statement or Prospectus. The conditions to the use
by the Green Tree of registration statement on Form S-3 under the 1933 Act,
as set forth in the General Instructions to Form S-3, have been satisfied
with respect to the Registration Statement and the Prospectus. There are
no contracts or documents of the Green Tree which are required to be filed
as exhibits to the Registration Statement pursuant to the 1933 Act or the
Regulations which have not been so filed.
8. Each of the representations and warranties contained in Sections
3.01 and 3.04 of the Pooling and Servicing Agreement and Section 1 of the
Underwriting Agreement is true and correct on and as of the date hereof.
To the best of our knowledge, the representations and warranties of Green
Tree contained in Sections 3.02 and 3.03 of the Pooling and Servicing
Agreement are true and correct on the date hereof.
E-2
9. Green Tree has complied with all the agreements by which it is
bound in connection with the transactions contemplated by the Pooling and
Servicing Agreement and Underwriting Agreement, and has satisfied all the
conditions on its part to be performed or satisfied prior to the Closing
Date in connection with the transactions contemplated by the Pooling and
Servicing Agreement and the Underwriting Agreement.
10. The Pooling and Servicing Agreement and the Underwriting
Agreement have been duly executed by Green Tree pursuant to and in
compliance with the Resolutions.
11. No event with respect to Green Tree has occurred or is continuing
which would constitute an Event of Termination or an event that with notice
or lapse of time or both would become an Event of Termination under the
Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ____ day of
May, 1999.
GREEN TREE FINANCIAL CORPORATION
By:______________________________________
________________________
Its: __________________
E-3
EXHIBIT F
---------
FORM OF OPINION OF COUNSEL FOR THE COMPANY
------------------------------------------
The opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A. shall be to the effect that
(capitalized terms have the meanings set forth in the Pooling and Servicing
Agreement):
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, with corporate
power to execute, deliver and perform its obligations under the Pooling and
Servicing Agreement (including the Limited Guarantee contained therein). The
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the performance of its duties under the
Pooling and Servicing Agreement would require such qualification.
2. The Pooling and Servicing Agreement has been duly authorized by
all requisite corporate action, duly executed and delivered by the Company, and
constitutes the valid and binding obligations of the Company enforceable in
accordance with their terms. The Certificates have been duly authorized by all
requisite corporate action and, when duly and validly executed by the Trustee in
accordance with the Pooling and Servicing Agreement, will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
3. No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required to be obtained by the
Company for the consummation of the transactions contemplated by the Pooling and
Servicing Agreement, except such as may be required under blue sky laws under
any jurisdiction in connection with the offering of the Regular Certificates by
the Underwriter pursuant to the Underwriting Agreement.
4. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as now in effect, and the Trust
is not required to be registered as an investment company under the Investment
Company Act of 1940.
5. Neither the transfer of the Contracts to the Trustee acting on
behalf of the Trust, nor the assignment of the Company's security interest in
the related Manufactured Homes, nor the issuance or sale of the Certificates,
nor the execution and delivery of the Pooling and Servicing Agreement (including
the Limited Guarantee contained therein), nor the consummation of any other of
the transactions contemplated in the Pooling and Servicing Agreement, nor the
fulfillment of the terms of the Certificates or the Pooling and Servicing
Agreement by the Company will conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of the
Certificate of Incorporation or Bylaws of the Company or of any indenture or
other agreement or instrument known to us to which the Company is a party or by
which it is bound, or result in a violation of, or contravene the terms of any
statute, order or regulation, applicable to the Company, of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it.
F-1
6. There are no actions or proceedings pending or, to the best of
our knowledge, actions, proceedings or investigations pending or overtly
threatened against the Company before any court, administrative agency or other
tribunal (A) asserting the invalidity of the Pooling and Servicing Agreement,
the Certificates, the hazard or flood insurance policies applicable to any
Contracts or the Errors and Omissions Protection Policy, (B) seeking to prevent
the issuance of the Certificates or the consummation of any of the transactions
contemplated by the Pooling and Servicing Agreement, (C) which is likely
materially and adversely to affect the performance by the Company of its
obligations under, or the validity or enforceability of the Pooling and
Servicing Agreement, the Certificates, or (D) seeking adversely to affect the
federal income tax attributes of the Certificates described in the Prospectus
under the heading "Certain Federal Income Tax Consequences."
7. The transfer of the Initial and Additional Contracts to the Trust
in accordance with Section 2.01 of the Pooling and Servicing Agreement would not
be avoidable as a preferential transfer under Section 547 of the United States
Bankruptcy Code (11 U.S.C. (S) 547), as in effect on the date hereof, in the
event that the Company became a debtor under the United States Bankruptcy Code.
8. Pursuant to the Pooling and Servicing Agreement the Company has
transferred to the Trustee acting on behalf of the Trust all of the Company's
right, title and interest in the Initial and Additional Contracts, free and
clear of any and all other assignments, encumbrances, options, rights, claims,
liens or security interests (except tax or possessory liens) that may affect the
right of the Trustee in and to such Contracts, and has delivered the Land-and-
Home Contract Files relating to the Initial and Additional Contracts to the
Trustee or its custodian. No filing or other action, other than the filing of a
financing statement on Form UCC-1 with the Secretary of State of the State of
Minnesota identifying the Contracts as collateral and naming the Company as
debtor and the Trust as secured party, and the filing of continuation statements
as required by Section 4.02 of the Pooling and Servicing Agreement, is necessary
to perfect as against third parties the assignment of the Initial and Additional
Contracts by the Company to the Trust. We have separately provided you with our
opinion concerning whether such assignment could be recharacterized as a pledge
rather than a sale in the event the Company became a debtor under the United
States Bankruptcy Code. However, in the event such assignment were
characterized as a pledge securing a loan from the Certificateholders to the
Company, it is our opinion that the Trustee would be deemed to have a valid and
perfected security interest in the Initial and Additional Contracts and the
proceeds thereof, which security interest would be prior to any other security
interest that may be perfected under the Uniform Commercial Code as in effect in
the State of Minnesota and over any "lien creditor" (as defined in Minn. Stat.
(S)336.9-301(3)) who becomes such after the Closing Date, except that a
subsequent purchaser of any Initial and Additional Contract who gives new value
and takes possession thereof in the ordinary course of his business would have
priority over the Trustee's security interest in such Contract, if such
purchaser acts without knowledge that such Contract was subject to a security
interest. We have assumed for the purposes of this opinion that during the term
of the Pooling and Servicing Agreement the Trustee, or its custodian, shall
maintain possession of the Land-and-Home Contract Files for the purpose of
perfecting the assignment to the Trustee of the Land-and-Home Contracts.
F-2
9. In reliance upon certain representations and warranties set forth
in the Pooling and Servicing Agreement and assuming that the Company and the
Trustee comply with the requirements of the Pooling and Servicing Agreement,
including the filing of a proper election, as of the date hereof each of the
Subsidiary REMIC and the Master REMIC created pursuant to the Pooling and
Servicing Agreement will qualify as a REMIC. Further, the Regular Certificates
will evidence ownership of the "regular interests" and the Class C Certificate
will evidence ownership of the single class of "residual interest" in the Master
REMIC. For Minnesota income tax purposes, and subject to the foregoing
assumptions, and the provisions of Minnesota law as of the date hereof, such
Trust will not be subject to tax and the income of such Trust will be taxable to
the holders of interests therein, all in accordance with the provisions of the
Code concerning REMICs as amended through December 31, 1998. Moreover,
ownership of a Certificate will not be a factor in determining whether such
owner is subject to Minnesota income taxes. Therefore, if the owner of a
Certificate is not otherwise subject to Minnesota income or franchise taxes in
the State of Minnesota, such owner will not become subject to such Minnesota
taxes solely by virtue of owning a Certificate.
10. The transfer of the Initial and Additional Contracts and the
proceeds thereof by the Company to the Trustee on the date hereof pursuant to
the Pooling and Servicing Agreement would not be avoidable as a fraudulent
transfer under the Uniform Fraudulent Transfer Act as in effect in Minnesota on
the date hereof (Minn. Stat. (S)(S) 513.41 through 513.51), nor, should the
Company become a debtor under the United States Bankruptcy Code, as a fraudulent
transfer under Section 548 of the United States Bankruptcy Code (11 U.S.C. (S)
548) as in effect on the date hereof.
F-3
EXHIBIT G
---------
FORM OF TRUSTEE'S ACKNOWLEDGMENT
--------------------------------
U.S. Bank National Association, a national banking association, acting
as trustee (the "Trustee") of the trust created pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 1999, between Green Tree Financial
Corporation and the Trustee (the "Pooling and Servicing Agreement") (all
capitalized terms used herein without definition having the respective meanings
specified in the Pooling and Servicing Agreement), acknowledges, pursuant to
Section 2.03 of the Pooling and Servicing Agreement, that the Trustee has
received the following: (i) all the right, title and interest of the Company in
and to the List of Contracts [delivered pursuant to Section 2.02(a) of the
Pooling and Servicing Agreement] [Subsequent Transfer Instrument of even date
herewith] (the "Contracts"), including, without limitation, all right, title and
interest in and to the Collateral Security and all rights to receive payments on
or with respect to the Contracts (due on or after the [Cut-off Date] [Subsequent
Cut-off Date], (ii) all rights under every Hazard Insurance Policy relating to a
Manufactured Home securing a Contract for the benefit of the creditor of such
Contract, (iii) all rights under all FHA/VA Regulations pertaining to any FHA/VA
Contract, (iv) the proceeds from the Errors and Omissions Protection Policy and
all rights under any blanket hazard insurance policy to the extent they relate
to the Manufactured Homes, (v) all documents contained in the Contract Files and
the Land-and-Home Contract Files, [and] [(vi)] [all amounts paid by the
underwriters of the Certificates to the Trust by order of the Company pursuant
to Section 2.01(b) of the Pooling and Servicing Agreement out of the proceeds of
the sale of the Certificates, (vii) amounts on deposit in the Capitalized
Interest Account and the Pre-Funding Account and (viii)] all proceeds and
products in any way derived from any of the foregoing.
The Trustee further acknowledges receipt of the Land-and-Home Contract
Files, and acknowledges that it will, within 90 days of the Closing Date,
conduct a cursory review of the Land-and-Home Contract Files and confirm that
each Land-and-Home Contract File included (a) an original copy of the Land-and-
Home Contract, (b) an original or a copy of the related Mortgage, (c) the
assignment of the Land-and-Home Contract and the related Mortgage from the
originator (if other than the Company) to the Company, (d) if such Land-and-Home
Contract was originated by the Company, an endorsement of such Land-and-Home
Contract by the Company, (e) an assignment of the related Mortgage to the
Trustee or in blank and (f) any extension, modification or waiver agreement(s),
except as noted on the document exception listing to be attached to such
confirmation. The Trustee will not otherwise review the Contracts and Land-and-
Home Contract Files for compliance with the terms of the Pooling and Servicing
Agreement.
The Trustee further acknowledges that the Trustee, directly or through
a custodian, will hold said rights, interests and proceeds in trust for the use
and benefit of all Certificateholders.
G-1
IN WITNESS WHEREOF, U.S. Bank National Association, as Trustee, has
caused this acknowledgment to be executed by its duly authorized officer and its
corporate seal affixed hereto as of this _____ day of May, 1999.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
_________________________
Its:_____________________
G-2
EXHIBIT H
---------
FORM OF CUSTODIAN'S ACKNOWLEDGMENT
----------------------------------
U.S. Bank Trust National Association, a national banking association
(the "Custodian") acting as Custodian under a Custodial Agreement dated as of
May ____, 1999, between the Custodian and U.S. Bank National Association, as
Trustee (the "Trustee") (the "Custodial Agreement") under the Pooling and
Servicing Agreement dated as of May 1, 1999 between Green Tree Financial
Corporation (the "Company"), as Seller and Servicer, and the Trustee, pursuant
to which the Custodian holds on behalf of the Trustee certain "Land-and-Home
Contract Files," as described in the Pooling and Servicing Agreement, hereby
acknowledges receipt of such Land-and-Home Contract Files. The Custodian
further acknowledges that it will, within 90 days of the date of the Custodial
Agreement, conduct a cursory review of the Land-and-Home Contract Files and
confirm to the Trustee and the Company that each Land-and-Home Contract File
included (a) an original copy of the Land-and-Home Contract, (b) an original or
a copy of the related Mortgage, (c) the assignment of the Land-and-Home Contract
and the related Mortgage from the originator (if other than the Company) to the
Company, (d) if such Land and Home Contract was originated by the Company, an
endorsement of such Land and Home Contract by the Company, (e) an assignment of
the related Mortgage to the Trustee or in blank, and (f) any extension,
modification or waiver agreement(s), except as noted on the document exception
listing to be attached to such confirmation. The Custodian will not otherwise
review the Contracts and Land-and-Home Contract Files for compliance with the
terms of the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, U.S. Bank Trust National Association has caused
this acknowledgment to be executed by its duly authorized officer and its
corporate seal affixed hereto as of this _____ day of May, 1999.
U.S. BANK TRUST NATIONAL
ASSOCIATION,
as Custodian
By:_________________________________
_______________________
Its:___________________
H-1
EXHIBIT I
---------
FORM OF CERTIFICATE OF SERVICING OFFICER
----------------------------------------
GREEN TREE FINANCIAL CORPORATION
The undersigned certifies that he is a [title] of Green Tree Financial
-----
Corporation, a Delaware corporation (the "Company"), and that as such he is duly
authorized to execute and deliver this certificate on behalf of the Company
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the
"Agreement") dated as of May 1, 1999 between the Company and U.S. Bank National
Association, as Trustee (all capitalized terms used herein without definition
having the respective meanings specified in the Agreement), and further
certifies that:
1. The Monthly Report for the period from ____________________ to
____________________ attached to this certificate is complete and accurate
in accordance with the requirements of Sections 6.01 and 6.02 of the
Agreement; and
2. As of the date hereof, no Event of Termination or event that with
notice or lapse of time or both would become an Event of Termination has
occurred.
IN WITNESS WHEREOF, I have affixed hereunto my signature this _____ day of
____, _____.
GREEN TREE FINANCIAL CORPORATION
By:__________________________________
______________________
Its: ________________
I-1
EXHIBIT J
---------
FORM OF CLASS C SUBSIDIARY CERTIFICATE
--------------------------------------
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
UNCERTIFICATED SUBSIDIARY INTERESTS AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED. THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO A
PERMITTED TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN); ANY SUCH TRANSFER MUST ALSO SATISFY THE OTHER REQUIREMENTS OF
SECTION 9.02 OF SUCH POOLING AND SERVICING AGREEMENT.
Class C Subsidiary No.
(Subordinate)
Cut-off Date: as defined in the Percentage Interest:_______%
Pooling and Servicing Agreement
dated as of May 1, 1999
First Remittance Date:
July 1, 1999
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
------------------------------------------------
PASS-THROUGH CERTIFICATES, SERIES 1999-3, CLASS C SUBSIDIARY
------------------------------------------------------------
(RESIDUAL INTEREST)
-------------------
J-1
Cut-off Date Pool Principal Balance: $___________
This certifies that Green Tree Finance Corp.--Two is the registered owner
of the Residual Interest represented by this Certificate, and entitled to
certain distributions out of Manufactured Housing Contract Senior/Subordinate
Pass-Through Certificate Trust 1999-3 (the "Trust"), which includes among its
assets a pool of manufactured housing installment sale contracts and installment
loan agreements (including, without limitation, all related security interests
and any and all rights to receive payments which are due pursuant thereto on or
after the Cut-off Date) (the "Contracts"). The Trust has been created pursuant
to a Pooling and Servicing Agreement (the "Agreement"), dated as of May 1, 1999,
between Green Tree Financial Corporation, as Seller and Servicer (the
"Company"), and U.S. Bank National Association, as Trustee of the Trust (the
"Trustee"). This Class C Subsidiary Certificate is one of the Class C
Subsidiary Certificates described in the Agreement and is issued pursuant and
subject to the Agreement. By acceptance of this Class C Subsidiary Certificate
the holder assents to and becomes bound by the Agreement. To the extent not
defined herein, all capitalized terms have the meanings assigned to such terms
in the Agreement.
The Agreement contemplates, subject to its terms, payment on the first day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Remittance Date") of each month commencing in July 1999, so long as the
Agreement has not been terminated, by check (or, if such Class C Subsidiary
Certificateholder holds Class C Subsidiary Certificates with an aggregate
Percentage Interest of at least 20% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least ten days prior to such Remittance
Date) to the registered Class C Subsidiary Certificateholder at the address
appearing on the Certificate Register as of the Business Day immediately
preceding such Remittance Date, in an amount equal to the Class C Subsidiary
Distribution Amount.
The Class C Subsidiary Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Certificate
Account to the extent available for distribution to the Class C Subsidiary
Certificateholder as provided in the Agreement for payment hereunder and that
the Trustee in its individual capacity is not personally liable to the Class C
Subsidiary Certificateholder for any amounts payable under this Certificate or
the Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Class C Subsidiary Certificate does not purport to summarize the
Agreement and reference is made to the Agreement for information with respect to
the interests, rights, benefits, obligations, proceeds and duties evidenced
hereby and the rights, duties and immunities of the Trustee. Copies of the
Agreement and all amendments thereto will be provided to any Class C
Certificateholder free of charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Class C Subsidiary Certificate is registrable in
the Certificate Register of the Certificate Registrar upon surrender of this
Class C Subsidiary Certificate for registration of transfer at the
J-2
office or agency maintained by the Trustee in St. ▇▇▇▇, Minnesota, accompanied
by a written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder thereof or his or her attorney
duly authorized in writing, and thereupon one or more new Class C Subsidiary
Certificates evidencing the same aggregate amount of Class C Subsidiary
Certificates will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations therein set
forth, this Class C Subsidiary Certificate is exchangeable for new Class C
Subsidiary Certificates of authorized denominations evidencing the same
aggregate Percentage Interest as requested by the holder surrendering the same.
The Company, the Servicer, the Trustee, the Paying Agent and the
Certificate Registrar and any agent of the Company, the Servicer, the Trustee,
the Paying Agent or the Certificate Registrar may treat the person in whose name
this Class C Subsidiary Certificate is registered as the owner hereof for all
purposes, and neither the Company, the Servicer, the Trustee, the Paying Agent,
the Certificate Registrar nor any such agent shall be affected by any notice to
the contrary.
The holder of this Class C Subsidiary Certificate, by acceptance hereof,
agrees that, in accordance with the requirements of Section 860D(b)(1) of the
Code, the federal tax return of the Trust for its first taxable year shall
provide that the Subsidiary REMIC elects to be treated as a "real estate
mortgage investment conduit" (a "REMIC") under the Code for such taxable year
and all subsequent taxable years. The Uncertificated Subsidiary Interests shall
be "regular interests" in the Subsidiary REMIC and the Class C Subsidiary
Certificates shall be the "residual interest" in the Subsidiary REMIC. In
addition, the holder of this Class C Subsidiary Certificate, by acceptance
hereof, (i) agrees to file tax returns consistent with and in accordance with
any elections, decisions or other reports made or filed with regard to federal,
state or local taxes on behalf of the Subsidiary REMIC, and (ii) agrees to
cooperate with the Company in connection with examinations of the Subsidiary
REMIC's affairs by tax authorities, including administrative and judicial
proceedings, and (iii) makes the additional agreements, designations and
appointments, and undertakes the responsibilities, set forth in Section 6.06 of
the Agreement.
J-3
IN WITNESS WHEREOF, Manufactured Housing Contract Senior/ Subordinate Pass-
Through Certificate Trust 1999-3 has caused this Certificate to be duly executed
by the manual signature of a duly authorized officer of the Trustee.
Dated: MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1999-3
By U.S. BANK NATIONAL ASSOCIATION
By:_________________________________
________________________
Its:_________________
J-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _________________________________________________ the within Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificate, and does hereby
irrevocably constitute and appoint _______________________________ Attorney to
transfer the said certificate on the Certificate Register maintained by the
Trustee, with full power of substitution in the premises.
Dated: By:______________________________
______________________
Its: ________________
J-5
EXHIBIT K
---------
FORM OF CLASS C MASTER CERTIFICATE
----------------------------------
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-
2 CERTIFICATES AND THE CLASS B-3I CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 9.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED. THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO A
PERMITTED TRANSFEREE (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN); ANY SUCH TRANSFER MUST ALSO SATISFY THE OTHER REQUIREMENTS OF
SECTION 9.02 OF SUCH POOLING AND SERVICING AGREEMENT.
Class C Master No.
(Subordinate)
Cut-off Date: as defined in the Percentage Interest:
Pooling and Servicing Agreement
dated as of May 1, 1999
First Remittance Date:
July 1, 1999
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
------------------------------------------------
PASS-THROUGH CERTIFICATES, SERIES 1999-3, CLASS C MASTER
--------------------------------------------------------
(RESIDUAL INTEREST)
-------------------
Cut-off Date Pool Principal Balance: $___________
K-1
This certifies that Green Tree Finance Corp.--Two is the registered owner
of the Residual Interest represented by this Certificate, and entitled to
certain distributions out of Manufactured Housing Contract Senior/Subordinate
Pass-Through Certificate Trust 1999-3 (the "Trust"), which includes among its
assets a pool of manufactured housing installment sale contracts and installment
loan agreements (including, without limitation, all related security interests
and any and all rights to receive payments which are due pursuant thereto on or
after the Cut-off Date) (the "Contracts"). The Trust has been created pursuant
to a Pooling and Servicing Agreement (the "Agreement"), dated as of May 1, 1999,
between Green Tree Financial Corporation, as Seller and Servicer (the
"Company"), and U.S. Bank National Association, as Trustee of the Trust (the
"Trustee"). This Class C Master Certificate is one of the Class C Master
Certificates described in the Agreement and is issued pursuant and subject to
the Agreement. By acceptance of this Class C Master Certificate the holder
assents to and becomes bound by the Agreement. To the extent not defined herein,
all capitalized terms have the meanings assigned to such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the first day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Remittance Date") of each month commencing in July 1999, so long as the
Agreement has not been terminated, by check (or, if such Class C Master
Certificateholder holds Class C Master Certificates with an aggregate Percentage
Interest of at least 20% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least ten days prior to such Remittance
Date) to the registered Class C Master Certificateholder at the address
appearing on the Certificate Register as of the Business Day immediately
preceding such Remittance Date, in an amount equal to the Class C Master
Distribution Amount.
The Class C Master Certificateholder, by its acceptance of this
Certificate, agrees that it will look solely to the funds in the Certificate
Account to the extent available for distribution to the Class C Master
Certificateholder as provided in the Agreement for payment hereunder and that
the Trustee in its individual capacity is not personally liable to the Class C
Master Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
This Class C Master Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Class C Master
Certificateholder free of charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Class C Master Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this Class C
Master Certificate for registration of transfer at the office or agency
maintained by the Trustee in St. ▇▇▇▇, Minnesota, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder thereof or his or her attorney duly
authorized in writing, and thereupon one or more new Class C Master
K-2
Certificates evidencing the same aggregate amount of Class C Master Certificates
will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations therein set
forth, this Class C Master Certificate is exchangeable for new Class C Master
Certificates of authorized denominations evidencing the same aggregate
Percentage Interest as requested by the holder surrendering the same.
The Company, the Servicer, the Trustee, the Paying Agent and the
Certificate Registrar and any agent of the Company, the Servicer, the Trustee,
the Paying Agent or the Certificate Registrar may treat the person in whose name
this Class C Master Certificate is registered as the owner hereof for all
purposes, and neither the Company, the Servicer, the Trustee, the Paying Agent,
the Certificate Registrar nor any such agent shall be affected by any notice to
the contrary.
The holder of this Class C Master Certificate, by acceptance hereof, agrees
that, in accordance with the requirements of Section 860D(b)(1) of the Code, the
federal tax return of the Trust for its first taxable year shall provide that
the Master REMIC elects to be treated as a "real estate mortgage investment
conduit" (a "REMIC") under the Code for such taxable year and all subsequent
taxable years. The Regular Certificates shall be "regular interests" in the
Master REMIC and the Class C Master Certificates shall be the "residual
interest" in the Master REMIC. In addition, the holder of this Class C Master
Certificate, by acceptance hereof, (i) agrees to file tax returns consistent
with and in accordance with any elections, decisions or other reports made or
filed with regard to federal, state or local taxes on behalf of the Master
REMIC, and (ii) agrees to cooperate with the Company in connection with
examinations of the Master REMIC's affairs by tax authorities, including
administrative and judicial proceedings, and (iii) makes the additional
agreements, designations and appointments, and undertakes the responsibilities,
set forth in Section 6.06 of the Agreement.
K-3
IN WITNESS WHEREOF, Manufactured Housing Contract Senior/ Subordinate Pass-
Through Certificate Trust 1999-3 has caused this Certificate to be duly executed
by the manual signature of a duly authorized officer of the Trustee.
Dated: MANUFACTURED HOUSING CONTRACT
SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATE
TRUST 1999-3
By U.S. BANK NATIONAL ASSOCIATION
By:_________________________________
______________________
Its:__________________
K-4
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____ the within Manufactured Housing Contract Senior/Subordinate Pass-
Through Certificate, and does hereby irrevocably constitute and appoint
____________ Attorney to transfer the said certificate on the Certificate
Register maintained by the Trustee, with full power of substitution in the
premises.
Dated:
By:_______________________________________
_______________________________
Its:______________________________
K-5
EXHIBIT L-1
-----------
FORM OF CERTIFICATE REGARDING REPURCHASED CONTRACTS
---------------------------------------------------
GREEN TREE FINANCIAL CORPORATION
CERTIFICATE REGARDING REPURCHASED CONTRACTS
The undersigned certifies that [he/she] is a [title] of Green Tree
Financial Corporation, a Delaware corporation (the "Company"), and that as such
[he/she] is duly authorized to execute and deliver this certificate on behalf of
the Company pursuant to Section 3.05 of the Pooling and Servicing Agreement (the
"Agreement"), dated as of May 1, 1999 between the Company and U.S. Bank National
Association, as Trustee (all capitalized terms used herein without definition
having the respective meanings specified in the Agreement), and further
certifies that:
1. The Contracts on the attached schedule are to be repurchased by
the Company on the date hereof pursuant to Section 3.05 of the Agreement.
2. Upon deposit of the Repurchase Price for such Contracts, such
Contracts may, pursuant to Section 3.05 of the Agreement, be assigned by
the Trustee to the Company.
IN WITNESS WHEREOF, I have affixed hereunto my signature this _____ day
of _____, _____.
GREEN TREE FINANCIAL CORPORATION
By:________________________________
______________________
Its:__________________
L-1-1
EXHIBIT L-2
-----------
FORM OF CERTIFICATE REGARDING SUBSTITUTED CONTRACTS
---------------------------------------------------
GREEN TREE FINANCIAL CORPORATION
CERTIFICATE REGARDING SUBSTITUTED CONTRACTS
The undersigned certify that they are [title] and [title], respectively of
Green Tree Financial Corporation, a corporation organized under the laws of
Delaware ("the Company"), and that as such they are duly authorized to execute
and deliver this certificate on behalf of the Company pursuant to Section
3.05(b) of the Pooling and Servicing Agreement (the "Agreement"), dated as of
May 1, 1999 between the Company and U.S. Bank National Association, as Trustee
(all capitalized terms used herein without definition having the respective
meanings specified in the Agreement), and further certify that:
1. The Contract and Contract File [or Land-and-Home Contract File,
as applicable,] for each such Eligible Substitute Contract [are being held
by the Company, as Servicer] [have been delivered to ___________________,
[the Trustee or its Custodian] [the successor Servicer].
2. The Contracts on the attached schedule are to be substituted on
the date hereof pursuant to Section 3.05(b) of the Agreement and each such
Contract is an Eligible Substitute Contract.
3. The UCC-1 financing statements in respect of the Contracts to be
substituted, in the form required by Section 3.05 (b)(iii) of the
Agreement, have been filed with the appropriate offices.
4. (x) the Company shall have delivered to the Trustee, or its
Custodian, the related Land-and-Home Contract Files; and
(y) if the sum of the aggregate principal balances of all Land-
and-Home Contracts then held by the Trustee (but excluding those Land-and-
Home Contracts, if any, that are to become Replaced Contracts as a
consequence of the substitution) and the aggregate principal balances of
all Land-and-Home Contracts that are included in the Eligible Substitute
Contracts equals or exceeds 10% of the Pool Scheduled Principal Balance as
of the Remittance Date immediately preceding the substitution, the Company
shall have delivered to the Trustee an opinion of counsel satisfactory to
the Trustee to the effect that the Trustee holds a perfected first priority
lien in the real estate securing such Eligible Substitute Contracts, or
evidence of recordation of the assignment to the Trustee on behalf of the
Trust of (A) each Mortgage securing such Eligible Contracts or, if less (B)
of the number of Mortgages securing such Eligible Substitute Contracts
needed to reduce the aggregate principal balances of all Land-and-Home
Contracts with respect to which such assignments
L-2-1
are not so recorded to less than 10% of the Pool Scheduled Principal
Balance as of the Remittance Date immediately preceding the substitution;
5. There has been deposited in the Certificate Account the amounts
listed on the schedule attached hereto as the amount by which the Scheduled
Principal Balance of each Replaced Contract exceeds the Scheduled Principal
Balance of each Contract being substituted therefor.
IN WITNESS WHEREOF, we have affixed hereunto our signatures this ____
day of _____, _____.
GREEN TREE FINANCIAL CORPORATION
By:_________________________________
_________________________________
Its:_____________________________
L-2-2
EXHIBIT M
---------
FORM OF REPRESENTATION LETTER
-----------------------------
U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Green Tree Financial Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-1639
RE: Manufactured Housing Contract Senior/Subordinate Pass-Through
Certificates, Series 1999-3, Class B-3I/C Subsidiary/C Master
The undersigned purchaser (the "Purchaser") understands that the purchase
of the above-referenced certificates (the "Certificates") may be made only by
institutions which are "Accredited Investors" under Regulation D, as promulgated
under the Securities Act of 1933, as amended (the "1933 Act"), which includes
banks, savings and loan associations, registered brokers and dealers, insurance
companies, investment companies, and organizations described in Section
501(c)(3) of the Internal Revenue Code, corporations, business trusts and
partnerships, not formed for the specific purpose of acquiring the Certificates
offered, with total assets in excess of $5,000,000. The undersigned represents
on behalf of the Purchaser that the Purchaser is an "Accredited Investor" within
the meaning of such definition. The Purchaser is urged to review carefully the
responses, representations and warranties it is making herein.
Representations and Warranties
------------------------------
The Purchaser makes the following representations and warranties in order
to permit the Trustee, Green Tree Financial Corporation, and [underwriter of the
Class B-3I/Class C Subsidiary/Class C Master Certificates] to determine its
suitability as a purchaser of Certificates and to determine that the exemption
from registration relied upon by Green Tree Financial Corporation under Section
4(2) of the 1933 Act is available to it.
1. The Purchaser understands that the Certificates have not been and will
not be registered under the 1933 Act and may be resold (which resale is not
currently contemplated) only if registered pursuant to the provisions of the
1933 Act or if an exemption from registration is available, that Green Tree
Financial Corporation is not required to register the Certificates and that any
transfer must comply with Section 9.02 of the Pooling and Servicing Agreement
relating to the Certificates.
2. The Purchaser will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Certificates.
3. The Purchaser is a sophisticated institutional investor and has
knowledge and experience in financial and business matters and is capable of
evaluating the merits and risks of its investment in the Certificates and is
able to bear the economic risk of such investment. The Purchaser has reviewed
the Prospectus dated March 11, 1999 and related Prospectus Supplement dated May
6, 1999, with respect to the Certificates, and has been given such information
concerning the Certificates, the underlying installment sale contracts and Green
Tree Financial Corporation as it has requested.
4. The Purchaser is acquiring the Certificates as principal for its own
account (or for the account of one or more other institutional investors for
which it is acting as duly authorized fiduciary or agent) for the purpose of
M-1
investment and not with a view to or for sale in connection with any
distribution thereof, subject nevertheless to any requirement of law that the
disposition of the Purchaser's property shall at all times be and remain within
its control.
5. The Purchaser does not qualify as (i) an employee benefit plan (a
"Plan") as defined in section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), whether or not it is subject to the
provisions of Title I of ERISA, (ii) a plan described in section 4975(e)(1) of
the Internal Revenue Code of 1986 (also a "Plan"), or (iii) an entity whose
underlying assets are deemed to be assets of a Plan by reason of such Plan's
investment in the entity (as determined under Department of Labor Regulations,
29 C.F.R. ss.2510.3-101 (1990)).
6. The Purchaser understands that such Certificate will bear a legend
substantially as set forth in the form of Certificate included in the Pooling
and Servicing Agreement.
7. The Purchaser, as holder of the Class B-3I/C Subsidiary/C Master
Certificate, acknowledges (i) it may incur tax liabilities in excess of any cash
flows generated by the interest and (ii) it intends to pay the taxes associated
with holding the Class B-3I/C Subsidiary/C Master Certificate as they become
due.
8. The Purchaser agrees that it will obtain from any purchaser of the
Certificates from it the same representations, warranties and agreements
contained in the foregoing paragraphs 1 through 7 and in this paragraph 8.
The representations and warranties contained herein shall be binding upon
the heirs, executors, administrators and other successors of the undersigned. If
there is more than one signatory hereto, the obligations, representations,
warranties and agreements of the undersigned are made jointly and severally.
Executed at _______________________, __________, this _____, day of ______,
____
Purchaser's Name (Print)
By:____________________________________________
__________________________
Its:_________________________
Address of Purchaser
_______________________________________________
_______________________________________________
Purchaser's Taxpayer Identification Number
_______________________________________________
M-2
EXHIBIT N
---------
FORM OF MONTHLY REPORT
----------------------
MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATES, SERIES 1999-3
Distribution Date: ____________
Class A Certificates
--------------------
1(a) Amount Available (including Monthly
Servicing Fee) ____________
(b) Class M-1 Interest Deficiency Amount (if
any), Class M-2 Interest Deficiency Amount
(if any) and Class B-1 Interest Deficiency
Amount (if any) withdrawn for prior
Remittance Date ____________
(c) Amount Available after giving effect to
withdrawal of Class M-1 Interest
Deficiency Amount, the Class M-2 Interest
Deficiency Amount and Class B-1
Interest Deficiency Amount for prior
Remittance Date
____________
(d) Amount withdrawn from [Capitalized Interest]
[Pre-Funding] Account ____________
Interest
--------
Class A Certificates
--------------------
2. Aggregate Class A interest
(a) Class A-1 Remittance Rate (4.948%) ___________%
(b) Class A-1 Interest ____________
(c) Class A-2 Remittance Rate (5.51%) ___________%
(d) Class A-2 Interest ____________
(e) Class A-3 Remittance Rate (5.80%) ___________%
(f) Class A-3 Interest ____________
(g) Class A-4 Remittance Rate (5.95%) ___________%
(h) Class A-4 Interest ____________
(i) Class A-5 Remittance Rate (6.16%) ___________%
N-1
(j) Class A-5 Interest ____________
(k) Class A-6 Remittance Rate (6.50%) ___________%
(l) Class A-6 Interest ____________
(m) Class A-7 Remittance Rate (6.74%) ___________%
(n) Class A-7 Interest ____________
(o) Class A-8 Remittance Rate (7.06%, ___________%
unless the Weighted Average
Contract Rate is less than 7.06%)
(p) Class A-8 Interest ____________
(q) Class A-9 Remittance Rate (6.53%,
unless the Weighted Average
Contract Rate is less than 6.53%) ___________%
(r) Class A-9 Interest Rate ____________
3. Amount applied to
(a) Unpaid Class A Interest Shortfall ____________
4. Remaining
(a) Unpaid Class A Interest Shortfall ____________
Class M-1 Certificates
----------------------
5. Class M-1 Interest on Class M-1 Adjusted
Principal Balance ____________
(a) Class M-1 Adjusted Principal Balance ____________
(b) Class M-1 Remittance Rate (6.96%,
unless the Weighted Average Contract Rate
is less than 6.96%) ____________
(c) Interest on Class M-1 Adjusted
Principal Balance ____________
6. Amount applied to Unpaid Class M-1
Interest Shortfall ____________
7. Remaining Unpaid Class M-1
Interest Shortfall ____________
Class M-2 Certificates
----------------------
8. Class M-2 Interest on Class M-2 Adjusted
Principal Balance ____________
N-2
(a) Class M-2 Adjusted Principal Balance ____________
(b) Class M-2 Remittance Rate (7.20%,
unless the Weighted Average Contract Rate
is less than 7.20%) ____________
(c) Interest on Class M-2 Adjusted
Principal Balance ____________
9. Amount applied to Unpaid Class M-2
Interest Shortfall ____________
10. Remaining Unpaid Class M-2
Interest Shortfall ____________
11. Class B-1 interest on Class B-1 Adjusted
Principal Balance ____________
(a) Class B-1 Adjusted Principal Balance ____________
(b) Class B-1 Remittance Rate (8.37%,
unless the Weighted Average Contract Rate
is less than 8.37%) ____________
(c) Interest on Class B-1 Adjusted
Principal Balance ____________
12. Amount applied to Unpaid
Class B-1 Interest Shortfall ____________
13. Remaining Unpaid Class B-1
Interest Shortfall ____________
Principal
---------
14. Formula Principal Distribution Amount: ____________
(a) Scheduled principal ____________
(b) Principal Prepayments ____________
(c) Liquidated Contracts ____________
(d) Repurchases ____________
N-3
(e) Plus principal received during the
first 10 days of the next Due Period ____________
(f) Minus principal received during the
first 10 days of the prior Due Period ____________
15. Pool Scheduled Principal Balance ____________
16. Unpaid Class A Principal Shortfall
(if any) following prior Remittance Date ____________
17. Class A Percentage for such
Remittance Date ____________
18. Class A Percentage for the following
Remittance Date ____________
19. Class A principal distribution:
(a) Class A-1 _____________
(b) Class A-2 _____________
(c) Class A-3 _____________
(d) Class A-4 _____________
(e) Class A-5 _____________
(f) Class A-6 _____________
(g) Class A-7 _____________
(h) Class A-8 _____________
(i) Class A-9 _____________
20. (a) Class A-1 Principal Balance _____________
(b) Class A-2 Principal Balance _____________
(c) Class A-3 Principal Balance _____________
(d) Class A-4 Principal Balance _____________
(e) Class A-5 Principal Balance _____________
(f) Class A-6 Principal Balance _____________
(g) Class A-7 Principal Balance _____________
(h) Class A-8 Principal Balance _____________
(i) Class A-9 Principal Balance _____________
21. Unpaid Class A Principal Shortfall
(if any) following current
Remittance Date _____________
N-4
Class M-1 Distribution Test, Class M-2 Distribution Test
--------------------------------------------------------
and Class B-1 Distribution Test
-------------------------------
(applicable on and after the Remittance Date occurring in
July 2003)
22. Average Sixty-Day Delinquency Ratio Test
(a) Sixty-Day Delinquency Ratio for
current Remittance Date ____________
(b) Average Sixty-Day Delinquency Ratio
(arithmetic average of ratios for this
month and two preceding months;
may not exceed 4.5% ) ____________
23. Cumulative Realized Losses Test
(a) Cumulative Realized Losses
for current Remittance Date
(as a percentage of Cut-off Date
Pool Principal Balance; may not
exceed 5.5% from July 1, 2003
to June 30, 2004; 7.0% from
July 1, 2004 to June 30, 2005;
9.0% from July 1, 2005, to
June 30, 2006 and 10.5% thereafter) ____________
24. Current Realized Loss Ratio
(a) Current Realized Losses
for current Remittance Date ____________
(b) Current Realized Loss Ratio (total
realized Losses for most recent
three months, multiplied by 4,
divided by arithmetic average of
Pool Scheduled Principal Balances
for third preceding Remittance
Date and for current Remittance
Date; may not exceed 2.75%) ____________
25. Class M-1 Principal Balance Test
(a) Sum of Class M-1 Principal Balance,
Class M-2 Principal Balance and
N-5
Class B Principal Balance (before
distributions on current Before Remittance Date)
divided by Pool Scheduled Principal Balance
as of preceding Remittance Date is at least
24.375%. ____________
26. Class M-2 Principal Balance Test
(a) Sum of Class M-2 Principal Balance and
Class B Principal Balance (before
distributions on current Remittance Date)
divided by Pool Scheduled Principal Balance
as of preceding Remittance Date is
at least 16.50%. ____________
27. Class B Principal Balance Test
(a) Class B Principal Balance (before any
distributions on current Remittance
Date) as of such Remittance Date is
at least $16,000,000. ____________
(b) Class B Principal Balance (before
distributions on current Remittance
Date) divided by Pool Scheduled
Principal Balance as of preceding
Remittance Date is at least 12.00%. ____________
28. Class M-1 Percentage for such
Remittance Date ____________
29. Class M-1 Percentage for the following
Remittance Date ____________
30. Class M-1 principal distribution:
(a) Class M-1 (current) ____________
(b) Unpaid Class M-1 Principal Shortfall
(if any) following prior Remittance Date ____________
31. Unpaid Class M-1 Principal Shortfall
(if any) following current
Remittance Date ____________
N-6
32. Class M-1 Liquidation Loss Interest
(a) Class M-1 Liquidation Loss Amount ___________
(b) Amount applied to Class M-1
Liquidation Loss Interest Amount ___________
(c) Remaining Class M-1 Liquidation Loss
Interest Amount ___________
(d) Amount applied to Unpaid Class M-1
Loss Interest Shortfall ___________
(e) Remaining Unpaid Class M-1
Liquidation Loss Interest Shortfalls ___________
33. Class M-2 Percentage for such
Remittance Date ___________
34. Class M-2 Percentage for the following
Remittance Date ___________
35. Class M-2 principal distribution:
(a) Class M-2 (current) ___________
(b) Unpaid Class M-2 Principal Shortfall
(if any) following prior Remittance Date ___________
36. Unpaid Class M-2 Principal Shortfall
(if any) following current
Remittance Date ___________
37. Class M-2 Liquidation Loss Interest
(a) Class M-2 Liquidation Loss Amount ___________
(b) Amount applied to Class M-2
Liquidation Loss Interest Amount ___________
(c) Remaining Class M-2 Liquidation Loss
Interest Amount ___________
N-7
(d) Amount applied to Unpaid Class M-2
Loss Interest Shortfall ___________
(e) Remaining Unpaid Class M-2
Liquidation Loss Interest Shortfalls ___________
38. (a) Class B Percentage for such
Remittance Date ___________
(b) Class B Percentage for the following
Remittance Date ___________
39. Current Principal (Class B Percentage of
Formula Principal Distribution Amount) ___________
40. (a) Class B-1 Principal Shortfall ___________
(b) Unpaid Class B-1 Principal Shortfall ___________
41. Class B Principal Balance ___________
42. Class B-1 Principal Balance ___________
43. Class B-1 Liquidation Loss Interest
(a) Class B-1 Liquidation Loss Amount ___________
(b) Amount applied to Class B-1
Liquidation Loss Interest Amount ___________
(c) Remaining Class B-1 Liquidation Loss
Interest Amount ___________
(d) Amount applied to Unpaid Class B-1
Liquidation Loss Interest Shortfall ___________
(e) Remaining Unpaid Class B-1 Liquidation
Loss Interest Shortfall ___________
Class B-2 Certificates
----------------------
44. Remaining Amount Available ___________
N-8
Interest
--------
45. Class B-2 Remittance Rate (8.37%,
unless the Weighted Average Contract Rate
is less than 8.37%) _________%
46. Class B-2 Interest ___________
47. Current interest ___________
48. Amount applied to Unpaid Class
B-2 Interest Shortfall ___________
49. Remaining Unpaid Class B-2
Interest Shortfall ___________
Principal
---------
50. Unpaid Class B-2 Principal Shortfall
(if any) following prior Remittance Date ___________
51. Class B-2 Principal Liquidation Loss
Amount ___________
52. Current principal (zero until Class B-1
paid down; thereafter, Class B Percentage
of Formula Principal Distribution Amount) ___________
53. Guarantee Payment ___________
54. Class B-2 Principal Balance ___________
55. Remaining Amount Available (after payment
of Class B-2 Distribution Amount) ___________
56. Excess Interest ___________
Class A, Class M and Class B Certificates
-----------------------------------------------------
Aggregate Scheduled Balances of delinquent Contracts as of
Determination Date
57. 30 - 59 days ___________
58. 60 days or more ___________
N-9
59. Manufactured Homes repossessed ___________
60. Manufactured Homes repossessed
but remaining in inventory ___________
61. Weighted Average Contract Rate
of all outstanding Contracts ___________
Class M and Class B Certificates
--------------------------------
62. Class M-1 Interest Deficiency on
such Remittance Date ___________
63. Class M-2 Interest Deficiency on
such Remittance Date ___________
64. Class B-1 Interest Deficiency on
such Remittance Date ___________
65. Class B-2 Interest Deficiency on
such Remittance Date ___________
Repossessed Manufactured Homes
------------------------------
66. Repossessed Manufactured Homes ___________
67. Repossessed Manufactured Homes Remaining in Inventory ___________
Class B-3I Certificate
----------------------
68. Class B-3I Formula Distribution Amount (all
Excess Interest plus Unpaid Class B-3I Shortfall) ___________
69. Class B-3I Distribution Amount (remaining
Amount Available) ___________
70. Class B-3I Shortfall (59 - 60) ___________
71. Unpaid Class B-3I Shortfall ___________
Please contact Bondholder Services Department of U.S. Bank National Association,
1-800-934-6802 with any questions regarding this Statement or your Distribution.
N-10
EXHIBIT O
---------
FORM OF ADDITION NOTICE
-----------------------
_____ ___,______
U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement (the "Agreement"), dated as of May
1, 1999, between Green Tree Financial Corporation (the "Company")
and U.S. Bank National Association as Trustee (the "Trustee")
relating to Manufactured Housing Contract Senior/Subordinate Pass-
Through Certificates, Series 1999-3
Ladies and Gentlemen:
Capitalized terms not otherwise defined in this Notice have the meanings
given them in the Agreement. The Company hereby notifies the Trustee of an
assignment to the Trust of Subsequent Contracts on the date and in the amounts
set forth below:
Subsequent Transfer Date: ___________
Subsequent Cut-off Date: ____________
Cut-off Date Principal Balance of Subsequent Contracts to be assigned to
Trust on Subsequent Transfer Date: $__________
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
GREEN TREE FINANCIAL CORPORATION
By:_____________________________
_________________________
Its:_____________________
ACKNOWLEDGED AND AGREED:
U.S. BANK NATIONAL ASSOCIATION
By:_____________________________
_____________________
Its: _______________
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EXHIBIT P
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FORM OF SUBSEQUENT TRANSFER INSTRUMENT
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In accordance with the Pooling and Servicing Agreement (the "Agreement")
dated as of May 1, 1999, between the undersigned and U.S. Bank National
Association as Trustee (the "Trustee"), the undersigned does hereby transfer,
assign, set over and otherwise convey, without recourse, to Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificates, Series 1999-3, created by
the Agreement, to be held in trust as provided in the Agreement, (i) all the
right, title and interest of the Company in and to the Subsequent Contracts
identified in the List of Contracts attached hereto as Exhibit A (the
"Subsequent Contracts"), including, without limitation, all right, title and
interest in and to the Collateral Security and all rights to receive payments on
or with respect to the Subsequent Contracts (other than the principal and
interest due on the Subsequent Contracts before the applicable Cut-off Date),
(ii) all rights under every Hazard Insurance Policy relating to a Manufactured
Home securing a Subsequent Contract for the benefit of the creditor of such
Subsequent Contract, (iii) all rights under all FHA/VA Regulations pertaining to
any Subsequent Contract that is an FHA/VA Contract, (iv) the proceeds from the
Errors and Omissions Protection Policy and all rights under any blanket hazard
insurance policy to the extent they relate to the Manufactured Homes, (v) all
documents contained in the Contract Files and the Land-and-Home Contract Files
relating to the Subsequent Contracts, and (vi) all proceeds and products of the
foregoing.
This Assignment is made pursuant to and upon the representation and
warranties on the part of the undersigned contained in Section 2.03 and Article
III of the Agreement and no others. All undefined capitalized terms used in this
Assignment have the meanings given them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this _____ day of _____, 1999.
GREEN TREE FINANCIAL CORPORATION
[Seal] By:______________________________
_______________________
Its: ____________________
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EXHIBIT Q
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FORM OF OFFICER'S CERTIFICATE (SUBSEQUENT TRANSFER)
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The undersigned certifies that [he/she] is a [TITLE] of Green Tree
Financial Corporation, a Delaware corporation (the "Company"), and that as such
[he/she] is duly authorized to execute and deliver this certificate on behalf of
the Company in connection with the Pooling and Servicing Agreement dated as of
May 1, 1999 (the "Agreement") between the Company and U.S. Bank National
Association as Trustee. All capitalized terms used herein without definition
have the respective meanings specified in the Agreement. The undersigned further
certifies that:
1. This Certificate is delivered in connection with the sale to the
Trust on ___________________ (the "Subsequent Transfer Date") of Contracts
(the "Subsequent Contracts") identified in the List of Contracts attached
to the Subsequent Transfer Instrument of even date herewith.
2. As of the Subsequent Transfer Date, all representations and
warranties in Section 3.01 of the Agreement are true and correct; all
representations and warranties in Sections 2.03(c), 3.02, and 3.03 of the
Agreement with respect to the Subsequent Contracts are true to the best of
his knowledge; and all representations in Section 3.04 of the Agreement
with respect to the Subsequent Contracts are true and correct.
3. All conditions precedent to the sale of the Subsequent Contracts
to the Trust under Section 2.03 of the Agreement have been satisfied.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ____ day of
_____, 1999.
By:_____________________________
______________________
Its:__________________
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