EXHIBIT 4.1
GRANTOR TRUST AGREEMENT
Series 1998-E
Dated as of December 1, 1998
between
Green Tree Financial Corporation
as Depositor and Servicer,
and
U.S. Bank Trust National Association
as Trustee
Class HE: A-1 Certificates
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS; RULES OF CONSTRUCTION .............................. 2
Section 1.01 General ...................................................... 2
Section 1.02 Specific Terms ............................................... 2
ARTICLE II - CREATION OF THE TRUST .......................................... 9
Section 2.01 Establishment of the Trust ................................... 9
Section 2.02 Office ....................................................... 9
Section 2.03 Purposes and Powers .......................................... 9
Section 2.04 Contribution of Class HE: A-1 Underlying Certificates ........ 9
Section 2.05 Expenses of Organization ..................................... 10
Section 2.06 Declaration of Trust ......................................... 10
Section 2.07 Legal Title to Trust Property ................................ 10
Section 2.08 Situs of the Trust ........................................... 10
Section 2.09 Covenants of the Holders ..................................... 10
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR,
THE SERVICER AND THE TRUSTEE .................................. 11
Section 3.01 Representations and Warranties of the Depositor .............. 11
Section 3.02 Representations and Warranties of the Servicer ............... 12
Section 3.03 Representations and Warranties of the Trustee ................ 12
ARTICLE IV - THE CERTIFICATES ............................................... 13
Section 4.01 The Certificates ............................................. 13
Section 4.02 Authentication of Certificates ............................... 13
Section 4.03 Registration and Transfer of Certificates .................... 14
Section 4.04 Mutilated, Destroyed, Lost or Stolen Certificates ............ 16
Section 4.05 Persons Deemed Holders ....................................... 16
Section 4.06 Access to List of Certificateholders' Names and Addresses..... 16
Section 4.07 Maintenance of Office or Agency .............................. 17
Section 4.08 Appointment of Paying Agent .................................. 17
ARTICLE V - TRUST ACCOUNT; APPLICATION OF TRUST FUNDS ....................... 17
Section 5.01 Collection of Money .......................................... 17
Section 5.02 Establishment of Trust Account ............................... 18
Section 5.03 Withdrawals and Application of Funds in Trust Account ........ 19
Section 5.04 Method of Payment ............................................ 19
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Section 5.05 Accounting and Reports ....................................... 20
ARTICLE VI - AUTHORITY AND DUTIES OF TRUSTEE ................................ 21
Section 6.01 General Authority ............................................ 21
Section 6.02 General Duties ............................................... 21
Section 6.03 Action upon Instruction ...................................... 21
Section 6.04 No Duties Except as Specified in this Agreement or
in Instructions .............................................. 22
Section 6.05 No Action Except under Specified Documents or Instructions ... 23
Section 6.06 Restrictions ................................................. 23
ARTICLE VII - CONCERNING THE TRUSTEE ........................................ 23
Section 7.01 Acceptance of Trust and Duties ............................... 23
Section 7.02 Furnishing of Documents ...................................... 25
Section 7.03 Reliance; Advice of Counsel .................................. 25
Section 7.04 Not Acting in Individual Capacity ............................ 26
Section 7.05 Trustee Not Liable for Certificates or Contracts ............. 26
Section 7.06 Trustee May Own Certificates ................................. 26
ARTICLE VIII - COMPENSATION OF TRUSTEE ...................................... 26
Section 8.01 Trustee's Fees and Expenses .................................. 26
Section 8.02 Indemnification .............................................. 26
Section 8.03 Nonrecourse Obligations ...................................... 27
ARTICLE IX - THE SERVICER ................................................... 27
Section 9.01 Duties ....................................................... 27
Section 9.02 Indemnification .............................................. 27
Section 9.03 Compensation ................................................. 28
Section 9.04 Delegation ................................................... 28
Section 9.05 Payment of Taxes ............................................. 28
Section 9.06 Removal of Servicer; Resignation of Servicer ................. 28
ARTICLE X - TERMINATION OF TRUST ............................................ 29
Section 10.01 Termination of Trust ......................................... 29
Section 10.02 Disposition of Proceeds ...................................... 30
ARTICLE XI - SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES ..................... 30
Section 11.01 Corporate Trustee Required; Eligibility ...................... 30
Section 11.02 Resignation or Removal of Trustee ............................ 30
Section 11.03 Successor Trustee ............................................ 31
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Section 11.04 Merger or Consolidation of Trustee ........................... 31
Section 11.05 Appointment of Co-Trustee or Separate Trustee ................ 32
ARTICLE XII - MISCELLANEOUS ................................................. 33
Section 12.01 Limitation of Suits .......................................... 33
Section 12.02 Notices and Reports to Holders; Waiver of Notices ............ 33
Section 12.03 Rules by Trustee ............................................. 34
Section 12.04 Successors and Assigns ....................................... 34
Section 12.05 Severability ................................................. 34
Section 12.06 Governing Law ................................................ 34
Section 12.07 Counterparts ................................................. 34
Section 12.08 Amendment .................................................... 34
Section 12.09 Notices ...................................................... 35
Section 12.10 Rights and Remedies Cumulative ............................... 36
Section 12.11 Delay or Omission Not Waiver ................................. 36
Section 12.12 Third-Party Beneficiaries .................................... 36
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GRANTOR TRUST AGREEMENT, dated as of December 1, 1998 by and between GREEN
TREE FINANCIAL CORPORATION, a Delaware corporation, in its capacity as depositor
and servicer (the "Depositor" and the "Servicer"), and U.S. BANK TRUST NATIONAL
ASSOCIATION, a national banking association organized under the laws of the
United States, in its capacity as the grantor trustee (the "Trustee").
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Depositor, the Servicer, and the Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section 1.01 General. 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 this Agreement. Unless
otherwise expressly defined herein, the terms of the Pooling and Servicing
Agreement (defined below) shall have the same meanings in this Agreement.
Section 1.02 Specific Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
"Accrual Period" means, with respect to the Certificates and any Payment
Date, the period commencing on the Underlying Certificate Payment Date in the
immediately preceding calendar month (or the Closing Date in the case of the
first Payment Date) to and including the day prior to the current Underlying
Certificate Payment Date. All calculations of interest on the Certificates will
be made on the basis of the actual number of days elapsed in the related Accrual
Period and in a year of 360 days.
"Affiliate" of any specified Person means any other Person controlling or
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 Grantor Trust Agreement, as it may be amended from
time to time, including the Exhibits hereto.
"Authentication Agent" means the Authentication Agent specified in Section
4.02 hereof.
"Book-Entry Certificate" means any Certificate registered in the name of
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).
"Backup Swap Counterparty" means CSFP Capital Inc., as agent for Credit
Suisse Financial Products.
"Business Day" means any day other than (a) a Saturday or a Sunday, or (b)
another day on which banking institutions in the city in which the Person taking
action hereunder are authorized or obligated by law, executive order, or
governmental decree to be closed.
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"Calculation Agent" means the Person who establishes LIBOR with respect to
each Interest Reset Period. The Calculation Agent shall be the Trustee unless
the Trustee is unable or unwilling so to act, in which case the Calculation
Agent shall be a financial institution appointed by the Company.
"Certificate" means any of the Class HE: A-1 Certificates.
"Certificateholder" or "Holder" means the person in whose name a
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 Certificate registered in the name of the Depositor 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 Certificates which the Trustee knows to
be so owned shall be so disregarded.
"Certificate Principal Balance" means, as of any time of determination, the
certificate principal balance as of the Closing Date of all Class HE: A-1
Certificates less any amounts actually distributed on such Class HE: A-1
Certificates with respect to the Principal Distribution Amount pursuant to
Section 5.03 hereof with respect to principal thereon on all prior Payment
Dates.
"Certificate Register" means the register maintained pursuant to Section
4.03.
"Certificate Registrar" or "Registrar" means the registrar appointed
pursuant to Section 4.03.
"Class" means the Class HE: A-1 Certificates.
"Class HE: A-1 Certificate" means any one of the certificates designated on
the face thereof as a Class HE: A-1 Certificate, substantially in the form
annexed hereto as Exhibit A, authenticated and delivered by the Trustee,
representing the right to distributions as set forth herein.
"Class A-1 Floating Pass-through Rate" means (i) for any Payment Date until
and including the Payment Date in January 2014, LIBOR plus the Class A-1 Pass-
Through Margin, but in no case in excess of 14% per annum, and (ii) for each
Payment Date after the Payment Date in January 2014, the Class HE: A-1
Underlying Certificate Pass-Through Rate.
"Class A-1 Pass-through Margin" means 0.57% until the Underlying
Certificate Payment Date on which the Pool Scheduled Principal Balance is less
than 10% of the Original Certificate Principal Balance, and 0.82% from and after
such date.
"Class HE: A-1 Underlying Certificate Pass-Through Rate" means 6.2375%
until the Underlying Certificate Payment Date on which the Pool Scheduled
Principal Balance is less than 10% of the Original Sub-Pool HE Certificate
Principal Balance; and 6.490975% from and after such Payment Date.
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"Closing Date" means December 7, 1998.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Current Interest" means, with respect to any Payment Date, the amount of
interest accrued on the Certificate Principal Balance during the related Accrual
Period at the Class A-1 Floating Pass-Through Rate, less the Class HE: A
Interest Shortfall in respect of the Class HE: A-1 Underlying Certificates for
the related Underlying Certificate Payment Date.
"Depositor" means Green Tree Financial Corporation, a Delaware corporation.
"Depository" means the initial Depository, the Depository Trust Company,
the nominee of which is Cede & Co., and any successor Depository. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(5) of
the Uniform Commercial Code of the State of New York.
"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 Payment
Date during the term of this Agreement.
"Eligible Account" means, at any time, an account which is any of the
following: (i) an account maintained with an Eligible Institution; (ii) an
account or accounts the deposits in which are fully insured by either the Bank
Insurance Fund or the Savings Association Insurance Fund of the FDIC; (iii) 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 of not less than $50,000,000; or
(iv) an account that will not cause or Moody's or Fitch to downgrade or withdraw
its then-current rating assigned to the Certificates, as evidenced in writing by
Moody's and Fitch.
"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 FDIC which is subject to supervision and examination by
Federal or State authorities and whose short-term deposits have been rated P-1
by Moody's and F-1 by Fitch (if rated by Fitch) or whose unsecured long-term
debt has been rated in one of the two highest rating categories by both Moody's
and Fitch (if rated by Fitch).
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"FDIC" means the Federal Deposit Insurance Corporation, a corporate
instrumentality of the United States, or any successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created pursuant to the Emergency Home
Finance Act of 1970, as amended, or any successor thereof.
"Fitch" means Fitch IBCA, Inc., or any successor thereto; provided that, if
Fitch no longer has a rating outstanding on the Certificates, then references
herein to "Fitch" shall be deemed to refer to the NRSRO then rating the
Certificates (or, if more than one such NRSRO is then rating 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.
"Class HE: A-1 Underlying Certificates" means the Class HE:A-1 (Underlying)
Certificate issued under the Pooling and Servicing Agreement.
"Class HE: A-1 Underlying Certificates Pass-Through Rate" means 6.2375%
until the Payment Date on which the Pool Scheduled Principal Balance of Sub-Pool
HE is less than 10% of the Original Sub-Pool HE Certificate Principal Balance,
and 6.490975% from and after such Payment Date.
"Interest Remittance Amount" means, as of any Payment Date, all interest
due on the related Underlying Certificate Payment Date with respect to the Class
HE: A-1 Underlying Certificates.
"Interest Reset Period" means, with respect to any Underlying Certificate
Payment Date, the period from and including the prior Payment Date (or, with
respect to the first Underlying Certificate Payment Date, from and including the
Closing Date) to but excluding such Payment Date.
"LIBOR" means, with respect to any Interest Reset Period, the offered rate,
as established by the Calculation Agent, for United States dollar deposits for
one month that appears on Telerate Page 3750 as of 11:00 A.M., London time, on
the LIBOR Determination Date for such Interest Reset Period. If on any LIBOR
Determination Date the offered rate does not appear on Telerate Page 3750, the
Calculation Agent will request each of the reference banks (which shall be major
banks that are engaged in transactions in the London interbank market selected
by the Calculation Agent) to provide the Trustee with its offered quotation for
United States dollar deposits for one month to prime banks in the London
interbank market as of 11:00 A.M., London time, on such date. If at least two
reference banks provide the Calculation Agent with such offered quotations,
LIBOR on such date will be the arithmetic mean, rounded upwards, if necessary,
to the nearest 1/100,000 of 1% (.0000001), with five one-millionths of a
percentage point rounded upward, of all such quotations. If on such date fewer
than two of the reference banks provide the Calculation Agent with such offered
quotations, LIBOR on such date will be the arithmetic mean, rounded upwards, if
necessary, to the nearest 1/100,000 of 1% (.0000001), with five one-millionths
of a percentage point rounded upward, of the offered per annum rates that one or
more leading banks in The City of New York selected by the Calculation Agent are
quoting as of 11:00 A.M., New York City time, on such date
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to leading European banks for United States dollar deposits for one month;
provided, however, that if such banks are not quoting as described above, LIBOR
for such date will be LIBOR applicable to the Interest Reset Period immediately
preceding such Interest Reset Period; and provided, further, that if the result
of the foregoing would be for three consecutive Payment Dates to base LIBOR on
the rate applicable in the immediately preceding Interest Reset Period, for such
third consecutive Payment Date the Calculation Agent shall instead select an
alternative comparable index (over which the Calculation Agent has no control)
used for determining one-month Eurodollar lending rates that is calculated and
published (or otherwise made available) by an independent third party.
"LIBOR Business Day" as used herein means a day that is both a Business Day
and a day on which banking institutions in the City of London, England are not
required or authorized by law to be closed.
"LIBOR Determination Date" means the second LIBOR Business Day prior to the
first day of the related Interest Reset Period.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto;
provided that, if Moody's no longer has a rating outstanding on the
Certificates, then references herein to "▇▇▇▇▇'▇" shall be deemed to refer to
the NRSRO then rating the Certificates (or, if more than one such NRSRO is then
rating the Certificates, to such NRSRO as may be designated by the Servicer),
and references herein to ratings by or requirements of ▇▇▇▇▇'▇ shall be deemed
to have the equivalent meanings with respect to ratings by or requirements of
such NRSRO.
"NRSRO" means nationally recognized statistical rating organization.
"Officer's Certificate" means a certificate signed by any Responsible
Officer of any Person delivering such certificate and delivered to the Trustee.
"Outstanding" means, as of any date of determination, all such Certificates
theretofore executed and delivered hereunder except:
(i) Certificates theretofore canceled by the Registrar or delivered to
the Registrar for cancellation;
(ii) Certificates or portions thereof for which full and final payment
of money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent in trust for the Holders of such Certificates;
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to this Agreement,
unless proof satisfactory to the Trustee is presented that any such
Certificates are held by a bona fide purchaser;
(iv) Certificates alleged to have been destroyed, lost or stolen for
which replacement Certificates have been issued as provided for in Section
5.05 hereof; and
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(v) Certificates as to which the Trustee has made the final
distribution thereon, whether or not such Certificate is ever returned to
the Grantor Trustee.
"Paying Agent" means the Paying Agent specified in Section 4.08 hereof.
"Payment Date" means (i) during the term of the Swap Agreement, the
eighteenth day of each calendar month during the term of the Swap Agreement, or
if such day is not a Business Day, the next succeeding Business Day; except
that, on any earlier date (not earlier than the Payment Day in such calendar
month with respect to the Class HE: A-1 Underlying Certificates) on which the
Trustee receives the Swap Payment not later than 11:00 a.m. Central Standard
Time, such earlier date will be the Payment Date in respect of such month; and
(ii) following the term of the Swap Agreement, the Underlying Certificate
Payment Date.
"Percentage Interest" means, a fraction, expressed as a percentage (carried
to eight places), the numerator of which is the initial Certificate Principal
Balance represented by such Certificate and the denominator of which is the
aggregate initial Certificate Principal Balance represented by all the
Certificates.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Pooling And Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of December 1, 1998, by and between Green Tree Financial
Corporation, as Seller and Servicer, and U.S. Bank Trust National Association,
as Trustee with respect to the Green Tree Home Improvement and Home Equity Loan
Trust 1998-E.
"Principal Distribution Amount" means, as of any Payment Date, an amount
equal to the principal received by the Trust with respect to the Class HE: A-1
Underlying Certificates for the related Underlying Payment Date.
"Rating Agencies" means, collectively, Moody's and Fitch, or any successors
thereto.
"Record Date" means, with respect to any Payment Date, the Business Day
immediately preceding the Swap Payment Date related to such Payment Date.
"Register" means the register maintained by the Registrar in accordance
with Section 4.03 hereof, in which the names of the Holders are set forth.
"Registrar" means the Trustee, acting in its capacity as Registrar
appointed pursuant to Section 4.03 hereof, or any duly appointed and eligible
successor thereto.
"Related Documents" means the Pooling and Servicing Agreement and the Swap
Agreement.
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"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.
"Servicer" means Green Tree Financial Corporation, a Delaware corporation,
and its permitted successors and assigns.
"Swap Agreement" means the Swap Agreement dated December 7, 1998 between
the Swap Counterparty and the Trustee.
"Swap Counterparty" means Westdeutsche Landesbank Girozentrale, through its
New York Branch .
"Swap Payment" means on each Swap Payment Date, (i) the amount that is
payable to the Trustee by the Swap Counterparty equal to Current Interest on the
Class HE: A-1 Certificates or (ii) the amount that is payable to the Swap
Counterparty by the Trustee, equal to interest received on such Payment Date on
the Class HE: A-1 Underlying Certificates, in each case in accordance with the
terms of the Swap Agreement.
"Swap Payment Date" means the fifteenth day of each calendar month, or if
such is not a Business Day, the next succeeding Business Day, commencing on
January 15, 1999 and ending on the Swap Termination Date.
"Swap Termination Date" means the earlier of (i) January 15, 2014 and (ii)
the date on which the Certificates and the Class HE: A-1 Underlying Certificates
have been in full.
"Tax Return" means the federal income tax return to be filed on behalf of
the Trust together with any and all other information reports or returns that
may be required to be furnished to the Holders of the Certificates or filed with
the Internal Revenue Service as any other governmental taxing authority under
any applicable provision of federal, state or local tax laws.
"Telerate Page 3750" means the display page so designated on the Dow ▇▇▇▇▇
Telerate Service (or such other page as may replace that page on that service,
or such other service as may be nominated as the information vendor by the
Calculation Agent, for the purpose of displaying London interbank offered rates
of major banks).
"Trust" means the trust created under this Agreement.
"Trust Account" means the account established in accordance with Section
5.02 hereof.
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"Trust Property" means the property and proceeds of every description
conveyed pursuant to Section 2.04 hereof, the Swap Agreement, and the Trust
Account, including all Eligible Investments therein and all proceeds thereof.
"Trustee" means U.S. Bank Trust National Association.
"Underlying Certificate Payment Date" means, with respect to any Payment
Date, the payment date with respect to the Class HE: A-1 Underlying Certificates
occurring in the same calendar month as the Payment Date.
"Underwriters" means Credit Suisse First Boston Corporation, Chase
Securities, Inc., First Union Capital markets, ▇▇▇▇▇▇ Brothers Inc., and ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co.
ARTICLE II
CREATION OF THE TRUST
Section 2.01 Establishment of the Trust. There is hereby formed a trust to
be known as "Green Tree Grantor Trust 1998-E," in which name the Trust may
conduct business, make and execute contracts and other instruments and ▇▇▇ and
be sued.
Section 2.02 Office. The office of the Trust shall be at the Corporate
Trust Office or at such other address as the Trustee, may designate by notice to
the Holders, the Depositor and the Servicer.
Section 2.03 Purposes and Powers. The sole purpose of the Trust is to
conserve the Trust Property and collect and disburse the periodic income
therefrom for the use and benefit of the Holders, and in furtherance thereof the
Trust shall have the power and authority to engage in the following activities:
(i) to issue the Certificates and to sell the Certificates; (ii) to acquire, own
and hold the Class HE: A-1 Underlying Certificates, execute the Swap Agreement
and make and receive payments in connection therewith; (iii) to distribute funds
in accordance with the terms hereof; (iv) to engage in those activities that are
necessary, suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith, including the investment of moneys in accordance
with this Agreement; and (v) to engage in those other activities as may be
required in connection with conservation of the Trust Property and the making of
distributions to the Holders. The Trust shall not engage in any activity other
than in connection with the foregoing or other than as required or expressly
authorized by the terms of this Agreement or the Related Documents. Similarly,
the Trustee shall have no discretionary duties other than performing those
ministerial acts set forth above necessary to accomplish the purpose of this
Trust as set forth in the introductory sentence of this Section.
Section 2.04 Contribution of Class HE: A-1 Underlying Certificates. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Trustee, as of the date hereof, the Class HE: A-1 Underlying Certificates.
Although the parties intend that each conveyance pursuant to this
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Agreement of the Depositor's right, title and interest in and to the Class HE:
A-1 Underlying Certificates shall constitute a purchase and sale and not a loan,
if such conveyance is deemed to be a loan, the parties intend that the rights
and obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. If the conveyance is deemed to be loan, the parties
further intend and agree that the Depositor shall be deemed to have granted to
the Trustee, and the Depositor does hereby grant to the Trustee, a perfected
first-priority security interest in the Trust Property and in the Class HE: A-1
Underlying Certificates, 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
Certificate, 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. The Trustee hereby acknowledges receipt in trust from
the Depositor, as of the date hereof, of the foregoing contribution.
Section 2.05 Expenses of Organization. The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Trustee, promptly reimburse the Trustee for any such expenses
paid by the Trustee.
Section 2.06 Declaration of Trust. The Trustee hereby declares that it will
hold the Trust Property in trust upon and subject to the conditions set forth
herein for the use and benefit of the Holders, subject to the interests and
rights in the Trust Property granted to other Persons by the Related Documents.
The Depositor, the Servicer, the Trustee and the Certificateholders, by
acceptance of the Certificates, each agree that the Trust is intended to be
treated as a grantor trust for federal income tax purposes under Subpart E, Part
I of Subchapter J of the Code. In furtherance of the foregoing, the Trustee (at
the direction of the Servicer), the Depositor and the Servicer shall take all
such action as is necessary to maintain the status of the Trust as a grantor
trust. After the Closing Date, neither the Trustee, the Depositor nor any
Servicer shall engage in any activity which would, directly or indirectly,
adversely affect the status of the Trust as a grantor trust. Any provision of
this Agreement to the contrary notwithstanding, the Trustee shall not, without
having obtained an opinion of counsel experienced in federal income tax matters
to the effect that such transaction does not result in a tax imposed on the
Trust (i) sell any assets included in the Trust Property other than pursuant to
Section 5.02(c) with respect to Eligible Investments in which the Trust Account
is invested, (ii) accept any contribution of assets after the Closing Date or
(iii) agree to any modification of this Agreement.
Section 2.07 Legal Title to Trust Property.
a. Legal title to all the Trust Property shall be vested at all times in
the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Property to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the
Trustee, a co-trustee and/or a separate trustee, as the case may be.
b. The Holders shall not have legal title to any part of the Trust
Property. The Holders shall be entitled to receive distributions with respect to
their undivided ownership interest therein only in accordance with Article V. No
transfer, by operation of law or otherwise, of any right, title or interest by
any Certificateholder of its ownership interest in the Trust Property shall
operate to
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terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Property.
Section 2.08 Situs of the Trust. It is the intention of the parties hereto
that the Trust constitute a trust under the laws of the State of Minnesota. The
Trust will be created and administered in, and all Accounts maintained by the
Trustee on behalf of the Trust will be located in, the State of Minnesota. The
Trust will not have any employees and will not have any real or personal
property located in any state other than in the State of Minnesota and payments
from the Trustee will be made only from the State of Minnesota. The Trust's only
office will be at the Corporate Trust Office.
Section 2.09 Covenants of the Holders. Each Holder agrees to be bound by
the terms and conditions of the Certificates of which such Holder is the
beneficial owner and of this Agreement, including any supplements or amendments
hereto and to perform the obligations of a Holder as set forth therein or
herein, in all respects as if it were a signatory hereto. This undertaking is
made for the benefit of the Trust, the Trustee and all other Holders present and
future.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE DEPOSITOR, THE SERVICER AND THE TRUSTEE
Section 3.01 Representations and Warranties of the Depositor. The Depositor
hereby represents and warrants to the Trustee and the Holders that as of the
Closing Date:
a. Organization and Good Standing. The Depositor 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 Depositor 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 Depositor.
b. Authorization; Binding Obligations. The Depositor has the power and
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement, and 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. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Depositor 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 Depositor is not required to obtain the consent
of any other party or any consent, license, approval or authorization from, or
registration or declaration
11
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 Depositor 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 Depositor, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Depositor is a
party or by which the Depositor may be bound.
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 Depositor threatened, against the Depositor or any of its properties or
with respect to this Agreement, which, if adversely determined, would in the
opinion of the Company have a material adverse effect on the transactions
contemplated by this Agreement.
Section 3.02 Representations and Warranties of the Servicer. The Servicer
hereby represents and warrants to the Trustee and the Holders that as of the
Closing Date:
a. Organization and Good Standing. The Servicer 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 Servicer 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 Servicer.
b. Authorization; Binding Obligations. The Servicer has the power and
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement, and 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. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Servicer 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 Servicer 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.
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d. No Violations. The execution, delivery and performance of this Agreement
by the Servicer 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 Servicer, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which the Servicer is a party or by
which the Servicer may be bound.
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 Servicer threatened, against the Servicer or any of its properties or
with respect to this Agreement, which, if adversely determined, would in the
opinion of the Company have a material adverse effect on the transactions
contemplated by this Agreement.
Section 3.03 Representations and Warranties of the Trustee. The Trustee
hereby represents and warrants to the Holders and the Servicer that as of the
Closing Date:
a. Organization and Good Standing. It is a banking corporation duly
organized and validly existing in good standing under the laws of the United
States. It has all requisite corporate power and authority and all franchises,
grants, authorizations, consents, orders and approvals from all governmental
authorities necessary to execute, deliver and perform its obligations under this
Agreement.
b. Authorization; Binding Obligations. It has taken all corporate action
necessary to authorize the execution and delivery by it of this Agreement and
each Related Document to which the Trust is a party, and this Agreement and each
Related Document will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement on its behalf. When
executed and delivered, this Agreement will constitute the legal, valid and
binding obligation of the Trustee 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 Violations. Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any Federal or Minnesota law, governmental rule or regulation governing the
banking or trust powers of the Trustee or any judgment or order binding on it,
or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound or result in the creation or
imposition of any lien, charge or encumbrance on the Trust Property resulting
from actions by or claims against the Trustee individually which are unrelated
to this Agreement or the Related Documents.
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ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates. Certificates, in an aggregate principal
amount of $330,000,000, shall be issued in denominations of $1,000 initial
principal amount and integral multiples thereof. The Certificates shall be
executed on behalf of the Trustee by manual or facsimile signature of any
authorized signatory of the Trustee having such authority under the Trustee's
seal imprinted or otherwise affixed thereon and attested on behalf of the
Trustee by the manual or facsimile signature of any authorized signatory of the
Trustee. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures were affixed, authorized to sign on
behalf of the Trustee shall be validly issued and entitled to the benefits of
this Agreement, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the authentication and delivery of such
Certificates.
Section 4.02 Authentication of Certificates. On the Closing Date the
Trustee shall cause Certificates in authorized denominations in an aggregate
principal amount equal to the Certificate Principal Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the order of the
Depositor. No Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Trustee or the Authentication Agent, by manual or
facsimile signature; such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and delivered
hereunder. U.S. Bank Trust National Association is hereby initially appointed
Authentication Agent. All Certificates shall be dated the date of their
authentication.
Section 4.03 Registration and Transfer of Certificates.
a. The Trustee shall keep at the Corporate Trust Office 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
is hereby initially appointed Certificate Registrar 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. No transfer of a 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 Plan,
at its own expense, delivers to the Depositor, the Trustee, and the Trustee
under the Pooling and Servicing Agreement, an Opinion of Counsel in form
satisfactory to the Depositor, the Trustee and the Trustee under the Pooling and
Servicing Agreement that the purchase and holding of the Certificate by such
Plan will not result in the assets of the Trust or the Green Tree Home
Improvement and Home Equity Loan Trust 1998-E being deemed to be "plan assets"
and subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee, the Trustee under the Pooling and Servicing
Agreement, the Depositor or the Servicer to any obligation or liability in
addition to those undertaken in this Agreement or in the
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Pooling and Servicing Agreement. Unless such opinion is delivered, each person
acquiring such a Certificate will be deemed to represent to the Trustee, the
Trustee under the Pooling and Servicing Agreement, the Depositor and the
Servicer either (i) that such person is neither a Plan, nor acting on behalf of
a Plan, subject to ERISA or to Section 4975 of the Code, or (ii) that the
purchase and holding of the Certificate by such Plan will not result in the
assets of the Trust or the Green Tree Home Improvement and Home Equity Loan
Trust 1998-E being deemed to be Plan assets and subject to the prohibited
transaction provisions of ERISA and the Code and will not subject the Trustee,
the Trustee under the Pooling and Servicing Agreement, the Depositor or the
Servicer to any obligation or liability in addition to those undertaken in this
Agreement or in the Pooling and Servicing Agreement.
c. Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Trustee shall execute, authenticate and deliver (or
shall cause the Authentication Agent to authenticate and deliver), in the name
of the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like class and aggregate proportion of Certificate
Principal Balance dated the date of authentication by the Trustee or any
authenticating agent. At the option of the Certificateholders, Certificates may
be exchanged for other Certificates of the same class in authorized
denominations of a like aggregate amount upon surrender of the Certificates to
be exchanged at the Corporate Trust Office.
d. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder or his attorney duly authorized in writing. Each Certificate surrendered
for registration of transfer or exchange shall be canceled and subsequently
disposed of by the Trustee in accordance with its customary practice.
e. No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
f. Except as provided in paragraph (g) 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 Certificates may not be
transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificateholders and
with respect to ownership and transfers of such Certificates; (iii) ownership
and transfers of registration of the 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 Certificateholders of the Certificates for purposes of exercising the rights
of Certificateholders 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 Certificateholders; 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
15
and persons shown on the books of such indirect participating firms as direct or
indirect Certificateholders. All transfers by Certificateholders of Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificateholder.
Each Depository Participant shall only transfer Book-Entry Certificates of
Certificateholders it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
g. If (x)(i) the Depository advises the Trustee in writing that the
Depository is no longer willing or able properly to discharge its
responsibilities as Depository and (ii) the Trustee is unable to locate a
qualified successor or (y) the Depository 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 Certificateholders, through the
Depository, of the occurrence of any such event and of the availability of
definitive, fully registered Certificates (the "Definitive Certificates") to
Certificateholders requesting the same. Upon surrender to the Trustee of the
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Depositor 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.
h. On or prior to the Closing Date, there shall be delivered to the
Depository one Certificate, in registered form registered in the name of the
Depository's nominee, Cede & Co., the total face amount of which represents 100%
of the Class. Each such Certificate registered in the name of the Depositary'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 the
Trustee 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."
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Section 4.04 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 4.04, 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 4.04 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 4.05 Persons Deemed Holders. Prior to due presentation of a
Certificate for registration of transfer, the Servicer, the Depositor, 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 Article V and for all other
purposes whatsoever, and none of the Servicer, the Depositor, the Trustee, the
Certificate Registrar, the Paying Agent or any agent of the Servicer, the
Depositor, the Trustee, the Paying Agent or the Certificate Registrar, shall be
affected by notice to the contrary.
Section 4.06 Access to List of Certificateholders' Names and Addresses. The
Trustee shall furnish or cause to be furnished to the Servicer, within 15 days
after receipt by the Trustee of a written request therefor, a list, in such form
as the Servicer may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date for payment of
distributions to Certificateholders. If Definitive Certificates have been issued
and three or more Certificateholders of a class, or one or more
Certificateholders evidencing not less than 25% of the Certificate Principal
Balance (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 that
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 current list of Certificateholders.
Every Certificateholder, by receiving and holding a Certificate, agrees that
none of the Servicer or the Trustee, nor any agent thereof, shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders under this Agreement, regardless of the
source from which such information was derived.
Section 4.07 Maintenance of Office or Agency. The Trustee shall maintain in
St. ▇▇▇▇, Minnesota, an office or offices or agency or agencies 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 the Related Documents may be served. The Trustee initially designates its
principal corporate trust office in St. ▇▇▇▇, Minnesota for such purposes. The
Trustee shall give
17
prompt written notice to the Depositor and to the Certificateholders of any
change in the location of the Certificate Register or any such office of agency.
Section 4.08 Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Trust Account pursuant to Article V
and shall report the amounts of such distributions to the Trustee. Any Paying
Agent shall have the revocable power to withdraw funds from the Trust Account
for the purpose of making the distributions referred to above. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in its
sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be U.S. Bank Trust National Association. U.S. Bank Trust National
Association shall be permitted to resign as Paying Agent upon 30 days' written
notice. In the event that U.S. Bank Trust National Association shall no longer
be the Paying Agent, the Trustee shall appoint a successor to act as Paying
Agent (which shall be a bank or trust company). The Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Trustee
to execute and deliver to the Trustee an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust for
the benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. The Paying Agent shall return all unclaimed
funds to the Trustee, and upon removal of a Paying Agent, such Paying Agent
shall also return all funds in its possession to the Trustee. Any reference in
this Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
ARTICLE V
TRUST ACCOUNT; APPLICATION OF TRUST FUNDS
Section 5.01 Collection of Money. Except as otherwise expressly provided
herein, the Trustee shall demand payment or delivery of all money and other
property payable to or receivable by the Trustee pursuant to this Agreement, the
Swap Agreement, or the Class HE: A-1 Underlying Certificates. The Trustee shall
hold all such money and property received by it as part of the Trust Property
and shall apply it as provided in this Agreement.
Section 5.02 Establishment of Trust Account.
a. On or before the Closing Date the Depositor shall cause the Servicer to
establish the Trust Account. The Trust Account shall be identified as follows:
"U.S. Bank Trust National Association, as Trustee under the Green Tree Grantor
Trust Agreement 1998-E dated as of December 1, 1998."
b. The Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Trust Account and in all proceeds thereof. If,
at any time, the Trust Account ceases to be an Eligible Account, the Trustee
shall within 5 Business Days (or such longer period, not to exceed 30 calendar
days, as to which each Rating Agency may consent) establish a new Trust
18
Account as an Eligible Account and shall transfer any cash and/or any
investments to such new Trust Account.
c. All amounts held in the Trust Account shall, to the extent permitted by
applicable laws, rules and regulations, be invested by the Trustee in Eligible
Investments pursuant to the written instructions of the Servicer that mature not
later than one Business Day prior to the Payment Date to which such amounts
relate. Investments in Eligible Investments shall be made in the name of the
Trust, and such investments shall not be sold or disposed of prior to their
maturity. Any investment of funds in the Trust Distribution Account shall be
made in Eligible Investments held by a financial institution with respect to
which (a) such institution has noted the Trustee's interest therein by book
entry or otherwise and (b) a confirmation of the Trustee's interest has been
sent to the Trustee by such institution, provided that such Eligible Investments
are (i) specific certificated securities, and (ii) either (A) in the possession
of such institution or (B) in the possession of a clearing corporation in New
York or Delaware, registered in the name of such clearing corporation, not
endorsed for collection or surrender or any other purpose not involving
transfer, not containing any evidence of a right or interest inconsistent with
the Trustee's security interest therein, and held by such clearing corporation
in an account of such institution. Subject to the other provisions hereof, the
Trustee shall have sole control over each such investment and the income
thereon, and any certificate or other instrument evidencing any such investment,
if any, shall be delivered directly to the Trustee or its agent, together with
each document of transfer, if any, necessary to transfer title to such
investment to the Trustee in a manner which complies with this Section 5.02. All
income and gain from such investments (net of investment losses) shall be added
to the Trust Account and distributed to the Depositor on each Payment Date.
Losses, if any, realized on amounts in the Trust Account invested pursuant to
this paragraph shall first be credited against undistributed investment earnings
on amounts in the Trust Account invested pursuant to this paragraph, and shall
thereafter be deemed to reduce the amount on deposit in the Trust Account and
otherwise available for distribution to Certificateholders pursuant to Article
V. The Depository, 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 Trust Account not so invested must be insured to the extent permitted by law
by the Federal Deposit Insurance Corporation. The Trustee may trade with itself
or an Affiliate in the purchase or sale of such Eligible Investments.
Section 5.03 Withdrawals and Application of Funds in Trust Account.
a. The Trustee shall deposit in the Trust Account, without duplication,
upon receipt, any payments received under the Swap Agreement, the proceeds of
any liquidation of the assets of the Trust, all remittances received from the
Green Tree Home Improvement and Home Equity Loan Trust 1998-E in respect of the
Underlying REMIC Certificate.
The Trustee shall, based on the information provided by the Servicer
pursuant to Section 9.01 hereof, make the following distributions and payments
in the following order of priority:
(i) On each Swap Payment Date, to the Swap Counterparty, the scheduled
payment due to the Swap Counterparty;
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(ii) On each Payment Date: (A) to the Holders of the Certificates, on
a pro rata basis, the sum of the Current Interest and any Unpaid Class HE:
A-1 Interest Shortfall distributed on the related Underlying Certificate
Payment Date with respect to the Class HE: A-1 Underlying Certificates; (B)
to the Holders of the Certificates, on a pro rata basis, the Principal
Distribution Amount;
(iii) On each Payment Date, to the Holders of the Certificates, on a
pro rata basis, any amounts received from the Swap Counterparty other than
the Swap Payment related to such Swap Payment Date.
b. (i) The Trustee may make withdrawals for its own account from the
amounts on deposit in the Trust Account for the following purposes:
(A) to make a disbursement to the Depositor on each Payment Date
of investment earnings (net of investment losses) on amounts on
deposit in the Trust Account;
(B) to withdraw amounts that have been deposited to the Trust
Account in error; and
(C) to clear and terminate the Trust Account following the
termination of the Trust pursuant to Article X.
Section 5.04 Method of Payment. Distributions required to be made to
Certificateholders on any Payment Date shall be made to each Certificateholder
of record on the preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Distribution Date and such Holder's Certificates in
the aggregate evidence a denomination of not less than $1,000,000 (or if such
Certificateholder is a Depository or an Affiliate thereof), or, if not, by check
mailed to such Certificateholder at the address of such holder appearing in the
Certificate Register.
Section 5.05 Accounting and Reports.
a. The Servicer shall prepare and furnish to the Trustee the statements
specified below relating to the Certificates on or before the second Business
Day next preceding each Swap Payment Date.
b. Concurrently with each distribution to Certificateholders the Trustee
shall forward or cause to be forwarded (i) either electronically or by telecopy
to the Swap Counterparty and the Backup Swap Counterparty and (ii) by mail to
each Certificateholder and (if the Depositor is not the Servicer) to the
Depositor a statement setting forth the following:
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(1) the amount of the Swap Payment paid by the Trustee to the Swap
Counterparty on the related Swap Payment Date;
(2) the amount of the Swap Payment received by the Trustee from the
Swap Counterparty on the related Swap Payment Date;
(3) The Class A-1 Floating Pass-Through Rate;
(4) the amount to be distributed to Certificateholders on such
Payment Date that is allocable to interest;
(5) the amount to be distributed to Certificateholders on such
Payment Date that is allocable to principal;
(6) the Certificate Principal Balance after giving effect to the
distribution of principal on such Payment Date; and
(7) all information with respect to such Payment Date that is
received by the Trust as owner of the Class HE: A-1 Underlying
Certificates.
In the case of information furnished pursuant to clauses (4), (5) and (6)
above, the amounts shall be expressed as a dollar amount per Certificate with a
1% Percentage Interest or per $1000 denomination of Certificate.
Within 75 days after the end of each calendar year the Trustee shall
furnish or cause to be furnished to each Person who at any time during the
calendar year was a Holder of a Certificate a statement containing the
information with respect to interest accrued and principal paid on its
Certificates during such calendar year. Such obligation shall be deemed to have
been satisfied to the extent that substantially comparable information shall be
provided or caused to be provided by the Trustee pursuant to the requirements of
the Code as from time to time in force.
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE
Section 6.01 General Authority. The Trustee is authorized and directed to
execute and deliver the Related Documents to which the Trust is to be a party
and each certificate or other document attached as an exhibit to or contemplated
by the Related Documents to which the Trust is to be a party and any amendment
thereto. In addition to the foregoing, the Trustee is authorized, but shall not
be obligated, to take all actions required of the Trust pursuant to the Related
Documents.
Section 6.02 General Duties. It shall be the duty of the Trustee to
discharge (or cause to be discharged through such agents as shall be appointed)
all of its responsibilities pursuant to the
21
terms of this Agreement and the Related Documents and to administer the Trust in
the interest of the Holders, subject to the Related Documents and in accordance
with the provisions of this Agreement. The Trustee undertakes to perform such
duties, and only such duties, as are specifically set forth in this Agreement or
as it shall be directed in writing by the instructing party. No implied
covenants or agreements shall be read into this Agreement.
Section 6.03 Action upon Instruction.
a. Subject to the terms of this Agreement, the Certificateholders shall
have the exclusive right to direct the actions of the Trustee in the management
of the Trust, so long as such instructions are not inconsistent with the express
terms set forth herein or in any Related Document. The Certificateholders shall
not instruct the Trustee in a manner inconsistent with this Agreement or the
Related Documents.
b. The Trustee shall not be required to take any action hereunder or under
any Related Document if the Trustee shall have reasonably determined, or shall
have been advised by counsel, that such action is contrary to the terms hereof
or of any Related Document or is otherwise contrary to law.
c. No provision of this Agreement shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
its duties hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it unless the Trustee has been provided security or indemnify satisfactory to it
against the costs, expenses and liabilities that may be incurred by the Trustee
in connection therewith.
d. In accepting the trusts hereby created, the Trustee acts solely as
trustee hereunder and not in its individual capacity. The Trustee agrees to
disburse all moneys actually received by it constituting part of the Trust
Property upon the terms of this Agreement. Notwithstanding anything in this
Agreement to the contrary, the Trustee, when acting in such capacity, shall not
be personally liable or accountable to any Person, under any circumstances,
except by reason of its gross negligence, willful misconduct or material breach
of its representations, warranties or covenants.
e. The Trustee shall be under no liability (except as provided in (d)
above) for any action taken by the Trustee in good faith in reliance upon any
paper, order, list, demand, request, consent, affidavit, notice, opinion,
direction, endorsement, assignment, resolution, draft or other document,
believed by it to be genuine and to have been signed by the proper party or
parties or for the disposition of moneys or Trust Property pursuant to this
Agreement. As to any fact or matter, the manner of ascertainment of which is not
specifically prescribed herein, the Trustee may for all purposes hereof rely on
a certificate, signed by the president or any vice president or by the treasurer
or other authorized officer of the relevant party, as to such fact or matter,
and such certificate shall constitute full protection to the Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
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f. Whenever the Trustee is unable to decide between alternative courses of
action permitted or required by the terms of this Agreement or any Related
Document, the Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and to the extent the
Trustee acts in good faith in accordance with any written instruction received
from Certificateholders representing 66% or more of the Percentage Interests of
the Certificates, the Trustee shall not be liable on account of such action to
any Person. If the Trustee shall not have received appropriate instruction
within ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Related
Documents, as it shall deem to be in the best interests of the Holders, and
shall have no liability to any Person for such action or inaction.
g. In the event that the Trustee is unsure as to the application of any
provision of this Agreement or any Related Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Trustee or is silent or is incomplete as to the course of
action that the Trustee is required to take with respect to a particular set of
facts, the Trustee may give notice (in such form as shall be appropriate under
the circumstances) to the Certificateholders requesting instruction and, to the
extent that the Trustee acts or refrains from acting in good faith in accordance
with any such instruction received from Certificateholders representing 66% or
more of the Percentage Interests of the Certificates, the Trustee shall not be
liable, on account of such action or inaction, to any Person. If the Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action, not inconsistent with this
Agreement or the Related Documents, as it shall deem to be in the best interests
of the Holders, and shall have no liability to any Person for such action or
inaction.
Section 6.04 No Duties Except as Specified in this Agreement or in
Instructions. The Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, dispose of, or otherwise
deal with the Trust Property, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Trust is a party, except as expressly provided by the terms of this
Agreement or in any written instruction received by the Trustee pursuant to
Section 6.03; and no implied duties or obligations shall be read into this
Agreement or any Related Document against the Trustee. The Trustee shall have no
responsibility for preparing, monitoring or filing any financing or continuation
statements in any public office at any time or otherwise to perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
record this Agreement or any Related Document; however, the Trustee will execute
and deliver such financing or continuation statements as are prepared by the
Servicer and delivered to the Trustee in final execution form for its execution
on behalf of the Trust for the purpose of perfecting or maintaining the
perfection of such a security interest or lien or effecting such a recording.
The Trustee nevertheless agrees that it will, at its own cost and expense (and
not at the expense of the Trust), promptly take all action as may be necessary
to discharge any liens on any part of the Trust Property that are attributable
to claims against the
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Trustee in its individual capacity that are not related to the ownership or the
administration of the Trust Property.
Section 6.05 No Action Except under Specified Documents or Instructions.
The Trustee shall not manage, control, use, sell, dispose of or otherwise deal
with any part of, the Trust Property except (i) in accordance with the powers
granted to and the authority conferred upon the Trustee pursuant to this
Agreement, (ii) in accordance with the Related Documents and (iii) in accordance
with any document or instruction delivered to the Trustee pursuant to Section
6.03.
Section 6.06 Restrictions. The Trustee shall not take any action that is
inconsistent with the purposes of the Trust set forth in Section 2.03. The
Holders shall not direct the Trustee to take action that would violate the
provisions of this Section.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01 Acceptance of Trust and Duties. The Trustee accepts the trusts
hereby created and agrees to perform its duties hereunder with respect to such
trusts but only upon the terms of this Agreement. The Trustee also agrees to
disburse all monies actually received by it constituting part of the Trust
Property upon the terms of the Related Documents and this Agreement. The Trustee
shall not be answerable or accountable hereunder or under any Related Document
under any circumstances, except (i) for its own willful misconduct or gross
negligence, (ii) in the case of the material inaccuracy of any representation or
warranty contained in Section 3.03, (iii) for liabilities arising from the
failure of the Trustee to perform obligations expressly undertaken by it in the
last sentence of Section 6.04 hereof, (iv) for any investments issued by the
Trustee or any branch or affiliate thereof in its commercial capacity or (v) for
taxes, fees or other charges on, based on or measured by, any fees, commissions
or compensation received by the Trustee in connection with any of the
transactions contemplated by this Agreement or any Related Document. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
a. the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Trustee;
b. the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the instructions of
the Certificateholders;
c. no provision of this Agreement or any Related Document shall require the
Trustee to expend or risk funds or otherwise incur any financial liability in
the performance of any of its rights or powers hereunder or under any Related
Document if the Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it unless the Trustee has been provided
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Trustee in connection therewith;
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d. under no circumstances shall the Trustee be liable for indebtedness
evidenced by or arising under this Agreement or any of the Related Documents,
including the principal of and interest on the Certificates;
e. the Trustee shall not be responsible for or in respect of the recitals
herein, the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness, sufficiency,
value or validity of any of the Trust Property or for or in respect of the
validity or sufficiency of the Related Documents, other than the certificate of
authentication on the Certificates, and the Trustee shall in no event assume or
incur any liability, duty, or obligation to any Holder other than as expressly
provided for herein and in the Related Documents;
f. the Trustee shall not be liable for the default or misconduct of the
Servicer and the Trustee shall have no obligation or liability to monitor the
performance of or to perform the obligations of the Trust under this Agreement
or the Related Documents that are required to be performed by the Servicer;
g. 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 under this Agreement or otherwise or in relation to this Agreement or
any Related Document, at the request, order or direction of the
Certificateholders, unless such Certificateholders have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Trustee therein or thereby. The right of
the Trustee to perform any discretionary act enumerated in this Agreement or in
any Related Document shall not be construed as a duty, and the Trustee shall not
be answerable for other than its gross negligence or willful misconduct in the
performance of any such act;
h. The Trustee shall not be under any obligation to appear in, prosecute or
defend any action, which in its opinion may require it to incur any out-of-
pocket expense or any liability unless it shall be furnished with such
reasonable security and indemnity against such expense or liability as it may
require in accordance with the terms hereof. The Trustee may, but shall be under
no duty to, undertake such action as it may deem necessary at any and all times
to protect the Trust Property and the respective rights and interests of the
Holders pursuant to the terms of the Indenture and this Agreement;
i. The Trustee may consult with counsel, and the written advice of counsel
or any opinion of counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by the Trustee in good
faith reliance thereon; and
j. Notwithstanding anything contained herein to the contrary, the Trustee
shall not be required to take any action in any jurisdiction other than in the
State of Minnesota if the taking of such action will (i) require the consent or
approval or authorization or order of or giving of notice to, or the
registration with or the taking of any other action in respect of, any state or
other governmental authority or agency of any jurisdiction other than the State
of Minnesota; (ii) result in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivisions thereof in existence on
the date hereof other than the State of Minnesota becoming
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payable by Trustee; or (iii) subject the Trustee to personal jurisdiction in any
jurisdiction other than the State of Minnesota for causes of action arising from
acts unrelated to the consummation of the transactions by the Trustee
contemplated hereby. The Trustee shall be entitled to obtain an opinion of
counsel to determine whether any action required to be taken pursuant to this
Agreement results in the consequences described in clauses (i), (ii) and (iii)
of the preceding sentence. In the event that said counsel advises the Trustee
that such action will result in such consequences, the Trustee will appoint an
additional or separate trustee to proceed with such action.
Section 7.02 Furnishing of Documents. The Trustee shall furnish to a
Holder, at the Holder's expense, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Trustee under the Related Documents unless the Holders have previously received
such items.
Section 7.03 Reliance; Advice of Counsel.
a. The Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The Trustee may
accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Trustee may for all purposes hereof rely
on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
b. In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Related
Documents, the Trustee (i) may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, and the Trustee shall not
be liable for the conduct or misconduct of such agents or attorneys if such
agents or attorneys shall have been selected by the Trustee with reasonable
care, and (ii) may consult with counsel, accountants and other skilled persons
to be selected with reasonable care and employed by it. The Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such persons and not contrary to this Agreement or any Related Document.
Section 7.04 Not Acting in Individual Capacity. Except as provided in this
Article VIII, in accepting the trusts hereby created U.S. Bank Trust National
Association acts solely as Trustee hereunder and not in its individual capacity
and all Persons having any claim against the Trustee by reason of the
transactions contemplated by this Agreement or any Related Document shall look
only to the Trust Property for payment or satisfaction thereof.
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Section 7.05 Trustee Not Liable for Certificates or Contracts. The recitals
contained herein and in the Certificates (other than the signature and
counter-signature of the Trustee on the Certificates) shall be taken as the
statements of the Depositor, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representations as to the validity or
sufficiency of this Agreement, of any Related Document or of the Certificates
(other than the signature and counter-signature of the Trustee on the
Certificates) or of any contract or related documents. The Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Contract, or for or with respect to the
sufficiency of the Trust Property or its ability to generate the payments to be
distributed to Certificateholders under this Agreement.
Section 7.06 Trustee May Own Certificates. The Trustee in its individual or
any other capacity may become the owner or pledgee of Certificates and may deal
with the Depositor and the Servicer in banking or other transactions with the
same rights as it would have if it were not Trustee.
ARTICLE VII
COMPENSATION OF TRUSTEE
Section 8.01 Trustee's Fees and Expenses. The Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
upon before the date hereof between Depositor and the Trustee (or, with respect
to any successor Trustee, reasonable compensation for all services rendered by
it hereunder), and the Trustee shall be entitled to be reimbursed by Depositor
for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Trustee may employ in connection with the exercise
and performance of its rights and its duties hereunder; provided, however, that
the Trustee shall only be entitled to reimbursement for legal expenses hereunder
to the extent such expenses are fees of outside counsel engaged by the Trustee
in respect of the performance of its obligations hereunder.
Section 8.02 Indemnification. The Depositor shall be liable as primary
obligor for, and shall indemnify the Trustee in its individual capacity and its
successors, assigns, officers, directors, employees, agents and servants, and
any co-trustee (collectively, the "Indemnified Parties") from and against, any
and all liabilities, obligations, losses, damages, taxes, claims, actions and
suits, and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the Related Documents, the Trust Property, the
administration of the Trust Property or the action or inaction of the Trustee
hereunder, except only that the Depositor shall not be liable for or required to
indemnify the Trustee from and against expenses arising or resulting from any of
the matters described in the third sentence of Section 7.01. The indemnities
contained in this Section shall survive the resignation or termination of the
Trustee or the termination of this Agreement.
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Section 8.03 Nonrecourse Obligations. Notwithstanding anything in this
Agreement or any Related Document, the Trustee agrees in its individual capacity
and in its capacity as Trustee for the Trust that all obligations of the Trust
to the Trustee individually or as Trustee for the Trust shall be recourse to the
Trust Property only and specifically shall not be recourse to the assets of any
Holder.
ARTICLE IX
THE SERVICER
Section 9.01 Duties.
a. By no later than noon on the second Business Day preceding each Swap
Payment Date the Servicer shall (i) determine the payment due to the Trustee
under Section 2(a) of the Confirmation to the Swap Agreement (which shall equal
the Current Interest for the related Payment Date on the Certificates), and the
payment due to the Swap Counterparty under Section 2(b) of the Confirmation to
the Swap Agreement (which shall equal the interest to be received on the related
Underlying Certificate Payment Date on the Class HE: A-1 Underlying
Certificates), and (ii) notify the Trustee and the Swap Counterparty of such
amounts.
b. On the Business Day preceding each Payment Date the Servicer shall
deliver to the Trustee a report containing the information set out in Section
5.05(b).
c. The Servicer shall furnish to the Trustee during the term of this
Agreement such periodic, special or other reports or information not
specifically provided for herein as may be, in the reasonable judgment of the
Trustee, necessary or appropriate, all such reports or information to be
provided in accordance with the instructions and instructions of the Trustee,
provided that the Servicer shall be entitled to be reimbursed by the Trustee for
the fees and actual expenses associated with providing such reports or
information of such reports or information are not generally produced by the
Servicer in the ordinary course of business.
Section 9.02 Indemnification. The Servicer shall defend and indemnify the
Trust, the Trustee (including any 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, in respect of any failure by the Servicer to perform its duties
hereunder. This indemnity shall survive any Service Transfer (but the original
Servicer's obligations under this Section 9.02 shall not relate to any actions
of any subsequent Servicer after a Service Transfer). Indemnification under this
Section shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If 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 Servicer without interest.
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Section 9.03 Compensation. The fee payable to the Servicer under the
Pooling and Servicing Agreement shall be, in part, compensation for the
activities of the Servicer hereunder, and the Servicer shall not be entitled to
any further compensation.
Section 9.04 Delegation. The Servicer may not delegate its obligations
under this Agreement, in whole or in part, unless it shall have first obtained
the written consent of the Trustee, which consent shall not be unreasonably
withheld; provided, however, that any delegatee must meet the eligibility
requirements set forth in the Pooling and Servicing Agreement for a successor
Servicer.
Section 9.05 Payment of Taxes. The Servicer shall be responsible for and
agrees to prepare, make and timely 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 Trust
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 Trust 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 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 Trust. The
Servicer shall represent the Trust in connection with all examinations of the
Trust'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 Servicer in such matters and to do or
refrain from doing any or all things reasonably required by the Servicer to
conduct such proceedings, provided that no such action shall be required by the
Servicer of any Certificateholder that would entail unnecessary or unreasonable
expenses for such Certificateholder in the performance of such action.
Section 9.06 Removal of Servicer; Resignation of Servicer.
a. The removal or resignation pursuant to the Pooling and Servicing
Agreement of the Servicer as defined in the Pooling and Servicing Agreement
shall also constitute a removal or resignation of the Servicer hereunder.
b. The successor Servicer appointed pursuant to the Pooling and Servicing
Agreement shall become the successor Servicer hereunder.
c. No removal or resignation of the Servicer shall become effective
hereunder until the Trustee under the Pooling and Servicing Agreement or a
successor Servicer shall have assumed the Servicer's responsibilities and
obligations in accordance with the Pooling and Servicing Agreement.
29
d. The Servicer shall not resign from the obligations and duties hereby
imposed on it, except upon determination that its duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it, the other activities
of the Servicer so causing such a conflict being of a type and nature carried on
by the Servicer at the date of this Agreement. Any such determination permitting
the resignation of the Servicer shall be evidenced by an opinion of counsel to
such effect which shall be delivered to the Trustee, which opinion shall be at
the Servicer's expense.
e. Upon removal or resignation of the Servicer, the Servicer at its own
expense also shall promptly deliver or cause to be delivered to a successor
Servicer or the Trustee all the books and records (including, without
limitation, records kept in electronic form) that the Servicer has maintained
for the Class HE: A-1 Underlying Certificates, including all tax bills,
assessment notices, insurance premium notices and all other documents as well as
all original documents then in the Servicer's possession.
f. Any collections then being held by the Servicer prior to its removal and
any collections received by the Servicer after removal or resignation shall be
endorsed by it to the Trustee and remitted directly and immediately to the
Trustee or the successor Servicer.
g. The Trustee and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. The
Servicer agrees to cooperate with the Trustee and any successor Servicer in
effecting the termination of the Servicer's servicing responsibilities and
rights hereunder and shall promptly provide the Trustee or such successor
Servicer, as applicable, all documents and records reasonably requested by it to
enable it to assume the Servicer's functions hereunder and shall promptly also
transfer to the Trustee or such successor Servicer, as applicable, all amounts
which then have been or should have been deposited in the Trust Account by the
Servicer or which are thereafter received with respect to the Certificates.
Neither the Trustee nor any other successor Servicer shall be held liable by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Servicer to
deliver, or any delay in delivering, cash, documents or records to it, or (ii)
restrictions imposed by any regulatory authority having jurisdiction over the
Servicer. If the Servicer resigns or is replaced hereunder, the Servicer agrees
to reimburse the Trust, the Holders for the costs and expenses associated with
the transfer of servicing to the replacement Servicer.
h. The Servicer which is being removed or is resigning shall give notice to
the Holder and Rating Agencies of the transfer of the servicing to the successor
Servicer.
ARTICLE X
TERMINATION OF TRUST
Section 10.01 Termination of Trust. The Trust created hereunder and all
obligations created by this Agreement will terminate upon the payment to the
Holders of all Certificates, of all amounts held by the Trustee and required to
be paid to such Holders pursuant to this Agreement upon the
30
final payment or other liquidation (or any advance made with respect thereto) of
the Class HE: ▇- ▇ Underlying Certificates. In no event, however, will the Trust
created by this Agreement continue beyond the expiration of twenty-one (21)
years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of Saint ▇▇▇▇▇,
living on the date hereof. The Trustee shall give written notice of termination
of the Agreement to each Holder in the manner set forth in Section 12.09.
Section 10.02 Disposition of Proceeds. The Trustee shall, upon receipt
thereof, deposit the proceeds of any liquidation of the Trust Property pursuant
to this Article X to the Trust Account.
ARTICLE XI
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
Section 11.01 Corporate Trustee Required; Eligibility. 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 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 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 11.01, 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 (or, if the Trustee is U.S. Bank Trust National
Association, any parent company of U.S. Bank Trust National Association) shall
at all times have a long-term deposit rating from ▇▇▇▇▇'▇ of at least Baa3 or as
shall be otherwise acceptable to ▇▇▇▇▇'▇ and have a long- term deposit rating
from Fitch of at least BBB or as shall be otherwise acceptable to Fitch. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall, upon the request of the Depositor, resign
immediately in the manner and with the effect hereinafter specified in this
Article XI.
Section 11.02 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 Depositor at least 30 days
before the date specified in such instrument. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Trustee meeting
the qualifications set forth in Section 11.1 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and 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.
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If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 11.1 and shall fail to resign after written request
therefor by the Depositor or if at any time the Trustee shall be legally unable
to act, or shall be adjudged 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 Depositor may remove the
Trustee. If the Depositor shall remove the Trustee under the authority of the
immediately preceding sentence, the Depositor shall promptly appoint a successor
Trustee meeting the qualification requirements of Section 11.1 by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
outgoing Trustee so removed and one copy to the successor Trustee and payment of
all fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section shall not become
effective until all fees and expenses, including any indemnity payments, due to
the outgoing Trustee have been paid and until acceptance of appointment by the
successor Trustee. The Depositor shall provide notice of such resignation or
removal of the Trustee to each of the Rating Agencies.
Section 11.03 Successor Trustee.
Any successor Trustee appointed pursuant to Section 11.2 shall execute,
acknowledge and deliver to the Depositor and to its predecessor Trustee an
instrument accepting such appointment under this Agreement, 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
become fully vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Trustee. The predecessor Trustee shall deliver to the successor Trustee all
documents and statements and monies held by it under this Agreement; and the
Depositor 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 unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 11.1. Upon acceptance of appointment by a
successor Trustee pursuant to this Section, the Servicer shall mail notice of
the successor of such Trustee to all Certificateholders and the Rating Agencies.
If the Servicer shall fail to mail such notice within 10 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 11.04 Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be eligible pursuant to Section 11.1, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary
32
notwithstanding, and provided further that the Trustee shall mail notice of such
merger or consolidation to the Rating Agencies.
Section 11.05 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Property may at the time be located, the Depositor and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as co-
trustee, jointly with the Trustee, or separate trustee or separate trustees, of
all or any part of the Trust Property, and to vest in such Person, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section, such powers, duties, obligations, rights and
trusts as the Trustee may consider necessary or desirable. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 11.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 11.1. Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Trustee shall be conferred upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties,
and obligations (including the holding of title to the Trust Property or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Depositor and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Each
such instrument shall be filed with the Trustee and a copy thereof given to the
Depositor.
33
Any separate trustee or co-trustee may at any time appoint the Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE XII
MISCELLANEOUS
Section 12.01 Limitation of Suits. No Holder shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Agreement,
the Swap Agreement, or for the appointment of a receiver or Trustee of the
Trust, or for any other remedy with respect to a breach hereunder, unless:
(1) such Holder has previously given written notice to the Depositor
and the Trustee of such Holder's intention to institute such
proceeding;
(2) the Holders of not less than 25% of the Percentage Interests
represented by the Certificates then Outstanding shall have made
written request to the Trustee to institute such proceeding in
its own name as Trustee;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of
a majority of the Percentage Interests represented by the
Certificates;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing themselves of,
any provision of this Agreement to affect, disturb or prejudice the rights
of any other Holder or to obtain or to seek to obtain priority or
preference over any other Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
Section 12.02 Notices and Reports to Holders; Waiver of Notices. Where this
Agreement provides for notice to Holders of any event or the mailing of any
report to Holders, such notice or report shall be sufficiently given (unless
otherwise herein expressly provided) if mailed, first-class postage prepaid, to
each Holder affected by such event or to whom such report is required to be
34
mailed, at the address of such Holder as it appears on the Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice or the mailing of such report. In any case where a notice
or report to Holders is mailed in the manner provided above, neither the failure
to mail such notice or report nor any defect in any notice or report so mailed
to any particular Holder shall affect the sufficiency of such notice or report
with respect to other Holders, and any notice or report which is mailed in the
manner herein provided shall be conclusively presumed to have been duly given or
provided. Notwithstanding the foregoing, if the Servicer is removed or resigns
or the Trust is terminated, notice of any such events shall be made by overnight
courier, registered mail or telecopy followed by a telephone call. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver. In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Agreement, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice. Where this Agreement provides for notice to any Rating Agency
that rated any Certificates, failure to give such notice shall not affect any
other rights or obligations created hereunder.
Section 12.03 Rules by Trustee. The Trustee may make reasonable rules for
any meeting of Holders.
Section 12.04 Successors and Assigns. All covenants and agreements in this
Agreement by any party hereto shall bind its successors and assigns, whether so
expressed or not.
Section 12.05 Severability. In case any provision in this Agreement or in
the Certificates shall be invalid, illegal or unenforceable, the validity,
legality and enforeceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 12.06 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota without regard
to the principles of conflicts of laws thereof and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
Section 12.07 Counterparts. This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 12.08 Amendment.
a. This Agreement may be amended by the Depositor and the Trustee, without
the consent of any of the Certificateholders, (i) to cure any ambiguity, or (ii)
to correct, supplement or modify any provisions in this Agreement; provided,
however, that such action shall not, as evidenced
35
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Certificateholder.
b. This Agreement may also be amended from time to time, by the Depositor
and the Trustee with the consent of holders of a majority of the Percentage
Interests of the Certificates (which consent of any Holder of a Certificate
given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Certificate and of any Certificate issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Certificate) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (a) increase or
reduce in any manner the Class HE:A-1 Floating Rate or the amount of, or
accelerate or delay the timing of distributions that shall be required to be
made on any Certificate, or (b) reduce the aforesaid percentage required to
consent to any such amendment or any waiver hereunder, without the consent of
the Holders of all Certificates then outstanding.
c. Prior to the execution of any such amendment or consent, the Trustee
shall furnish written notification of the substance of such amendment or consent
to each Rating Agency.
d. Promptly after the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder unless such parties have previously received
such notification.
e. It shall not be necessary for the consent of Certificateholders pursuant
to Section 12.08(b) to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Certificateholders provided for in this Agreement) and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Trustee may prescribe, including the
establishment of record dates.
f. Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to the execution and delivery of such amendment
have been satisfied. The 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.
Section 12.09 Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Depositor, at the following address: c/o Green
Tree Financial Corporation, 1100 Landmark Towers, ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer, (b) in the case
of the Trustee, at the Corporate Trust Office, (c) in the case of Fitch, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (d) in
the case of ▇▇▇▇▇'▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Monitoring Department (a) in the case of
the Swap Counterparty, 1211 Avenue of the Americas - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ and (b) in the case of the Backup Swap Counterparty, New York Branch,
Eleven Madison Avenue, New York, New York 10010-3629, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Asset Finance Department, or at such other address as shall be designated by any
such party in a written notice to the other parties. Notwithstanding the
foregoing, any notice required or permitted to be mailed to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register, and any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 12.10 Rights and Remedies Cumulative. Except as otherwise provided
herein, no right or remedy herein conferred upon or reserved to the Trustee or
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. Except as otherwise provided herein,
the assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 12.11 Delay or Omission Not Waiver. No delay of the Trustee, or any
Holder of any Certificate to exercise any right or remedy under this Agreement
shall impair any such right or remedy or constitute a waiver of any such event
or an acquiescence therein. Every right and remedy given by this Agreement or by
law to the Trustee or the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or the Holders, as the case may
be.
Section 12.12 Third-Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise provided in this
Agreement, no other Person shall have any right or obligation hereunder.
37
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized, all as of the
day and year first above written.
GREEN TREE FINANCIAL
CORPORATION, as Depositor and as
Servicer
By
------------------------------------
Title: Senior Vice President and Treasurer
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By
------------------------------------
Title: Assistant Vice President
38
EXHIBIT A
FORM OF CLASS HE: A-1 CERTIFICATE
Class HE: A-1 No.
First Payment Date Pass-Through Rate: [ ___%]
January 18, 1999 [Variable rate equal to Class
HE: A-1 Pass-Through Rate]
Denomination: $________
Aggregate Denomination of
all Class HE: A-1
Certificates: $330,000,000
Servicer: Final Scheduled Payment Date:
Green Tree Financial Corporation November 18, 2029 (or if such day is
not a Business Day, then the next
succeeding Business Day)
CUSIP: ________
GREEN TREE GRANTOR TRUST
SERIES 1998-E, CLASS HE: A-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 _________________ is the registered owner of the
undivided Percentage Interest represented by the original principal amount set
forth above in the Green Tree Grantor Trust 1998-E (the "Trust"). The Trust has
been created pursuant to a Grantor Trust Agreement (the "Agreement"), dated as
of December 1, 1998, between Green Tree Financial Corporation, as Depositor and
Servicer (the "Company"), and U.S. Bank Trust 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.
A-1
The Agreement contemplates, subject to its terms, payment on the eighteenth
day (or if such day is not a Business Day, the next succeeding Business Day)
(the "Payment Date") of each calendar month commencing January 1999, so long as
the Agreement has not been terminated, by check (or, if such Certificateholder
holds Certificates with an aggregate Percentage Interest of at least 5% of the
Certificates and so desires, by wire transfer pursuant to instructions delivered
to the Trustee at least 10 days prior to such Payment Date) to the registered
Certificateholder at the address appearing on the Certificate Register as of the
Business Day immediately preceding such Payment Date, in an amount equal to the
Certificateholder's Percentage Interest of the amount specified in Section
5.03(a)(ii) of the Agreement for such Payment Date. The final scheduled Payment
Date of this Certificate is November 18, 2029 or the next succeeding Business
Day if such November 18 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.
No transfer of this Certificate or any interest herein by, on behalf of or
with plan assets of any employee benefit plan, trust or account that is subject
to the Employment Retirement Income Security Act of 1974, as amended ("ERISA"),
or that is described in Section 4975(e)(1) of the Code (each, a "Plan") will be
registered unless the transferee, at its expense, delivers to the Depositor and
the Trustee an opinion of counsel (satisfactory to the Depositor and the
Trustee) that the purchase and holding of this Certificate by such Plan will not
result in the assets of the Trust being deemed to be "plan assets" and subject
to the prohibited transaction provisions of ERISA and the Code and will not
subject the Trustee, the Depositor or the Servicer to any obligation or
liability in addition to those undertaken in the Agreement. Unless such opinion
is delivered, each person acquiring this Certificate will be deemed to represent
to the Trustee, the Depositor and the Servicer either (i) that such person is
neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to Section
4975 of the Code, or (ii) that the purchase and holding of this Certificate by
such Plan will not result in the assets of the Trust being deemed to be Plan
assets and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Trustee, the Depositor or the Servicer to any
obligation or liability in addition to those undertaken 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
▇-▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the holder hereof 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 the Trustee 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 in as much 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.
IN WITNESS WHEREOF, Green Tree Grantor Trust 1998-E has caused this
Certificate to be duly executed by the manual signature of a duly authorized
officer of the Trustee.
Dated: ____________, 1998 GREEN TREE GRANTOR TRUST 1998-E
By U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By:
----------------------------------
Authorized Officer
A-3
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________________ the within Certificate of the Green Tree
Grantor Trust, Series 1998-E, 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
----------------------------------
Signature
A-4