EXHIBIT 4.1
GREENPOINT CREDIT, LLC,
CONTRACT SELLER AND SERVICER,
and
BANK ONE, NATIONAL ASSOCIATION
TRUSTEE
POOLING AND SERVICING AGREEMENT (SERIES 2000-6)
Dated as of December 1, 2000
GreenPoint Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2000-6
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS......................................................................................... 1
Section 1.01 Terms.......................................................................................... 1
ARTICLE II CONVEYANCE OF CONTRACTS, REPRESENTATIONS AND WARRANTIES............................................. 23
Section 2.01 Conveyance of Contracts........................................................................ 23
Section 2.02 Filing and Assignment.......................................................................... 24
Section 2.03 Acceptance by Trustee.......................................................................... 24
Section 2.04 Trustee Receipt of Documents................................................................... 25
Section 2.05 Representations and Warranties Regarding the Servicer.......................................... 26
Section 2.06 Covenants of the Contract Seller, Trustee and Servicer......................................... 27
Section 2.07 Authentication and Delivery of Certificates.................................................... 27
Section 2.08 Covenants of the Servicer...................................................................... 27
Section 2.09 Covenants of the Contract Seller............................................................... 27
ARTICLE III REPRESENTATIONS AND WARRANTIES BY THE CONTRACT SELLER............................................... 28
Section 3.01 Representations and Warranties of the Contract Seller.......................................... 28
Section 3.02 Representations and Warranties Regarding Each Contract......................................... 29
Section 3.03 Representations and Warranties Regarding the Contracts in the Aggregate........................ 33
Section 3.04 Representations and Warranties Regarding the Contracts......................................... 34
Section 3.05 Repurchases of Contracts or Substitution of Contracts for Breach of Representations and
Warranties..................................................................................... 34
Section 3.06 General........................................................................................ 37
ARTICLE IV ADMINISTRATION AND SERVICING OF CONTRACTS........................................................... 38
Section 4.01 Responsibility for Contract Administration and Servicing....................................... 38
Section 4.02 Standard of Care............................................................................... 38
Section 4.03 Records........................................................................................ 38
Section 4.04 Inspection..................................................................................... 39
Section 4.05 Establishment of and Deposits in Certificate Account........................................... 39
Section 4.06 Payment of Taxes............................................................................... 40
Section 4.07 Enforcement.................................................................................... 41
Section 4.08 Transfer of Certificate Account................................................................ 42
Section 4.09 Maintenance of Hazard Insurance Policies....................................................... 42
-i-
TABLE OF CONTENTS
(continued)
Page
Section 4.10 Fidelity Bond and Errors and Omissions Insurance............................................... 43
Section 4.11 Collections under Hazard Insurance Policies, Consent to Transfers of Manufactured Homes,
Assumption Agreements.......................................................................... 44
Section 4.12 Realization upon Defaulted Contracts........................................................... 44
Section 4.13 Costs and Expenses............................................................................. 45
Section 4.14 Trustee to Cooperate........................................................................... 45
Section 4.15 Servicing and Other Compensation............................................................... 46
Section 4.16 Custody of Contracts........................................................................... 46
Section 4.17 REMIC Compliance............................................................................... 49
Section 4.18 Management of REO Property..................................................................... 53
Section 4.19 Reports to the Securities and Exchange Commission.............................................. 55
Section 4.20 Annual Statement as to Compliance.............................................................. 55
Section 4.21 Annual Independent Public Accountants' Servicing Report........................................ 55
Section 4.22 Recording of Assignments of Mortgage........................................................... 56
Section 4.23 Notice of Rating Change........................................................................ 56
ARTICLE V PAYMENTS, MONTHLY ADVANCES AND MONTHLY REPORTS...................................................... 57
Section 5.01 Monthly Advances by the Servicer............................................................... 57
Section 5.02 Payments....................................................................................... 58
Section 5.03 Permitted Withdrawals from the Certificate Account............................................. 60
Section 5.04 Monthly Reports................................................................................ 62
Section 5.05 Certificate of Servicing Officer............................................................... 64
Section 5.06 Other Data..................................................................................... 64
Section 5.07 Statements to Certificateholders............................................................... 64
Section 5.08 Certificate Insurance Policy; Preference Claims; Surrender of Policy........................... 65
Section 5.09 Swap; Swap Amounts............................................................................. 67
Section 5.10 Hedge Agreement................................................................................ 68
ARTICLE VI THE CERTIFICATES.................................................................................... 68
Section 6.01 The Certificates............................................................................... 68
Section 6.02 Certificate Register; Registration of Transfer and Exchange of Certificates.................... 69
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.............................................. 73
-ii-
TABLE OF CONTENTS
(continued)
Page
Section 6.04 Persons Deemed Owners.......................................................................... 73
Section 6.05 Access to List of Certificateholders' Names and Addresses...................................... 73
Section 6.06 Global Certificates............................................................................ 74
Section 6.07 Notices to Depository.......................................................................... 75
Section 6.08 Definitive Certificates........................................................................ 75
ARTICLE VII THE CONTRACT SELLER AND THE SERVICER................................................................ 75
Section 7.01 Liabilities to Obligors........................................................................ 75
Section 7.02 Servicer's Indemnities......................................................................... 76
Section 7.03 Operation of Indemnities....................................................................... 76
Section 7.04 Merger or Consolidation of the Contract Seller or the Servicer................................. 76
Section 7.05 Limitation on Liability of the Contract Seller, the Servicer and Others........................ 77
Section 7.06 Assignment by Servicer......................................................................... 77
Section 7.07 Successor to the Servicer...................................................................... 78
Section 7.08 Term of Servicer............................................................................... 79
ARTICLE VIII EVENTS OF DEFAULT................................................................................... 80
Section 8.01 Events of Default.............................................................................. 80
Section 8.02 Waiver of Defaults............................................................................. 81
Section 8.03 Trustee to Act, Appointment of Successor....................................................... 81
Section 8.04 Notification to Certificateholders............................................................. 82
Section 8.05 Effect of Transfer............................................................................. 82
Section 8.06 Transfer of the Account........................................................................ 82
Section 8.07 Servicer Termination Events.................................................................... 82
ARTICLE IX CONCERNING THE TRUSTEE.............................................................................. 83
Section 9.01 Duties of Trustee.............................................................................. 83
Section 9.02 Certain Matters Affecting the Trustee.......................................................... 84
Section 9.03 Trustee not Liable for Certificates or Contracts............................................... 86
Section 9.04 Trustee May Own Certificates................................................................... 86
Section 9.05 Servicer to Pay Fees and Expenses of Trustee, Paying Agent and Certificate Administrator....... 86
Section 9.06 Eligibility Requirements for Trustee........................................................... 87
Section 9.07 Resignation and Removal of the Trustee......................................................... 87
-iii-
TABLE OF CONTENTS
(continued)
Page
Section 9.08 Successor Trustee.............................................................................. 88
Section 9.09 Merger or Consolidation of Trustee............................................................. 89
Section 9.10 Appointment of Co-Trustee or Separate Trustee.................................................. 89
Section 9.11 Appointment of Office or Agency................................................................ 90
Section 9.12 Certificate Administrator...................................................................... 90
Section 9.13 Appointment of Paying Agent.................................................................... 91
Section 9.14 Determination of LIBOR; Auction Procedures..................................................... 91
ARTICLE X TERMINATION........................................................................................... 91
Section 10.01 Termination.................................................................................... 91
ARTICLE XI MISCELLANEOUS PROVISIONS.............................................................................. 96
Section 11.01 Amendment...................................................................................... 96
Section 11.02 Recordation of Agreement; Counterparts......................................................... 98
Section 11.03 Governing Law.................................................................................. 98
Section 11.04 Calculations................................................................................... 98
Section 11.05 Notices........................................................................................ 98
Section 11.06 Severability of Provisions..................................................................... 99
Section 11.07 Assignment..................................................................................... 100
Section 11.08 Limitations on Rights of Certificateholders.................................................... 100
Section 11.09 Inspection and Audit Rights.................................................................... 100
Section 11.10 Certificates Nonassessable and Fully Paid...................................................... 101
Section 11.11 Third Party Beneficiary........................................................................ 101
Section 11.12 Independence of the Servicer................................................................... 101
Section 11.13 No Joint Venture............................................................................... 101
Section 11.14 Consent to Jurisdiction........................................................................ 101
Section 11.15 Trial by Jury Waived........................................................................... 102
-iv-
This POOLING AND SERVICING AGREEMENT (SERIES 2000-6), dated as of
December 1, 2000 (the "Agreement"), is executed by and between GreenPoint
Credit, LLC, as the contract seller (in such capacity, the "Contract Seller")
and the servicer (in such capacity together with its permitted successors, the
"Servicer"), and Bank One, National Association, as trustee (together with its
permitted successors in trust, the "Trustee").
The Contract Seller and Servicer have duly authorized the execution
and delivery of this Agreement to provide for the issuance of GreenPoint
Manufactured Housing Contract Trust, Pass-Through Certificates, Series 2000-6
(the "Certificates"). The Certificates issued hereunder shall be limited to the
amount herein described. All covenants and agreements made by the Contract
Seller herein are for the benefit and security of the Certificateholders. The
Contract Seller is entering into this Agreement, and the Trustee is accepting
the trusts created hereby for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
In consideration of the premises and the mutual agreements hereinafter
set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Terms.
-----
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Advanced Trigger Event: As defined in the Insurance Agreement.
----------------------
Adverse REMIC Event: As defined in Section 4.17(f) hereof.
-------------------
Advisor: As defined in Section 10.01(b)(3) hereof.
-------
Affiliate: As to any specified Person, 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: This Pooling and Servicing Agreement and any and all amendments
---------
or supplements hereto.
Annual Servicing Rate: 1.00% per annum (or, in the case of a successor
---------------------
Servicer engaged at any time after GreenPoint is no longer the Servicer, the
percentage agreed upon pursuant to Section 7.07).
Assignment: An individual assignment of a Mortgage, notice or transfer or
----------
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale or transfer of the related Land Home Contract.
Auction Agent: The meaning assigned in the Auction Procedures.
-------------
Auction Agent Agreement: The meaning assigned in the Auction Procedures.
-----------------------
Auction Agent Fee: The meaning assigned in the Auction Agent Agreement.
-----------------
Auction Procedures: The procedures set forth in Schedule I hereof by which
------------------
the Auction Rate is determined.
Auction Rate: The rate of interest per annum that results from
------------
implementation of the Auction Procedures and which is determined as described in
Section 2.1.1(c)(ii) of the Auction Procedures.
Auction Termination Date: As defined in Section 10.01(b) hereof.
------------------------
Available Distribution Amount: With respect to any Distribution Date, the
-----------------------------
sum of (a) the Swap Amount for such Distribution Date and (b) the amount
received by the Trust Fund pursuant to the Hedge Agreement for such Distribution
Date (including any Hedge Termination Payment paid to the Trust Fund by the
Hedge Counterparty), less the amount paid to the Hedge Counterparty pursuant to
the Hedge Agreement for such Distribution Date (including any Hedge Termination
Payment paid to the Hedge Counterparty).
Available Funds: As to any Distribution Date, the sum of (a) the amount on
---------------
deposit or otherwise credited to the Certificate Account as of the end of the
Collection Period ending immediately prior to such Distribution Date, less the
portion of such amount (i) permitted to be withdrawn by the Servicer pursuant to
Section 5.03 or (ii) constituting Excess Contract Payments, (b) the Monthly
Advance for such Distribution Date actually made in respect of such Distribution
Date, and (c) the amount constituting the Class A-3 Holdover Amount as of the
immediately preceding Distribution Date.
Bank Agent: Bank One, National Association and any successor thereto.
----------
Book-Entry Certificate: Any Certificate registered in the name of the
----------------------
Depository or its nominee.
Broker Dealer Agreement: The meaning assigned in the Auction Procedures.
-----------------------
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
------------
on which the New York Stock Exchange or banking institutions in the City of New
York, New York, or the State of California or the city in which the Corporate
Trust Office of the Trustee is located are authorized or obligated by law or
executive order to be closed.
-2-
Certificate: Any of the GreenPoint Manufactured Housing Contract Trust
-----------
Pass-Through Certificates, Series 2000-6.
Certificate Account: The separate Eligible Account created and initially
-------------------
maintained by the Trustee pursuant to Section 4.05 in the name of the Trustee
for the benefit of the Holders of the Certificates. Funds in the Certificate
Account shall be held in trust for the aforementioned Certificateholders for the
uses and purposes set forth in this Agreement.
Certificate Administrator: The Person appointed by the Trustee from time
-------------------------
to time pursuant to Section 9.12.
Certificate Balance: When used with respect to a single Class, the Class
-------------------
A-1 Certificate Balance, the Class A-2 Certificate Balance or the Class A-3
Certificate Balance, as applicable; and when used with respect to more than one
Class of Certificates, the sum of the Class A-1 Certificate Balance, Class A-2
Certificate Balance and Class A-3 Certificate Balance, as applicable.
Certificate Insurance Policy: The financial guaranty policy number 51024-
----------------------------
N, dated as of the Closing Date, including any endorsement thereto, issued by
the Insurer pursuant to the Insurance Agreement.
Certificate Owner: With respect to a Global Certificate, the person that
-----------------
is the beneficial owner of an interest in such Global Certificate.
Certificate Register: The register maintained pursuant to Section 6.02
--------------------
hereof.
Certificate Spread Amount: With respect to any Distribution Date and the
-------------------------
Swap, the product of (i) the Certificate Spread Rate and (ii) the aggregate
Certificate Balances of the Certificates on the immediately preceding
Distribution Date.
Certificate Spread Rate: With respect to any Distribution Date and the
-----------------------
Swap, the weighted average of the excess of (i) the Pass-Through Rate for each
Class of Certificates for such Distribution Date over (ii) LIBOR for such
Distribution Date.
Certificateholder or Holder: The person in whose name a Certificate is
----------------- ------
registered in the Certificate Register (initially, Cede & Co., as nominee for
the Depository, in the case of any Global Certificates), except that solely for
the purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Contract Seller, the Servicer or any Affiliate of
the Contract Seller or the Servicer shall be deemed not to be Outstanding and
the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect such consent has been obtained; provided, however, that if any such
-------- -------
Person (including the Contract Seller) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for purposes of any provision hereof that requires the consent of
the Holders of Certificates of a particular Class as a condition to the taking
of any action hereunder. The Trustee is entitled to rely conclusively on a
certification of the Contract Seller, the Servicer or any Affiliate of the
Contract Seller or the Servicer in determining which Certificates are registered
in the name of an Affiliate of the Contract Seller or the Servicer.
-3-
Class: Any of the Class A-1, Class A-2, Class A-3 or Class R
-----
Certificates, as the case may be.
Class A Certificate Balance: On any date, the sum of the Class A-1
---------------------------
Certificate Balance, the Class A-2 Certificate Balance and the Class A-3
Certificate Balance.
Class A Certificates: The Class A-1 Certificates, the Class A-2
--------------------
Certificates and the Class A-3 Certificates.
Class A-1 Certificate: Any one of the Certificates, executed and
---------------------
authenticated as provided herein, substantially in the form set forth in Exhibit
-------
B-1 and Exhibit C hereto.
--- ---------
Class A-1 Certificate Balance: At any time, the Initial Class A-1
-----------------------------
Certificate Balance minus the sum of all principal distributions previously made
to the Class A-1 Certificateholders.
Class A-1 Distribution Amount: As to any Distribution Date, the total
-----------------------------
amount distributed to the Class A-1 Certificateholders pursuant to Section 5.02.
Class A-1 Interest Distribution Amount: As to any Distribution Date, an
--------------------------------------
amount equal to the sum of (a) interest accrued during the related Interest
Accrual Period at the Class A-1 Pass-Through Rate on the Class A-1 Certificate
Balance as of such Distribution Date (before giving effect to the principal
distributions on such Distribution Date) and (b) any Class A-1 Unpaid Interest
Shortfall.
Class A-1 Interest Shortfall: As to any Distribution Date, any amount by
----------------------------
which the amount distributed to Holders of Class A-1 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-1 Interest Distribution Amount."
Class A-1 Pass-Through Rate: A per annum rate equal to the sum of (a) LIBOR
---------------------------
and (b) 0.11%.
Class A-1 Unpaid Interest Shortfall: As to any Distribution Date, the
-----------------------------------
amount, if any, by which the aggregate of the Class A-1 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-1 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class A-1 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class A-2 Certificate: Any one of the Certificates, executed and
---------------------
authenticated as provided herein, substantially in the form set forth in Exhibit
-------
B-2 and Exhibit C hereto.
--- ---------
Class A-2 Certificate Balance: At any time, the Initial Class A-2
-----------------------------
Certificate Balance minus the sum of all principal distributions previously made
to the Class A-2 Certificateholders.
Class A-2 Distribution Amount: As to any Distribution Date, the total
-----------------------------
amount distributed to the Class A-2 Certificateholders pursuant to Section 5.02.
-4-
Class A-2 Interest Distribution Amount: As to any Distribution Date, an
--------------------------------------
amount equal to the sum of (a) interest accrued during the related Interest
Accrual Period at the Class A-2 Pass-Through Rate on the Class A-2 Certificate
Balance as of such Distribution Date (before giving effect to the principal
distributions on such Distribution Date) and (b) any Class A-2 Unpaid Interest
Shortfall.
Class A-2 Interest Shortfall: As to any Distribution Date, any amount by
----------------------------
which the amount distributed to Holders of Class A-2 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-2 Interest Distribution Amount."
Class A-2 Pass-Through Rate: A per annum rate equal to the sum of (a) LIBOR
---------------------------
and (b) 0.29%.
Class A-2 Unpaid Interest Shortfall: As to any Distribution Date, the
-----------------------------------
amount, if any, by which the aggregate of the Class A-2 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-2 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class A-2 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class A-3 Certificate: Any one of the Class A-3 Certificates, executed and
---------------------
authenticated as provided herein, substantially in the form set forth in Exhibit
-------
B-3 and Exhibit C hereto.
--- ---------
Class A-3 Certificate Balance: At any time, the Initial Class A-3
-----------------------------
Certificate Balance minus the sum of all principal distributions previously made
to the Class A-3 Certificateholders.
Class A-3 Distribution Amount: As to any Distribution Date, the total
-----------------------------
amount distributed to the Class A-3 Certificateholders pursuant to Section 5.02.
Class A-3 Holdover Amount: On (a) the first Distribution Date on which the
-------------------------
Class A-3 Certificateholders receive distributions of principal pursuant to
Section 5.02(a)(ii) hereof, zero, (b) on each subsequent Distribution Date on
which the Class A-3 Certificateholders receive distributions of principal
pursuant to Section 5.02(a)(ii) hereof but prior to the Class A-3 Pro Rata Date,
an amount equal to the lesser of (i) $24,999.99 and (ii) the portion of the
Formula Principal Distribution Amount required to be applied as a principal
payment on the Class A-3 Certificates that exceeds $25,000 or an integral
multiple of $25,000 and (c) on each Distribution Date on and after the Class A-3
Pro Rata Date, zero.
Class A-3 Interest Distribution Amount: As to any Distribution Date, an
--------------------------------------
amount equal to the sum of (a) interest accrued during the related Interest
Accrual Period at the Class A-3 Pass-Through Rate on the Class A-3 Certificate
Balance as of such Distribution Date (before giving effect to the principal
distributions on such Distribution Date) and (b) any Class A-3 Unpaid Interest
Shortfall.
Class A-3 Interest Shortfall: As to any Distribution Date, any amount by
----------------------------
which the amount distributed to Holders of Class A-3 Certificates on such
Distribution Date is less than the amount computed pursuant to clause (a) of the
definition of "Class A-3 Interest Distribution Amount."
-5-
Class A-3 Pass-Through Rate: With respect to the First Distribution Date,
---------------------------
6.87% per annum. With respect to all subsequent Distribution Dates, the Auction
Rate established for such Distribution Date as determined pursuant to the
Auction Procedures.
Class A-3 Pro Rata Date: The date, if any, upon which the Class A-3
-----------------------
Certificates are no longer held as a Book-Entry Certificate or the Certificate
Balance of each outstanding Class A-3 Certificate is less than $25,000.
Class A-3 Unpaid Interest Shortfall: As to any Distribution Date, the
-----------------------------------
amount, if any, by which the aggregate of the Class A-3 Interest Shortfalls for
prior Distribution Dates exceeds all prior distributions made pursuant to
Section 5.02 in respect of prior Class A-3 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) at the
Class A-3 Pass-Through Rate on such amount with respect to such prior
Distribution Dates.
Class R Certificate: Any one of the Certificates, executed and
-------------------
authenticated as provided herein, substantially in the form set forth in Exhibit
-------
D hereto.
-
Closing Date: December 15, 2000.
------------
Code: The Internal Revenue Code of 1986, including any successor or
----
amendatory provisions.
Collected Funds: With respect to any Distribution Date and the Swap, all
---------------
amounts collected by the Servicer in respect of the Contracts for the related
Collection Period and deposited into the Certificate Account less the sum of (i)
any Class A-3 Holdover Amounts for the related Collection Period, (ii) any
Excess Contract Payments for the related Collection Period and (iii) all
permitted withdrawals for such Distribution Date pursuant to Section 5.03(a)
hereof.
Collected Scheduled Payments: As to any Distribution Date, (a) the amount
----------------------------
on deposit in the Certificate Account as of the end of the related Collection
Period, less (b) the sum of (i) the aggregate of all Partial Prepayments
collected during such Collection Period, (ii) the aggregate of all payments
collected during such Collection Period on Contracts that were prepaid in full
during such Collection Period (less the aggregate of the Scheduled Payments due
on such Contracts that were delinquent as of the beginning of such Collection
Period and recovered out of such collections), (iii) the aggregate of the Net
Liquidation Proceeds collected in respect of all Contracts that became
Liquidated Contracts during such Collection Period (less the aggregate of
Scheduled Payments due on such Contracts that were delinquent at the beginning
of such Collection Period and recovered out of such collections and less any
Repossession Profits collected during such Collection Period), (iv) the
aggregate of the Repurchase Prices of all Contracts that were repurchased by the
Contract Seller pursuant to Section 3.05 (less the aggregate of Scheduled
Payments due on such Contracts that were delinquent at the beginning of such
Collection Period and recovered out of such collections), (v) the amounts
permitted to be withdrawn by the Servicer from the Certificate Account pursuant
to clauses (i), (ii), (iii), (iv), (v) and (vii) of Section 5.03(a), and (vi)
amounts representing Excess Contract Payments.
Collection Period: With respect to any Distribution Date, the calendar
-----------------
month preceding the month of that Distribution Date.
-6-
Computer Tape: The computer tape generated by the Contract Seller which
-------------
provides information relating to the Contracts sold by the Contract Seller, and
includes the master file and the history file.
Contract: Any one of the manufactured housing installment sale contracts
--------
or installment loan agreements, including any Land Home Contracts, described in
the Contract Schedule and constituting part of the corpus of the Trust Fund,
which Contracts are sold and assigned by the Contract Seller to the Trustee and
which are the subject of this Agreement. The Contracts include all related
security interests and any and all rights to receive payments which are due
pursuant thereto from and after the Cut-Off Date, but exclude any rights to
receive payments which were due pursuant thereto prior to the Cut-Off Date.
Contract File: As to each Contract other than a Land Home Contract, (a)
-------------
the original copy of the Contract, (b) the original title document issued to the
Contract Seller or BankAmerica Housing Services as secured lender or agent
therefor for the related Manufactured Home, unless the laws of the jurisdiction
in which the related Manufactured Home is located do not provide for the
issuance of any title documents for manufactured housing to secured lenders, (c)
evidence of one or more of the following types of perfection of the security
interest in favor of the Contract Seller or BankAmerica Housing Services as
secured lender or agent therefor in the related Manufactured Home granted by
such Contract, as appropriate: (1) notation of such security interest on the
title document, (2) a financing statement meeting the requirements of the UCC,
with evidence of filing in the appropriate offices indicated thereon, or (3)
such other evidence of perfection of a security interest in a manufactured
housing unit as is customary in such jurisdiction, (d) the assignment of the
Contract from the manufactured housing dealer to the Contract Seller or
BankAmerica Housing Services, if any, including any intervening assignments, and
(e) any extension, modification or waiver agreement(s).
Contract Pool: The pool of Contracts held in the Trust Fund.
-------------
Contract Rate: With respect to each Contract, the per annum rate of
-------------
interest borne by such Contract, as set forth or described in such Contract.
Contract Schedule: The list identifying each Contract, as amended from time
-----------------
to time, constituting part of the corpus of the Trust Fund, which list is
attached hereto as Exhibit A and which (a) identifies each Contract by contract
---------
number, and (b) sets forth as to each Contract (i) the Scheduled Principal
Balance as of the Cut-Off Date, (ii) the amount of each monthly payment due from
the Obligor, (iii) the Contract Rate and (iv) the maturity date.
Contract Seller: GreenPoint.
---------------
Corporate Trust Office: The principal corporate trust office of the
----------------------
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date of execution of this Agreement is located
at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Services Division, except that for purposes of Section 9.11,
such term shall mean the office or agency of the Trustee in the Borough of
Manhattan, the City of New York, which office at the date hereof is located at
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
-7-
Cut-Off Date: The close of business on November 30, 2000.
------------
Cut-Off Date Pool Principal Balance: The aggregate of the Scheduled
-----------------------------------
Principal Balances of the Contracts as of the Cut-Off Date.
Deficiency: With respect to any Contract that is a Liquidated Contract,
----------
the amount by which (i) the outstanding principal balance of such Contract, plus
accrued and unpaid interest thereon at the related Contract Rate to the Due Date
for such Contract in the Collection Period in which such Contract became a
Liquidated Contract exceeds (ii) the Net Liquidation Proceeds for such Contract.
Deficiency Amount: With respect to any Contract, the amount, if any, that
-----------------
the Servicer collects directly from the Obligor with respect to any Deficiency.
Deficiency Event: On any Distribution Date as to which, after the
----------------
application of funds pursuant to Section 5.02(a), the sum of the Pool Scheduled
Principal Balance and the amount of the Class A-3 Holdover Amount on deposit in
the Certificate Account is less than the Class A Certificate Balance.
Deficiency Percentage: 35%.
---------------------
Definitive Certificates: As defined in Section 6.08.
-----------------------
Denomination: With respect to each Regular Certificate, the amount set
------------
forth on the face thereof as the "Initial Principal Balance of this
Certificate." With respect to each Class R Certificate, the Percentage Interest
appearing on the face thereof.
Depository: The initial Depository shall be the Depository Trust Company,
----------
the nominee of which is Cede & Co., or any other organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository shall initially be the registered Holder of
the Global Certificates. The Depository shall at all times be a "clearing
corporation" as defined in the Uniform Commercial Code of the State of New York.
Depository Agreement: The agreement among the Contract Seller, the Trustee
--------------------
and the initial Depository, dated as of the Closing Date, substantially in the
form of Exhibit H.
---------
Depository Participant: 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: With respect to any Distribution Date, the fourth
------------------
Business Day prior to such Distribution Date.
Disqualified Organization: Any organization defined as a "disqualified
-------------------------
organization" under Section 860E(e)(5) of the Code and any of the following:
(i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors
-8-
is not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) any "electing
large partnership" within the meaning of Section 775 of the Code and (vi) any
other Person so designated by the Trustee based upon an Opinion of Counsel that
the holding of an Ownership Interest in a Class R Certificate by such Person may
cause the Trust Fund, or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
Distribution Date: The 22nd day of each calendar month after the initial
-----------------
issuance of the Certificates, or if such 22nd day is not a Business Day, the
next succeeding Business Day, commencing in January 2001.
Due Date: With respect to each Contract, the day of the month on which the
--------
related Scheduled Payment is due, exclusive of any days of grace.
Eligible Account: An account that is one of the following (i) an account
----------------
maintained with a FDIC-insured depository institution which is subject to
examination by federal or state authorities and the commercial paper of which
has a rating of P-1 from Moody's (if rated by Moody's) and A-1 from S&P or the
long-term deposits or long-term unsecured senior debt obligations of which are
in one of the two highest rating categories of Moody's and S&P, or maintained
with a depository institution that is otherwise acceptable to each Rating Agency
(as evidenced by a letter from each Rating Agency to such effect), (ii) a trust
account maintained with the Trustee or, if the Certificate Administrator is not
the Trustee, with the Certificate Administrator, in which the funds are either
held uninvested or invested solely in Eligible Investments, or (iii) an account
that is otherwise acceptable to the Rating Agencies, as evidenced by a letter
from each Rating Agency, without a reduction or withdrawal of the rating of the
Certificates.
Eligible Investments: One or more of the following in the order of
--------------------
priority specified herein:
(a) any common trust fund, collective investment trust or money
market fund rated Aaa by Moody's and AAAg or AAAm by S&P; and
(b) other obligations or securities that are acceptable to each
Rating Agency as an Eligible Investment hereunder and will not result in a
reduction in or withdrawal of the then current rating or ratings of the
Certificates, as evidenced by a letter to such effect from each Rating Agency;
provided, however, that no investments in "interest only" stripped obligations
shall qualify as an Eligible Investment pursuant to this definition.
-9-
Eligible Substitute Contract: As to any Replaced Contract for which such
----------------------------
Eligible Substitute Contract is being substituted pursuant to Section 3.05(b), a
Contract that (a) as of the date of its substitution, satisfies all of the
representations and warranties (which, except when expressly stated to be as of
origination, shall be deemed to be determined as of the date of its substitution
rather than as of the Cut-Off Date or the Closing Date) in Section 3.02 and does
not cause any of the representations and warranties in Section 3.03, after
giving effect to such substitution, to be incorrect, (b) after giving effect to
the Scheduled Payment due in the month of such substitution, has a Scheduled
Principal Balance that is not greater than the Scheduled Principal Balance of
such Replaced Contract, (c) has a Contract Rate that is at least equal to the
Contract Rate of such Replaced Contract, (d) has a remaining term to scheduled
maturity that is not greater than the remaining term to scheduled maturity of
the Replaced Contract, and (e) has not been delinquent for more than 31 days as
to any Scheduled Payment due within twelve months of the date of its
substitution. In addition, a Substitute Contract which is a Land Home Contract
may only be used to replace a Replaced Contract which was a Land Home Contract.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
-----
ERISA Restricted Certificate: Any Class A or Class R Certificate.
----------------------------
Event of Default: Any one of the Events of Default described in Section
----------------
8.01 hereof.
Excess Contract Payment: With respect to any Contract, any portion of a
-----------------------
payment of principal and interest on such Contract, that (a) is in excess of the
Scheduled Payment (or is an integral multiple thereof and has not been
identified by the Obligor as a Principal Prepayment), (b) is not a Principal
Prepayment and (c) is not part of the Liquidation Proceeds of such Contract or
the Repurchase Price of such Contract paid pursuant to Section 3.05.
Excess Spread: With respect to any Distribution Date and the Swap, the
-------------
portion of Collected Funds that are characterized as interest collections on the
Contracts with respect to the related Collection Period less the sum of (a) the
Certificate Spread Amount for such Distribution Date, (b) the gross amount
payable to the Hedge Counterparty under the Hedge Agreement with respect to such
Distribution Date and (c) all amounts owed to the Insurer pursuant to the
Insurance Agreement or this Agreement with respect to such Distribution Date.
Extension Fee: Any extension fee paid by the Obligor on a Contract.
-------------
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
----
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
-----
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer pursuant
-------------
to Section 4.10.
Final Order: As defined in the Certificate Insurance Policy.
-----------
First Distribution Date: January 22, 2001.
-----------------------
-10-
FNMA: The Federal National Mortgage Association, a federally chartered and
----
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
Formula Principal Distribution Amount: As to any Distribution Date, an
-------------------------------------
amount equal to the sum of (a) the Total Regular Principal Amount for such
Distribution Date, (b) any previously undistributed shortfalls in the
distribution of the Total Regular Principal Amount in respect of prior
Distribution Dates and (c) with respect to the Class A-3 Certificates, the Class
A-3 Holdover Amount as of the immediately preceding Distribution Date.
Fractional Interest: As to any Certificate, the product of (a) the
-------------------
Percentage Interest evidenced by such Certificate multiplied by (b) the amount
derived from dividing the Certificate Balance of the Class represented by such
Certificate by the aggregate Certificate Balances of all Classes.
Global Certificate: 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 and as described in Section 6.06). On the Closing Date, only
the Class A Certificates will be Global Certificates.
GreenPoint: GreenPoint Credit, LLC, a Delaware limited liability company,
----------
its successors or assigns.
GreenPoint Bank: GreenPoint Bank, a New York state-chartered savings bank,
---------------
and its successors and assigns.
Guaranteed Distributions: As defined in the Certificate Insurance Policy.
------------------------
Hazard Insurance Policy: With respect to each Contract, the policy of fire
-----------------------
and extended coverage insurance (and federal flood insurance, if applicable)
required to be maintained for the related Manufactured Home, as provided in
Section 4.09 (which may be a blanket insurance policy maintained by the Servicer
in accordance with the terms and conditions of Section 4.09).
Hedge Agreement: The ISDA Master Agreement, schedule and confirmation
---------------
thereto, dated as of the Closing Date, between the Trustee, on behalf of the
Trust Fund, and the Hedge Counterparty, or any replacement, substitute,
collateral or other arrangement in lieu thereof. The Hedge Agreement will not
be an asset of the REMIC.
Hedge Counterparty: Credit Suisse First Boston International, an unlimited
------------------
company incorporated under the laws of England and Wales and its successors and
assigns or any party to any replacement, substitute, collateral or other
arrangement in lieu thereof.
Hedge Termination Payment: The termination payment due to the Hedge
-------------------------
Counterparty pursuant to the Hedge Agreement upon the early termination of the
Hedge Agreement.
Independent Contractor: Either (i) any Person (other than the Servicer or
----------------------
the Trustee) that would be an "independent contractor" with respect to the Trust
Fund within the meaning of
-11-
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership test set forth in that Section shall be
considered to be met by any Person that owns, directly or indirectly, 35 percent
or more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee or the Trust Fund, delivered to the Trustee), so long as
the Trust Fund does not receive or derive any income from such person and
provided that the relationship between such Person and the Trust Fund is at
arm's length, all within the meaning of Treasury Regulation Section 1.856-
4(b)(5), or (ii) any other Person (including the Servicer and the Trustee) upon
receipt by the Trustee of an Opinion of Counsel, which shall be at no expense to
the Trustee or the Trust Fund, to the effect that the taking of any action in
respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a) of
the Code).
Initial Class A-1 Certificate Balance: As set forth in Section 6.01.
-------------------------------------
Initial Class A-2 Certificate Balance: As set forth in Section 6.01.
-------------------------------------
Initial Class A-3 Certificate Balance: As set forth in Section 6.01.
-------------------------------------
Insurance Agreement: The Insurance and Indemnity Agreement, dated as of
-------------------
the Closing Date, among GreenPoint, GreenPoint Bank, the Trustee and the
Insurer, as amended, modified and supplemented from time to time in accordance
with its terms.
Insurer: Financial Security Assurance Inc., a monoline insurance company
-------
incorporated under the laws of the State of New York, or its successors in
interest as issuer of the Certificate Insurance Policy.
Insurer Default: Any one of the following events shall have occurred and be
---------------
continuing:
(a) the Insurer fails to make a payment required under the
Certificate Insurance Policy;
(b) the Insurer (1) files any petition or commences any case or
proceeding under any provision or chapter of the United States Bankruptcy Code
or any other similar Federal or State law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization, (2) makes a general assignment
for the benefit of its creditors or (3) has an order for relief entered against
it under the United States Bankruptcy Code or any other similar Federal or State
law relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority enters a final and
nonappealable order, judgment or decree (1) appointing a custodian, trustee,
agent or receiver for the Insurer or for all or any material portion of its
property or (2) authorizing the taking of possession by a custodian, trustee,
agent or receiver of the Insurer (or the taking of possession of all or any
material portion of the property of the Insurer).
-12-
Interest Accrual Period: With respect to any Distribution Date for any
-----------------------
Class, other than the First Distribution Date, the one month period beginning on
the Distribution Date occurring during the preceding Collection Period and
ending on the day preceding the Distribution Date occurring during the current
Collection Period, and with respect to the First Distribution Date, the period
commencing on the Closing Date and ending on the day preceding the First
Distribution Date.
Land Home Contract: A Contract that is secured by a mortgage or deed of
------------------
trust on real estate on which the related Manufactured Home is situated (as well
as by such related Manufactured Home).
Land Home Contract File: As to each Land Home Contract, (a) the original
-----------------------
copy of the Land Home Contract, (b) the original related Mortgage with evidence
of recording thereon (or, if the original Mortgage has not yet been returned by
the applicable recording office, a copy thereof, certified by such recording
office, which will be replaced by the original Mortgage when it is so returned)
and any title document for the related Manufactured Home, (c) the assignment of
the Land Home Contract from the originator (if other than the Contract Seller)
to the Contract Seller, (d) if such Land Home Contract was originated by the
Contract Seller, an endorsement of such Land Home Contract by the Contract
Seller, and (e) any extension, modification or waiver agreement(s).
Late Payment Fees: Any late payment fees (including any not sufficient
-----------------
funds fees) paid by Obligors on Contracts after all sums received have been
allocated first to regular installments due or overdue and all such installments
are then paid in full.
Latest Due Date: The latest date on which any Contract matures.
---------------
LIBOR: As of any LIBOR Determination Date, the rate for deposits in United
-----
States dollars for a period equal to the relevant Interest Accrual Period
(commencing on the first day of such Interest Accrual Period) which appears in
the Telerate Screen Page 3750 as of 11:00 a.m. London time, on such date. If
such rate does not appear on Telerate Screen Page 3750, or such other service
for displaying LIBOR or comparable rates as may be selected by the Trustee after
consultation with the Servicer and the Hedge Counterparty, the rate for that day
will be determined on the basis of the rates at which deposits in United States
dollars are offered by the Reference Banks at approximately 11:00 a.m., London
time, on that day to prime banks in the London interbank market for a period
equal to the relevant Interest Accrual Period (commencing on the first day of
such Interest Accrual Period). The Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that day will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that day will be the arithmetic mean of the rates quoted
by major banks in New York City, selected by the Servicer, at approximately
11:00 a.m., New York City time, on that day for loans in United States dollars
to leading European banks for a period equal to the relevant Interest Accrual
Period (commencing on the first day of such Interest Accrual Period).
LIBOR Determination Date: With respect to any Interest Accrual Period, the
------------------------
second London business day preceding the commencement of such Interest Accrual
Period. For
-13-
purposes of determining LIBOR, a "London business day" is any day on which
dealings in deposits of United States dollars are transacted in the London
interbank market.
Liquidated Contract: Any defaulted Contract as to which the Servicer has
-------------------
determined that all amounts (other than amounts in respect of any Deficiency)
which it expects to recover from or on account of such Contract have been
recovered; provided that any defaulted Contract in respect of which the related
--------
Manufactured Home and, in the case of Land Home Contracts, Mortgaged Property,
has been realized upon and liquidated and the proceeds of such disposition have
been received shall be deemed to be a Liquidated Contract.
Liquidation Expenses: All reasonable out-of-pocket expenses (exclusive of
--------------------
overhead expenses) which are incurred by the Servicer in connection with the
liquidation of any defaulted Contract, on or prior to the date on which the
related Manufactured Home, and, in the case of Land Home Contracts, Mortgaged
Property, is liquidated, including legal fees and expenses, any unreimbursed
amount expended by the Servicer pursuant to Sections 4.06, 4.07, 4.09, 4.13 or
4.18 (to the extent such amount is reimbursable under the terms of Sections
4.06, 4.07, 4.09, 4.13 or 4.18, as the case may be) with respect to such
Contract, and any unreimbursed expenditures for property taxes or other taxes or
charges or for property restoration or preservation that are related to such
liquidation.
Liquidation Proceeds: Cash (including insurance proceeds other than those
--------------------
applied to the restoration of the related Manufactured Home or Mortgaged
Property or released to the related Obligor in accordance with the normal
servicing procedures of the Servicer, but excluding Deficiency Amounts) received
in connection with the liquidation of defaulted Contracts, whether through
repossession or otherwise.
Loan-To-Value Ratio: The fraction, expressed as a percentage, the
-------------------
numerator of which is the original principal balance of the related Contract and
the denominator of which is the Original Value of the related Manufactured Home.
Majority In Interest: As to any Class of Regular Certificates, the Holders
--------------------
of Certificates of such Class evidencing, in the aggregate, at least 51% of the
Percentage Interests evidenced by all Certificates of such Class.
Manufactured Home: A unit of manufactured housing which meets the
-----------------
requirements of Section 25(e)(10) of the Code, securing the indebtedness of the
Obligor under the related Contract.
Market Agent: The meaning assigned in the Auction Procedures.
------------
Minimum Termination Amount: As of any time after the Pool Scheduled
--------------------------
Principal Balance is less than 10% of the Cut-Off Date Pool Principal Balance,
whether in the case of a Termination Auction or a purchase of Contracts by the
Servicer or the Residual Interest Holder pursuant to Section 10.01(a)(ii)
hereof, an amount equal to the sum of (a) the aggregate Class A Certificate
Balance, (b) any shortfall in interest due to the Class A Certificateholders in
respect of prior Distribution Dates, (c) one month's interest on the Class A-1
Certificate Balance at the Class A-1 Pass-Through Rate, (d) one month's interest
on the Class A-2 Certificate Balance at
-14-
the Class A-2 Pass-Through Rate and (e) one month's interest on the Class A-3
Certificate Balance at the Class A-3 Pass-Through Rate.
Monthly Advance: As to any Distribution Date, the lesser of (1) (a) the
---------------
amount, if any, by which (i) the Scheduled Amount exceeds (ii) the Collected
Scheduled Payments, less (b) the amount of any Scheduled Payment on a Contract
due during the related Collection Period which the Servicer has determined would
be a Nonrecoverable Advance if an advance in respect of such Scheduled Payment
were made and (2) the amount by which the Available Funds (exclusive of the
Monthly Advance component thereof) for such Distribution Date is less than the
sum of (a) the Total Regular Principal Amount and (b) the sum of the Class A-1
Interest Distribution Amount, the Class A-2 Interest Distribution Amount and the
Class A-3 Interest Distribution Amount.
Monthly Advance Reimbursement Amount: Any amount received by the Servicer
------------------------------------
pursuant to Section 5.01(b) or (c) in reimbursement of a Monthly Advance made
out of its own funds.
Monthly Report: The monthly report described in Section 5.04.
--------------
Monthly Servicing Fee: As of any Distribution Date, an amount equal to
---------------------
one-twelfth of 1.00% per annum (or, in the case of a successor Servicer engaged
at any time after GreenPoint is no longer the Servicer, the percentage agreed
upon pursuant to Section 7.07) of the Pool Scheduled Principal Balance for such
Distribution Date.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
-------
Mortgage: The mortgage, deed of trust, security deed or similar evidence
--------
of lien, creating a first lien on an estate in fee simple in the real property
securing a Land Home Contract.
Mortgaged Property: The property subject to the lien of a Mortgage.
------------------
Net Liquidation Proceeds: As to any Liquidated Contract, Liquidation
------------------------
Proceeds net of the sum of (i) Liquidation Expenses, (ii) all accrued and unpaid
interest thereon through the date the related Contract becomes a Liquidated
Contract and (iii) any amount required to be paid to the Obligor or any other
Person with an interest in the Manufactured Home or Mortgaged Property that is
senior to the interest of the Trust Fund.
Non-United States Person: Any Person other than a United States Person.
------------------------
Nonrecoverable Advance: Any advance made or proposed to be made pursuant to
----------------------
Section 4.06, Section 4.09, Section 4.13, Section 4.18 or Section 5.01 which the
Servicer believes, in its good faith judgment, is not, or if made would not be,
ultimately recoverable from late payments, Liquidation Proceeds or otherwise.
In determining whether an advance is or will be nonrecoverable, the Servicer
need not take into account that it might receive any amounts in a deficiency
judgment. The determination by the Servicer that any advance is, or if made
would constitute, a Nonrecoverable Advance, shall be evidenced by an Officer's
Certificate of the Servicer delivered to the Trustee and stating the reasons for
such determination.
-15-
Notice of Claim: As defined in the Insurance Agreement.
---------------
Notice of Rating: A notice by the Servicer substantially in the form of
----------------
Exhibit J hereto.
---------
Obligor: Each Person who is indebted under a Contract or who has acquired
-------
a Manufactured Home subject to a Contract.
Officer's Certificate: A certificate (i) signed by the Chairman of the
---------------------
Board, the Vice Chairman of the Board, the President, a Vice President (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or one
of the assistant treasurers or assistant secretaries of the Contract Seller or
the Servicer (or any other officer customarily performing functions similar to
those performed by any of the above designated officers and also to whom, with
respect to a particular matter, such matter is referred because of such
officer's knowledge of and familiarity with a particular subject) or (ii) if
provided for in this Agreement, signed by a Servicing Officer and delivered to
the Contract Seller and the Trustee, as the case may be, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel, who may be the in-house
------------------
counsel for the Contract Seller or the Servicer, reasonably acceptable to the
Trustee, the Insurer and the Contract Seller, as the case may be.
Optional Termination Date: The date upon which the Pool Scheduled
-------------------------
Principal Balance is less than 10% of the Cut-Off Date Pool Principal Balance.
Original Value: With respect to any Manufactured Home that was new at the
--------------
time the related Contract was originated, the retail stated cash sale price of
such Manufactured Home, plus taxes and, to the extent financed under such
Contract, closing fees paid to third parties, insurance and prepaid finance
charges. With respect to any Manufactured Home that was used at the time the
related Contract was originated, the total delivered sales price of such
Manufactured Home, plus taxes and, to the extent financed under such Contract,
closing fees paid to third parties, insurance and prepaid finance charges.
Outstanding: With respect to any Contract as to the time of reference
-----------
thereto, a Contract that has not been fully prepaid, has not become a Liquidated
Contract, and has not been repurchased pursuant to Section 3.05 prior to such
time of reference.
Outstanding Amount Advanced: As to any Distribution Date, the aggregate of
---------------------------
all Monthly Advances made by the Servicer out of its own funds pursuant to
Section 5.01 less the aggregate of all Monthly Advance Reimbursement Amounts
actually received by the Servicer prior to such Distribution Date.
Ownership Interest: Any legal or beneficial, direct or indirect, ownership
------------------
or other interest.
Partial Prepayment: Any Principal Prepayment other than a Principal
------------------
Prepayment in Full.
-16-
Pass-Through Rate: The Class A-1 Pass-Through Rate, Class A-2 Pass-Through
-----------------
Rate or Class A-3 Pass-Through Rate, as applicable.
Paying Agent: Any paying agent appointed pursuant to Section 9.13.
------------
Percentage Interest: As to any Certificate (other than a Class R
-------------------
Certificate) of any Class, the percentage interest evidenced thereby in
distributions required to be made on the Certificates of such Class, such
percentage interest being equal to the percentage obtained by dividing the
original denomination of such Certificate by the aggregate of the original
denominations of all of the Certificates of such Class; and as to a Class R
Certificate, the percentage set forth on the face thereof.
Permitted Transferee: Any Person other than (i) a Disqualified
--------------------
Organization or (ii) a Non-United States Person.
Person: Any individual, corporation, partnership, limited liability
------
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Plan: An employee benefit or other plan subject to the prohibited
----
transaction provisions of ERISA or Section 4975 of the Code.
Plan Investor: Any Person (including an investment manager, a named
-------------
fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of
or purchasing Certificates with any "plan assets" of any Plan.
Policy Claim Amount: As to any Distribution Date and the immediately
-------------------
preceding Collection Period, the amount by which Guaranteed Distributions for
such Distribution Date exceeds the sum of (1) the Available Distribution Amount
for such Distribution Date and (2) all amounts on deposit in the Spread Account
as of such Distribution Date.
Pool Scheduled Principal Balance: As to any Distribution Date, the sum of
--------------------------------
the Scheduled Principal Balances of all Contracts at the end of the related
Collection Period.
Preference Claim: Any proceeding or the institution of any action (of
----------------
which a Responsible Officer of the Trustee has actual knowledge) seeking the
avoidance as a preferential transfer under applicable bankruptcy, insolvency,
receivership, rehabilitation or similar law of any payment made with respect to
the Certificates.
Principal Prepayment: (i) Subject to clause (ii) of this definition, with
--------------------
respect to any Contract, any payment or any portion thereof or other recovery on
such Contract (other than a Liquidated Contract or a Contract repurchased
pursuant to Section 3.05) that exceeds the amount necessary to bring such
Contract current as of any Due Date unless (A) the related Obligor has notified
or confirmed with the Servicer that such payment is to be applied as Scheduled
Payments for future Due Dates or (B) the amount of such excess payment is
approximately equal (subject to a variance of plus or minus 10%) to the amount
of the Scheduled Payment on the next Due Date; (ii) notwithstanding the
provisions of the preceding clause (i), if any payment or any portion thereof or
other recovery on a Contract (other than a Liquidated Contract or a Contract
-17-
repurchased pursuant to Section 3.05) is sufficient to pay the outstanding
principal balance of such Contract, all accrued and unpaid interest at the
Contract Rate to the payment date and, at the option of the Servicer, all other
outstanding amounts owing on such Contract, the portion of the payments or
recoveries on such Contract during such Collection Period that is equal to the
Scheduled Principal Balance of such Contract after giving effect to the
Scheduled Payment on such Contract due in such Collection Period; and (iii) any
cash deposit made with respect to a Contract pursuant to Section 3.05.
Principal Prepayment in Full: Any Principal Prepayment specified in clause
----------------------------
(ii) of the definition of the term "Principal Prepayment."
Private Certificate: Any Class R Certificate.
-------------------
Rating Agency: Either Moody's or S&P.
-------------
Record Date: With respect to any Distribution Date (other than the First
-----------
Distribution Date), the close of business on the day preceding such Distribution
Date and with respect to the First Distribution Date, the Closing Date.
Reference Banks: The leading banks selected by the Trustee with respect to
---------------
the Class A-1 Certificates and Class A-2 Certificates and the Auction Agent with
respect to the Class A-3 Certificates, which are engaged in transactions in
Eurodollar deposits in the London interbank market.
Regular Certificates: Any one of the Class A Certificates.
--------------------
REMIC: A "real estate mortgage investment conduit" within the meaning of
-----
Section 860D of the Code.
REMIC Administrator: The Holder of the Class R Certificate on the Closing
-------------------
Date, or any successor thereto meeting the requirements set forth in Section
4.17 (c).
REMIC Provisions: Provisions of the federal income tax law relating to
----------------
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed, temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Account: As defined in Section 4.17.
-----------
REO Property: As defined in Section 4.17.
------------
Replaced Contract: A Contract as to which the Contract Seller has a
-----------------
Repurchase Obligation and which, at the Contract Seller's option, is replaced in
the Trust Fund by an Eligible Substitute Contract pursuant to Section 3.05.
Repossession Profits: As to any Distribution Date, the excess, if any, of
--------------------
Net Liquidation Proceeds in respect of each Contract that became a Liquidated
Contract during the related
-18-
Collection Period over the sum of the remaining principal balance of such
Contract prior to any write down thereof plus accrued and unpaid interest at the
related Contract Rate on the remaining principal balance thereof from the Due
Date to which interest was last paid by the Obligor to the Due Date in the month
in which such Contract became a Liquidated Contract.
Repurchase Obligation: The obligation of the Contract Seller, set forth in
---------------------
Section 3.05, to repurchase the related Contracts as to which there exists an
uncured breach of a representation or warranty contained in Sections 3.02 or
3.03.
Repurchase Price: With respect to any Contract required to be repurchased
----------------
hereunder, an amount equal to the remaining principal amount outstanding on such
Contract as of the beginning of the month of repurchase plus accrued interest
from the Due Date with respect to which the Obligor last made a payment to the
Due Date in the Collection Period in which such Contract is repurchased.
Responsible Officer: When used with respect to the Trustee, the Paying
-------------------
Agent or the Certificate Administrator, the chairman or vice chairman of the
board of directors, the chairman or vice chairman of any executive committee of
the board of directors, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller, or any other officer
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
Returned Payment: Any amount paid by an Obligor on a Contract that, for
----------------
any reason is required to be returned to such Obligor.
S&P: Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
---
Companies, Inc., or any successor thereto.
Scheduled Amount: As to any Distribution Date, the amount equal to the
----------------
aggregate of the Scheduled Payments that were due during the related Collection
Period in respect of Contracts that were Outstanding immediately following such
Collection Period or whose last Scheduled Payment was due during such Collection
Period.
Scheduled Payment: As to any Distribution Date and each Contract, the
-----------------
amount equal to the scheduled payment that was due during the related Collection
Period in respect of each such Contract that was Outstanding immediately
following such Collection Period or whose last Scheduled Payment was due during
such Collection Period.
Scheduled Principal Balance: As to any Contract and any Distribution Date
---------------------------
or the Cut-Off Date as the case may be, the principal balance of such Contract
as of the Due Date in the related Collection Period (or, with respect to the
Cut-Off Date or the First Distribution Date, as of the Cut-Off Date) as
specified in the amortization schedule for such Contract at the time relating
thereto, after giving effect to all previous Partial Prepayments, all previous
scheduled principal payments (whether or not paid), to the scheduled payment of
principal due on such Due
-19-
Date (or, with respect to the Cut-Off Date, the previous Due Date) and to all
non-cash reductions to the related Contract during such Collection Period
whether by bankruptcy or other similar proceeding or other adjustment by the
Servicer in the normal course of business of its servicing activities.
Securities Act: The Securities Act of 1933, as amended.
--------------
Servicer: GreenPoint, or its successors in interest or any successor
--------
Servicer under this Agreement as provided by Section 7.06 or 7.07.
Servicer Deficiency Amount: With respect to any Distribution Date, the
--------------------------
product of the Deficiency Percentage and the aggregate of the Deficiency Amounts
received during the immediately preceding Collection Period.
Servicer Termination Events: As defined in Section 8.07.
---------------------------
Servicing File: All documents, records, and other items maintained by the
--------------
Servicer with respect to a Contract and not included in the corresponding
Contract File or the Land Home Contract File, as applicable, including the
credit application, credit reports and verifications, appraisals, tax and
insurance records, payment records, insurance claim records, correspondence, and
all historical computerized data files.
Servicing Officer: Any officer of the Servicer involved in, or responsible
-----------------
for, the administration and servicing of the Contracts whose name appears on a
list of servicing officers furnished to the Trustee by the Servicer, as such
list may from time to time be amended.
Settlement Amount: As defined in the Swap.
-----------------
Spread Account: The account established and maintained pursuant to the
--------------
Insurance Agreement, which will not be an asset of the REMIC.
Spread Account Deposit Amount: As defined in the Insurance Agreement.
-----------------------------
Spread Account Draw Amount: With respect to each Distribution Date, the
--------------------------
lesser of (a) all amounts on deposit in the Spread Account immediately prior to
such Distribution Date and (b) the amount, if any, by which the aggregate amount
distributable pursuant to paragraphs (a)(i), (ii) and (iii) of Section 5.02
exceeds the sum of (i) the Available Distribution Amount for such Distribution
Date and (ii) the Class A-3 Holdover Amount for such Distribution Date.
Startup Day: As defined in Section 4.17(b) hereof.
-----------
Swap: The ISDA Master Agreement, schedule and confirmation thereto, dated
----
as of the Closing Date, between the Trustee, on behalf of the Trust Fund, and
the Swap Counterparty.
Swap Amount: With respect to any Distribution Date, the net amount paid to
-----------
the Trust Fund by the Swap Counterparty pursuant to the Swap.
Swap Counterparty: GreenPoint Bank.
-----------------
-20-
Swap Default: The failure by the Swap Counterparty to make a required
------------
payment under the Swap in accordance with its terms.
Swap Termination Event: A Termination Event as defined in the Swap.
----------------------
Tax: As defined in Section 4.17(g) hereof.
---
Tax Matters Person: The person designated as "tax matters person" in the
------------------
manner provided under Treasury Regulation Section 1.860F-4(d) and Section 6231
of the Code. Initially, this person shall be the REMIC Administrator.
Telerate Screen Page 3750: The display page so designated on the Bridge
-------------------------
Telerate Capital Markets Report, or such other page as may replace page 3750 on
such service for the purpose of displaying London interbank offered rates of
major banks. If the rate does not appear on that page, or some other page as
may replace that page on such service, or if the service is no longer offered,
some other service for displaying LIBOR or comparable rates as may be selected
by the Trustee after consultation with the Servicer and the Hedge Counterparty.
Termination Auction: As defined in Section 10.01(b) hereof.
-------------------
Termination Auction Procedures: As defined in Section 10.01(b) hereof.
------------------------------
Total Regular Principal Amount: As to any Distribution Date, an amount
------------------------------
equal to the sum (without duplication) of (a) all scheduled payments of
principal due on each outstanding Contract during the immediately preceding
Collection Period, (b) all Partial Prepayments on the Contracts received during
the immediately preceding Collection Period, (c) the Scheduled Principal Balance
of each Contract for which a Principal Prepayment in Full was received during
the immediately preceding Collection Period, (d) the Scheduled Principal Balance
of each Contract that became a Liquidated Contract during the immediately
preceding Collection Period, (e) the Scheduled Principal Balance of each
Contract that was repurchased during the immediately preceding Collection Period
pursuant to Section 3.05, and (f) all non-cash reductions to the Scheduled
Principal Balance of each Contract during the immediately preceding Collection
Period whether by bankruptcy or other similar proceeding or other adjustment by
the Servicer in the normal course of business of its servicing activities.
Total Spread: With respect to any Distribution Date and the Swap, an
------------
amount equal to (a) the sum of (i) Excess Spread with respect to such
Distribution Date, (ii) all amounts owed to the Insurer pursuant to the
Insurance Agreement or this Agreement with respect to such Collection Period and
(iii) all Returned Payments with respect to such Collection Period minus (b) the
amount of losses on Liquidated Contracts for such Distribution Date; provided,
--------
however, that to the extent the amount calculated pursuant to clause (b) exceeds
-------
the amount of Excess Spread for the related Distribution Date, such excess
amount shall be carried forward to subsequent Collection Periods and applied in
accordance herewith until such amount equals zero.
Transfer: Any direct or indirect transfer or sale of any Ownership
--------
Interest in a Class R Certificate.
-21-
Transferee: Any Person who is acquiring by Transfer any Ownership Interest
----------
in a Class R Certificate.
Trustee: Bank One, National Association, or its successors or assigns or
-------
any successor under this Agreement.
Trust Fund: The corpus of the trust created by this Agreement, to the
----------
extent described herein, consisting of the Contracts (including the security
interest created thereby), including all rights to receive payments on the
Contracts due on or after the Cut-Off Date, such assets as shall from time to
time be identified as deposited in the Certificate Account, each Manufactured
Home and Mortgaged Property which secured a Contract (which has not been
repurchased pursuant to Section 3.05) and which has been acquired in realizing
upon such Contract, the Repurchase Obligation, the Certificate Insurance Policy,
the Spread Account, the Swap, the Hedge Agreement and the proceeds of the Hazard
Insurance Policies.
UCC: The Uniform Commercial Code, as in effect in the relevant
---
jurisdiction.
United States Person: A citizen or resident of the United States, a
--------------------
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any state thereof or the District of Columbia (other
than a partnership not treated as a United States person under any applicable
Treasury Regulations), or an estate or trust whose income is subject to United
States federal income tax regardless of the source of income.
Voting Rights: The portion of the voting rights of all of the Certificates
-------------
that is allocated to any Certificate. As of any date of determination, 99% of
the Voting Rights shall be allocated among Holders of the Regular Certificates
in proportion to the Certificate Balances of their respective Certificates on
such date and 1% of the Voting Rights shall be allocated among Holders of the
Class R Certificates, in each case allocated among the Certificates of each such
Class in accordance with their respective Percentage Interests.
Section 1.02 Construction.
------------
Unless the context of this Agreement otherwise clearly requires, references
to the plural include the singular, the singular the plural and the part the
whole and "or" has the inclusive meaning sometimes represented by the phrase
"and/or." The words "include" or "including" shall be deemed followed by the
phrase "without limitation." The words "hereof," "herein," "hereunder" and
similar terms in this Agreement refer to the Agreement as a whole and not to any
particular provision of this Agreement. The Section and other headings
contained in this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation
thereof in any respect. Section, subsection, Schedule, Appendix and Exhibit
references are to this Agreement unless otherwise specified. The date as of
which this Agreement is dated has been assigned solely for purposes of
identification, and does not signify the date as of which assets are
transferred, securities are issued, or any other actions are taken hereunder,
and the parties specifically acknowledge and agree that the conveyance of the
Contracts pursuant to Section 2.01 and the delivery of the Certificates pursuant
to Section 2.07 have occurred on and are effective as of the Closing Date.
-22-
ARTICLE II
CONVEYANCE OF CONTRACTS, REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Contracts.
-----------------------
(a) GreenPoint, as Contract Seller, concurrently with the execution
and delivery hereof, does hereby transfer, sell, assign, set over and otherwise
convey to the Trustee without recourse (i) all of its right, title and interest
in and to the Contracts listed on the Contract Schedule, as amended from time to
time, (including the security interests created thereby), including all
principal of and interest due on or with respect to such Contracts on or after
the Cut-Off Date (other than payments of principal and interest due on such
Contracts before the Cut-Off Date), (ii) all of the rights under all Hazard
Insurance Policies relating to the Manufactured Homes securing such Contracts
for the benefit of the creditors under such Contracts, (iii) all documents
contained in the Contract Files and in the Land Home Contract Files with respect
to the related Contracts, and (iv) all proceeds of any of the foregoing.
The ownership of each Contract and the contents of the related Contract
File or Land Home Contract File, as applicable, and Servicing File are vested in
the Trustee. The Servicer hereby disclaims any and all right, title and other
ownership interest in and to the Contracts (including the security interests
created thereby). The contents of each Contract File and, except as provided in
Section 4.16(e) and/or 4.16(f), the contents of each Land Home Contract File, as
applicable, and Servicing File are and shall be held by the Servicer for the
benefit of the Trustee as the owner thereof (it being understood that the
Servicer's possession of the contents of each Contract File or Land Home
Contract File, as applicable, and Servicing File so retained is for the sole
purpose of servicing the related Contract, and such retention and possession by
the Servicer is in a custodial capacity only). Neither the Contract Seller nor
the Servicer shall take any action inconsistent with the Trustee's ownership of
the Contracts, and the Contract Seller and the Servicer shall promptly indicate
to all inquiring parties that the Contracts have been sold, transferred,
assigned, set over and conveyed to the Trustee and shall not claim any ownership
interest in the Contracts.
(b) Although the parties intend that the conveyance of the Contract
Seller's right, title and interest in and to the Contracts pursuant to this
Agreement shall constitute a purchase and sale and not a loan, if such
conveyances are 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. The parties also intend and agree that GreenPoint shall
be deemed to have granted to the Trustee, and GreenPoint does hereby grant to
the Trustee, to secure payment of the Certificates according to their terms and
the performance of all of the Contract Seller's obligations hereunder, a
perfected first-priority security interest in all of its right, title and
interest, whether now owned or hereafter acquired, in, to and under: (i) the
Contracts listed on the Contract Schedule, as amended from time to time
(including the security interests created thereby), including all principal of
and interest due on or with respect to such Contracts on or after the Cut-Off
Date (other than payments of principal and interest due on such Contracts before
the Cut-Off Date); (ii) all of the rights under all Hazard Insurance Policies
relating to the Manufactured Homes securing such Contracts for the benefit of
the creditors under such Contracts; (iii) all documents contained in the
Contract Files and in the Land Home Contract
-23-
Files with respect to the related Contracts; (iv) all accounts, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit, and
investment property, consisting of, arising from, or relating to any of the
foregoing; and (v) all proceeds of any of the foregoing. The parties intend and
agree that this Agreement shall constitute a security agreement under applicable
law. If the trust created by this Agreement terminates prior to the satisfaction
of the claims of any Person under any Certificates, the security interests
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
shall have all of the rights and remedies of a secured party under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Section 2.02 Filing and Assignment.
---------------------
(a) On or prior to the Closing Date, the Contract Seller shall cause
to be filed in the office of the Secretary of State of California a UCC-1
financing statement signed by GreenPoint describing the related Contracts as
collateral and naming GreenPoint as debtor and the Trustee as secured party.
From time to time, each of the Contract Seller and the Servicer shall take
and cause to be taken such actions and execute such documents as are necessary
to perfect and protect the Certificateholders' interests in the Contracts and
their proceeds and the Manufactured Homes and the Mortgaged Properties against
all other Persons, including the filing of financing statements, amendments
thereto and continuation statements, the execution of transfer instruments and
the making of notations on or taking possession of all records or documents of
title; provided, however, that GreenPoint, so long as it is the Servicer, shall
-------- -------
not be required to cause notations to be made on any document of title relating
to any Manufactured Home or to execute any transfer instrument relating to any
Manufactured Home (other than a notation or a transfer instrument necessary to
show the Contract Seller as the lienholder or legal title holder) or, except as
provided in Section 4.22, to file documents in real property records with
respect to a Manufactured Home or related Contract, absent notice from the
Trustee or actual knowledge that such Manufactured Home that does not secure a
Land Home Contract has become real property under applicable state law; and
further provided, that neither the Contract Seller nor the Servicer shall have
------- --------
any obligation pursuant to this sentence with respect to any failure to maintain
a first-priority perfected security interest which results from a breach of any
representation or warranty in Section 3.02(j) or (u) as to the Trustee's
security interest in a Manufactured Home, except to enforce the Contract
Seller's obligations in respect thereof in Section 3.05. The Trustee and the
Contract Seller agree to take whatever action is necessary to enable the
Servicer to fulfill its obligations as set forth in this Section 2.02(a).
(b) Each of the Contract Seller and the Servicer agrees to pay all
reasonable costs and disbursements in connection with its duties specified in
this Section 2.02.
Section 2.03 Acceptance by Trustee.
---------------------
(a) The Trustee hereby acknowledges conveyance of the Contracts to
the Trustee and declares that the Trustee, directly or through a custodian
(which shall be the Servicer pursuant to Section 4.16, except as provided under
Section 4.16(f)), holds and will hold such
-24-
Contract Files in trust for the use and benefit of all present and future
Certificateholders. The Trustee hereby certifies (without any independent
investigation) that it has no notice or knowledge of (i) any adverse claim, lien
or encumbrance with respect to any Contract, (ii) any Contract being overdue or
dishonored, (iii) any evidence on the face of any Contract of any security
interest therein adverse to the Trustee's interest, or (iv) any defense against
or claim against any Contract by the Obligor or by any other party. The Trustee
also hereby certifies that its books and records will reflect it as the legal
owner of the Contracts. Nothing in this Agreement shall be construed to
constitute acceptance by the Trustee of any liability or obligation of the
Contract Seller, whether on any Contract, to any Obligor, or otherwise.
(b) The Trustee hereby acknowledges delivery of the Certificate
Insurance Policy, the Swap and the Hedge Agreement to the Trustee and declares
that the Trustee holds and will hold the (i) Certificate Insurance Policy in
trust for the use and benefit of all present and future Class A
Certificateholders, (ii) rights to payments under the Swap in trust for the use
and benefit of all present and future Class A Certificateholders and the Insurer
and (iii) rights to payments under the Hedge Agreement in trust for the use and
benefit of all present and future Class A Certificateholders and the Insurer.
Section 2.04 Trustee Receipt of Documents.
----------------------------
On the Closing Date, the Trustee shall authenticate and deliver the
Certificates upon instructions from the Contract Seller pursuant to Section 2.07
and the receipt of the following documents:
(a) A letter from each Rating Agency confirming that the Certificates
(other than the Class R Certificates) have been assigned the rating of "Aaa" (in
the case of ▇▇▇▇▇'▇) and "AAA" (in the case of S&P);
(b) An Officer's Certificate from the Servicer to the effect that the
Contract Seller has deposited the dollar amount specified in such Officer's
Certificate into the Certificate Account and that such dollar amount is an
estimate of all amounts received on the Contracts from and including the Cut-Off
Date up to and including the Closing Date;
(c) An executed Auction Agent Agreement and Broker Dealer Agreement;
(d) The Hedge Agreement
(e) The Swap; and
(f) The Certificate Insurance Policy.
Notwithstanding anything in this Agreement to the contrary, the Servicer
shall deposit into the Certificate Account all amounts in respect of the
Contracts received by it on or after December 1, 2000 (other than amounts due on
a Due Date occurring prior to December 1, 2000) or otherwise required to be
deposited in the Certificate Account by other provisions of this Agreement
pursuant to Section 4.05.
-25-
Section 2.05 Representations and Warranties Regarding the Servicer.
-----------------------------------------------------
The Servicer makes the following representations and warranties to the
Trustee and the Certificateholders:
(a) Organization and Good Standing. The Servicer is a limited
------------------------------
liability company, duly organized, validly existing and in good standing under
the laws of the State of Delaware, and the Servicer has the 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 limited liability company
and is in good standing in each jurisdiction in which its type of organization
and 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 its business, properties, assets, or condition
(financial or other).
(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 the Agreement, and has taken all necessary
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 or in connection with the transaction of its
business, except such as have been obtained or where the failure to obtain any
such consent, license, approval or authorization, or to make any registration or
declaration does not materially adversely affect the Trust Fund or the interests
of the Certificateholders therein.
(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 applicable to the Servicer or the
certificate of formation or limited liability company agreement 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 is bound
except where such violation or breach does not materially adversely affect the
Trust Fund or the interests of the Certificateholders therein.
(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 or the Certificates which, if
adversely determined, would in the opinion of the Servicer have a material
adverse effect on the transactions contemplated by this Agreement.
Within 60 days of the earlier of discovery by the Servicer or receipt of
notice by the Servicer of the breach of any representation, warranty or covenant
of the Servicer set forth in this
-26-
Section 2.05 which materially and adversely affects the interests of the
Certificateholders in any Contract, the Servicer shall cure such breach in all
material respects.
Section 2.06 Covenants of the Contract Seller, Trustee and Servicer.
------------------------------------------------------
Upon discovery by any of the Contract Seller, the Servicer or the Trustee
of a breach of any of the representations, warranties and covenants set forth in
Article III hereof which materially and adversely affects the value of the
Contracts or the interests of the Certificateholders in the Contracts (or which
materially and adversely affects the value of or the interest of the
Certificateholders in the related Contract in the case of a representation,
warranty or covenant set forth in Article III hereof and relating to a
particular Contract), the party discovering such breach shall give prompt
written notice to the other parties. The cure of such breach or the repurchase
or substitution for any affected Contract shall be done in accordance with
Section 3.05.
Section 2.07 Authentication and Delivery of Certificates.
-------------------------------------------
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed,
authenticated and delivered to or upon the order of the Contract Seller, the
Certificates in authorized denominations evidencing the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates.
Section 2.08 Covenants of the Servicer.
-------------------------
The Servicer hereby covenants to the Contract Seller and the Trustee that
no written information, certificate of an officer, statement furnished in
writing or written report delivered to the Contract Seller, any Affiliate of the
Contract Seller or the Trustee and prepared by the Servicer pursuant to this
Agreement will contain any untrue statement of a material fact or omit to state
a material fact necessary to make the information, certificate, statement or
report not misleading.
Section 2.09 Covenants of the Contract Seller.
--------------------------------
During the term of this Agreement, the Contract Seller will not change its
name, identity or structure or relocate its chief executive office without first
giving written notice to the Trustee and the Insurer. If any change in the
Contract Seller's name, identity or structure or the relocation of its chief
executive office would make any financing or continuation statement or notice of
lien filed under this Agreement seriously misleading within the meaning of
applicable provisions of the UCC or any title statute, the Contract Seller, no
later than five days after the effective date of such change, shall file such
amendments as may be required to preserve and protect the Certificateholders'
interests in the Contracts and proceeds thereof and in the Manufactured Homes
and the Mortgaged Properties.
-27-
ARTICLE III
REPRESENTATIONS AND WARRANTIES BY THE CONTRACT SELLER
Section 3.01 Representations and Warranties of the Contract Seller.
-----------------------------------------------------
The Contract Seller makes the following representations and warranties to
the Trustee as of the Closing Date:
(a) Organization and Good Standing; Licensing. It is a limited
-----------------------------------------
liability company, duly organized, validly existing and in good standing under
the laws of the State of Delaware, and it has the power to own its assets and to
transact the business in which it is currently engaged. It is duly qualified to
do business as a foreign limited liability company and is in good standing in
each jurisdiction in which its type of organization and 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 its business, properties, assets, or condition (financial or
other). It was properly licensed in each jurisdiction at the time of purchase or
origination of each Contract originated or purchased on an individual basis by
it in such jurisdiction to the extent required by the laws of such jurisdiction
as applied to the purchase or origination and servicing of such Contract, except
where the failure to be so licensed does not materially adversely affect the
interests of the Trust Fund or the Certificateholders in and to such Contract.
(b) Authorization; Binding Obligations. It has the power and
----------------------------------
authority to make, execute, deliver and perform this Agreement and all of the
transactions contemplated under this Agreement, and has taken all necessary
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 Contract Seller 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. It 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, except such as have been obtained or where the
failure to obtain any such consent, license, approval or authorization, or to
make any registration or declaration does not materially adversely affect the
Trust Fund or the interests of the Certificateholders therein.
(d) No Violations. The execution, delivery and performance of this
-------------
Agreement by the Contract Seller will not violate any provision of any existing
law or regulation or any order or decree of any court applicable to the Contract
Seller or the certificate of formation or limited liability company agreement of
the Contract Seller, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which the Contract Seller is a party or by which
the Contract Seller is bound except where such violation or breach does not
materially adversely affect the Trust Fund or the interests of the
Certificateholders therein.
-28-
(e) Litigation. No litigation or administrative proceeding of or
----------
before any court, tribunal or governmental body is currently pending or, to its
knowledge, threatened, against it or any of its properties or with respect to
this Agreement or the Certificates which, if adversely determined, would in the
opinion of the Contract Seller have a material adverse effect on the
transactions contemplated by this Agreement.
(f) Chief Executive Office. Its chief executive office is in
----------------------
California.
Section 3.02 Representations and Warranties Regarding Each Contract.
------------------------------------------------------
The Contracts listed on the Contract Schedule have been sold by GreenPoint
in its capacity as Contract Seller to the Trustee on the date of execution and
delivery hereof. As a condition of the purchase by the Trustee, the Contract
Seller represents and warrants to the Trustee as of the Closing Date (except as
otherwise expressly stated):
(a) Payments. As of the Cut-Off Date, no Contract was more than 59
--------
days delinquent.
(b) No Waivers. The terms of the Contract have not been waived,
----------
altered or modified in any respect, except by instruments or documents
identified in the Contract File or the Land Home Contract File, as applicable.
(c) Binding Obligation. The Contract is the legal, valid and binding
------------------
obligation of the Obligor thereunder and is enforceable in accordance with its
terms, except as such enforceability may be limited by laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
(d) No Defenses. The Contract is not subject to any right of
-----------
rescission, setoff, counterclaim or defense, including the defense of usury, and
the operation of any of the terms of the Contract or the exercise of any right
thereunder will not render the Contract unenforceable in whole or in part or
subject to any right of rescission, setoff, counterclaim or defense, including
the defense of usury, and no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto.
(e) Insurance. The Manufactured Home securing the Contract is
---------
covered by a Hazard Insurance Policy in the amount required by Section 4.09. All
premiums due as of the Closing Date on such insurance have been paid in full to
the applicable providers of such insurance.
(f) Origination. To the knowledge of the Contract Seller, the
-----------
Contract was either (i) originated by a manufactured housing dealer acting in
the regular course of its business, and purchased on an individual basis by the
Contract Seller in the ordinary course of business, (ii) originated by the
Contract Seller in the ordinary course of business, or (iii) purchased from Bank
of America, FSB, which had originated such Contracts in the ordinary course of
its business.
-29-
(g) Lawful Assignment. The Contract was not originated in and is not
-----------------
subject to the laws of any jurisdiction whose laws would make the transfer of
such Contract from the Contract Seller to the Trustee under this Agreement
unlawful.
(h) Compliance with Law. All requirements of any federal, state or
-------------------
local law, including usury, truth-in-lending and equal credit opportunity laws
and lender licensing laws, applicable to the Contract have been complied with.
(i) Contract in Force. The Contract has not been satisfied or
-----------------
subordinated in whole or in part or rescinded, the Manufactured Home securing
the Contract has not been released from the lien of the Contract in whole or in
part and, in the case of a Land Home Contract, the related Mortgaged Property
has not been released from the related Mortgage.
(j) Valid Security Interest. The Contract, other than any Land Home
-----------------------
Contract, creates a valid, subsisting and enforceable (except as may be limited
by laws affecting creditors' rights generally) first-priority security interest
in favor of GreenPoint as secured lender, or agent thereof, in the Manufactured
Home covered thereby; such security interest has been assigned by the Contract
Seller as secured lender to the Trustee in accordance with the terms herein and
the Trustee has a valid and perfected first-priority security interest in such
Manufactured Home. Each Mortgage is a valid first lien in favor of GreenPoint on
the real property securing the amount owed by the Obligor under the related Land
Home Contract subject only to (a) the lien of current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally in the area wherein the property subject to the
Mortgage is located or specifically reflected in the appraisal obtained in
connection with the origination of the related Land Home and (c) other matters
to which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by such Mortgage. The
Contract Seller has assigned all of its right, title and interest in such Land
Home Contract and related Mortgage, including the security interest in the
Manufactured Home covered thereby, to the Trustee. The Trustee has a valid and
perfected and enforceable (except as may be limited by laws affecting creditors'
rights generally and by general principles of equity) first priority security
interest in such Land Home Contract.
(k) Capacity of Parties. All parties to the Contract had capacity to
-------------------
execute the Contract.
(l) Good Title. With respect to each Contract not originated by it,
----------
it purchased such Contract for value and took possession thereof, without
knowledge that the Contract was subject to any security interest. It has not
sold, assigned or pledged the Contract to any Person other than the Trustee, and
prior to the transfer of the Contract by the Contract Seller to the Trustee, it
had good and marketable title thereto free and clear of any encumbrance, equity,
loan, pledge, charge, claim or security interest and was the sole owner thereof
with full right to transfer the Contract to the Trustee.
(m) No Defaults. As of the Cut-Off Date, there was no default,
-----------
breach, violation or event permitting acceleration existing under the Contract
and to its knowledge, no
-30-
event which, with notice and the expiration of any grace or cure period, would
constitute such a default, breach, violation or event permitting acceleration
under such Contract (except payment delinquencies permitted by clause (a)
above). The Contract Seller has not waived any such default, breach, violation
or event permitting acceleration.
(n) No Liens. As of the Closing Date, there are, to its knowledge,
--------
no liens or claims which have been filed for work, labor or materials affecting
the Manufactured Home or any related Mortgaged Property securing the Contract
which are or may be liens prior to, or equal or coordinate with, the lien of the
Contract.
(o) Installments. Such Contract provides for monthly payments of
------------
principal and interest which fully amortize the loan over its term. Each
Contract has a fixed Contract Rate. The scheduled monthly payment allocable to
interest on each Contract is calculated on the basis that each scheduled monthly
payment is applied on its Due Date, regardless of when it is actually made.
(p) Enforceability. The Contract contains customary and enforceable
--------------
(except as may be limited by laws affecting creditors' rights generally and by
general principles of equity) provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
collateral of the benefits of the security.
(q) Contract Schedule. The information set forth in the Contract
-----------------
Schedule is true and correct.
(r) One Original. There is only one original executed Contract. Such
------------
original Contract is in the custody of the Servicer on the Closing Date.
(s) Loan-to-Value Ratio. At the time of its origination, such
-------------------
Contract had a Loan-to-Value Ratio (rounded to the nearest 1%) not greater than
100%.
(t) Not Real Estate. With respect to each Contract other than a Land
---------------
Home Contract, the related Manufactured Home is personal property and is not
considered or classified as part of the real estate on which it is located under
the laws of the jurisdiction in which it is located and was personal property
and was not considered or classified as part of the real estate on which it was
located under the laws of the jurisdiction in which it was located at the time
the related Contract was executed by the parties thereto, and with respect to
each Contract including Land Home Contracts the related Manufactured Home is, to
the Contract Seller's knowledge, free of damage (including earthquake or
hurricane damage) and in good repair.
(u) Notation of Security Interest. With respect to each Contract
other than a Land Home Contract, if the related Manufactured Home is located in
a state in which notation of a security interest on the title document is
required or permitted to perfect such security interest, the title document
shows, or, if a new or replacement title document with respect to such
Manufactured Home is being applied for, such title document will be issued
within 180 days and will show, GreenPoint or BankAmerica Housing Services as the
holder of a first-priority security interest in such Manufactured Home. If the
related Manufactured Home is located in a state in which the filing of a
financing statement or the making of a fixture filing under the UCC is required
to perfect a security interest in manufactured housing, such filings have been
duly made
-31-
and show GreenPoint or BankAmerica Housing Services as the secured party. If the
related Manufactured Home secures a Land Home Contract, such Manufactured Home
and the related Mortgaged Property is subject to a Mortgage properly filed in
the appropriate public recording office or such Mortgage will be properly filed
in the appropriate public recording office within 180 days, naming GreenPoint as
mortgagee. In either case, the Trustee has the same rights as the secured party
of record would have (if such secured party were still the owner of the
Contract) against all Persons (including the Contract Seller and any trustee in
bankruptcy of GreenPoint or BankAmerica Housing Services) claiming an interest
in such Manufactured Home. Assuming consummation of the transactions
contemplated herein the Trustee has the same rights as the secured party of
record would have (if such secured party were still the owner of the Contract)
against all Persons claiming an interest in such Manufactured Home and, if
applicable, such Mortgaged Property.
(v) Secondary Mortgage Market Enhancement Act. The related
-----------------------------------------
Manufactured Home is a "manufactured home" within the meaning of ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Code, Section 5402(6). With respect to the Contracts originated by Bank
of America, FSB, Bank of America, FSB meets the requirements of Section
3(a)(41)(A)(ii) of the Securities Exchange Act of 1934, as amended. As of the
Cut-Off Date, the Contract Seller was approved for insurance by the Secretary of
Housing and Urban Development pursuant to Section 2 of the National Housing Act.
(w) Qualified Mortgage for REMIC. Each Contract is secured by a
----------------------------
"single family residence" within the meaning of Section 25(e)(10) of the Code.
The fair market value of the Manufactured Home securing each Contract was at
least equal to 80% of the adjusted issue price of the Contract at either (i) the
time the Contract was originated (determined pursuant to the REMIC Provisions)
or (ii) the time the Contract is transferred to the Trust Fund. Each Contract is
a "qualified mortgage" under Section 860G(a)(3) of the Code.
(x) Stamping of Contracts. Within 60 days of the Closing Date, each
---------------------
original Contract will have been stamped with the following legend: "This
Contract has been assigned to Bank One, National Association, as Trustee under
the Pooling and Servicing Agreement dated as of December 1, 2000 (between such
Trustee and GreenPoint Credit, LLC) or to any successor Trustee thereunder."
(y) Actuarial/Simple Interest Contracts. Each Contract is an
-----------------------------------
actuarial manufactured housing installment loan agreement or a manufactured
housing installment sales contract.
(z) Land Home Contracts. No Contract other than a Land Home Contract
-------------------
is secured, or intended to be secured, in whole or in part by the lien of a
mortgage or deed of trust creating a first lien on an estate in fee simple in
the real property.
(aa) Financing of Real Property. No Contract other than a Land Home
--------------------------
Contract has financed any amount in respect of real property.
-32-
(bb) Minimum and Maximum Contract Rate. As of the Cut-Off Date, the
---------------------------------
Contract with the lowest Contract Rate has a Contract Rate of 7.000% and the
Contract with the highest Contract Rate has a Contract Rate of 21.000%.
(cc) Life Insurance Policies. No Contract had a prepaid single-
-----------------------
premium credit life insurance policy associated with it.
(dd) High Cost Mortgages. No Contract is subject to the requirements
-------------------
in the Home Ownership and Equity Protection Act of 1994 that apply to "high
cost" mortgages.
(ee) Prepayment Penalties. No Contract provides for prepayment
--------------------
penalties.
(ff) Points and Fees. All points and fees related to each Contract
---------------
were disclosed in writing to the Obligor in accordance with applicable state and
federal law. Except in the case of a Contract in an original principal amount of
less than $60,000 which would have resulted in an unprofitable origination, no
Obligor was charged "points and fees" (whether or not financed) in an amount
greater than 5% of the principal amount of such Contract, such 5% limitation
calculated in accordance with the Lender Letter #LL03-00 dated April 11, 2000
for ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇.
Section 3.03 Representations and Warranties Regarding the Contracts in
---------------------------------------------------------
the Aggregate.
-------------
The Contract Seller represents and warrants that as of the Closing Date:
(a) Amounts. The aggregate principal amounts payable by Obligors
-------
under the Contracts as of the Cut-Off Date (including scheduled principal
payments due on or after the Cut-Off Date but paid prior to the Cut-Off Date)
equal or exceed the Cut-Off Date Pool Principal Balance.
(b) Characteristics. The Contracts have the following
---------------
characteristics as of the Cut-Off Date: (i) Contracts representing approximately
83.9% of the Contracts by remaining principal balance are attributable to loans
for purchases of new Manufactured Homes, and approximately 16.1% of the
Contracts by remaining principal balance are attributable to loans for purchases
of used Manufactured Homes; (ii) not more than approximately 6.60% of the
Contracts by remaining principal balance as of the Cut-Off Date are secured by
Manufactured Homes located in any one state, not more than 1.00% of the
Contracts by remaining principal balance are secured by Manufactured Homes
located in an area with the same zip code, not more than 1.00% of the Contracts
by remaining principal balance are secured by Manufactured Homes located in the
same manufactured housing park; (iii) no Contract has a remaining maturity of
more than 360 months; (iv) no Contract was originated before October 1998; and
(v) the final scheduled payment date on the Contract with the latest maturity is
in November 2030.
(c) Computer Tape. The Computer Tape made available by the Contract
-------------
Seller as of the Cut-Off Date was accurate as of its date and includes a
description of the same Contracts that are described in the Contract Schedule.
(d) Marking Records. Within 7 days following the Closing Date, the
---------------
Contract Seller will have caused the portions of the electronic master record of
its manufactured housing
-33-
installment sales contracts and installment loan agreements relating to the
Contracts sold by it as of the Closing Date to be clearly and unambiguously
marked to indicate that such Contracts constitute part of the Trust Fund and are
owned by the Trustee in accordance with the terms of the trust created
hereunder.
(e) No Adverse Selection. Except to ensure compliance with the
--------------------
representations and warranties made in Sections 3.02 and 3.03, no selection
procedures have been intentionally employed to achieve an adverse effect on the
interests of the Certificateholders, the Hedge Counterparty, the Swap
Counterparty or the Insurer in selecting the Contracts.
Section 3.04 Representations and Warranties Regarding the Contracts.
------------------------------------------------------
The Contract Seller represents and warrants that:
(a) Possession. Immediately prior to the Closing Date, the Servicer
----------
will have possession of each Contract and the related Contract File or Land Home
Contract File, as applicable (except for any certificate of title or Mortgage
that has not yet been returned from the appropriate public recording office).
There are and there will be no custodial agreements in effect materially and
adversely affecting the right of the Contract Seller to make, or to cause to be
made, any delivery required hereunder.
(b) Bulk Transfer Laws. The transfer, assignment and conveyance of
------------------
the Contracts, the Contract Files and the Land Home Contract Files by the
Contract Seller to the Trust Fund as contemplated by this Agreement are not
subject to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
Section 3.05 Repurchases of Contracts or Substitution of Contracts for
---------------------------------------------------------
Breach of Representations and Warranties.
----------------------------------------
(a) The Contract Seller shall either (i) repurchase a Contract sold
by it to the Trustee at such Contract's Repurchase Price, or (ii) if the
Contract Seller is able to satisfy the conditions of Section 3.05(b), remove
such Contract from the Trust Fund and substitute therefor an Eligible Substitute
Contract in accordance with and subject to the limitations of Section 3.05(b),
in each case within 90 days after the Contract Seller becomes aware, or receives
written notice from the Servicer or the Trustee, of a breach of a representation
or warranty of the Contract Seller set forth in Section 3.02 or 3.03 of this
Agreement that materially adversely affects the Trust Fund's interest in such
Contract, unless such breach has been cured; provided, however, that with
-------- -------
respect to any Contract incorrectly described on the Contract Schedule with
respect to remaining principal balance, which the Contract Seller would
otherwise be required to repurchase pursuant to this Section 3.05, the Contract
Seller may, in lieu of repurchasing such Contract, deposit in the Certificate
Account not later than one Business Day after such Determination Date cash in an
amount sufficient to cure such deficiency or discrepancy; and further provided,
------- --------
that with respect to a breach of a representation or warranty relating to the
Contracts in the aggregate and not to any particular Contract, the Contract
Seller may select Contracts to repurchase or substitute for such that, had such
Contracts not been included as part of the Contract Pool and after giving effect
to such substitution, if any, there would have been no
-34-
breach of such representation or warranty; and further provided, that in
------- --------
connection with any Contract that the Contract Seller is required to repurchase
or substitute due to a breach of representation or warranty set forth in Section
3.03, the Contract Seller shall at its own expense deliver to the Trustee an
opinion of counsel to the effect that the repurchase of such Contract will not
cause the Trust Fund to fail to qualify as a REMIC at any time any Certificate
is outstanding under then applicable REMIC Provisions, be deemed a contribution
to the Trust Fund after the Startup Day or cause any "prohibited transaction,"
in each case, that will result in the imposition of a tax under the applicable
REMIC Provisions. It is understood and agreed that the obligation of the
Contract Seller to repurchase or substitute for any Contract sold by it as to
which a breach of a representation or warranty set forth in Section 3.02 or 3.03
of this Agreement has occurred and is continuing shall constitute the sole
remedy respecting such breach available to the Certificateholders, the Trust
Fund or the Trustee; provided, however, that the Contract Seller shall defend
-------- -------
and indemnify the Trustee, the Certificate Administrator, the Trust Fund and the
Certificateholders against all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel, which may be
asserted against or suffered by any of them as a result of third-party claims
arising out of any breach of a representation or warranty set forth in Section
3.02(c), (d), (g), (h) or (w) of this Agreement. Notwithstanding any other
provision of this Agreement, the obligation of the Contract Seller under this
Section 3.05 shall not terminate upon an Event of Default.
Notwithstanding any other provision of this Agreement to the contrary, any
amount received on or recovered with respect to repurchased Contracts or
Replaced Contracts during or after the month of repurchase shall be the property
of the Contract Seller and need not be deposited in the Certificate Account.
Notwithstanding the foregoing, the Contract Seller shall not deposit cash
into the Certificate Account pursuant to this Section 3.05 after the three-month
period beginning on the Closing Date unless it shall first have obtained an
Opinion of Counsel to the effect that such deposit will not give rise to any tax
under Section 860F(a) (1) of the Code or Section 860G(d) of the Code. Any such
deposit shall not be invested.
The Trustee shall have no obligation to pay any taxes pursuant to this
Section 3.05, other than from moneys provided to it by the Contract Seller or
from moneys held therefor pursuant to Section 4.17. The Trustee shall be deemed
conclusively to have complied with this Section 3.05 if it follows the
directions of the Contract Seller required to be provided in the preceding
paragraph. Upon the repurchase of any Contract by the Contract Seller, the
Trustee shall delete such Contract from the Contract Schedule.
Notwithstanding the above provisions of this Section 3.05(a), the Contract
Seller shall not be required to repurchase or substitute for any Contract
relating to a Manufactured Home located in any jurisdiction on account of a
breach of the representation or warranty contained in Section 3.02(j) or (u) of
this Agreement solely on the basis of failure by the Contract Seller to cause
notations to be made on any document of title relating to any such Manufactured
Home or to execute any transfer instrument (including any UCC-3 assignments)
relating to any such Manufactured Home (other than a notation or a transfer
instrument necessary to show the Contract Seller as lienholder or legal title
holder) unless (i) a court of competent jurisdiction has adjudged that, because
of such failure, the Trustee does not have a perfected first-priority
-35-
security interest in such related Manufactured Home, or (ii) (A) the Contract
Seller has received written advice of counsel to the effect that a court of
competent jurisdiction has held that, solely because of a substantially similar
failure on the part of a pledgor or assignor of manufactured housing contracts
(who has perfected the assignment or pledge of such contracts), a perfected
first-priority security interest was not created in favor of the pledgee or
assignee (as the case may be) in a related manufactured home which is located in
such jurisdiction and which is subject to the same laws regarding the perfection
of security interests therein as apply to Manufactured Homes located in such
jurisdiction, and (B) the Contract Seller shall not have completed all
appropriate remedial action with respect to such Manufactured Home within 90
days after receipt of such written advice. Any such advice shall be from counsel
selected by the Contract Seller on a nondiscriminatory basis from among the
counsel used by the Contract Seller in its general business in the jurisdiction
in question. The Contract Seller shall have no obligation on an ongoing basis to
seek any advice with respect to the matters described in clause (ii) above.
However, the Contract Seller shall seek advice with respect to such matters
whenever information comes to the attention of its general counsel which causes
such general counsel to determine that a holding of the type described in clause
(ii)(A) might exist. If any counsel selected by the Contract Seller informs the
Contract Seller that no holding of the type described in clause (ii)(A) exists,
such advice shall be conclusive and binding on the parties with respect to the
applicable date and jurisdiction.
(b) On or prior to the date that is the second anniversary of the
Closing Date, the Contract Seller, at its election, may substitute a Contract
for any Contract that it is otherwise obligated to repurchase pursuant to
Section 3.05(a) (such Contract being referred to as the "Replaced Contract")
upon satisfaction of the following conditions:
(i) the Contract to be substituted for the Replaced Contract
is an Eligible Substitute Contract and the Contract Seller delivers an Officer's
Certificate, substantially in the form of Exhibit E, to the Trustee certifying
---------
that such Contract is an Eligible Substitute Contract, describing in reasonable
detail how such Contract satisfies the definition of the term "Eligible
Substitute Contract" (as to satisfaction of representations and warranties, such
description shall be that such Contract satisfies such representations and
warranties) and certifying that the Contract File or the Land Home Contract
File, as applicable, for such Contract is in the possession of the Servicer;
(ii) no more than fifty Eligible Substitute Contracts may be
substituted into the Trust Fund;
(iii) the Contract Seller shall have delivered to the Trustee
evidence of filing with the appropriate filing office of a UCC-1 financing
statement executed by the Contract Seller as debtor and naming the Trustee as
secured party and listing such Contract as collateral;
(iv) the Contract Seller shall have delivered to the Trustee an
Opinion of Counsel (a) to the effect that the substitution of such Contract for
such Replaced Contract will not (1) cause the Trust Fund to fail to qualify as a
REMIC at any time any Certificate is outstanding under then applicable REMIC
Provisions, (2) be deemed a contribution to the Trust Fund after the Startup Day
or (3) cause any "prohibited transaction," in each case, that will result in the
imposition of a tax under the applicable REMIC Provisions, and (b) to the effect
that,
-36-
except as to Contracts that are Land Home Contracts, no filing or other action
other than the filing of financing statements on Form UCC-1 with the filing
offices listed therein, naming the Contract Seller as debtor and the Trustee as
secured party as required by Section 3.05(a) of this Agreement and the filing of
continuation statements as required by Section 2.02(a) is necessary to perfect
as against third parties the conveyance of the substitute Contract by the
Contract Seller to the Trustee; and
(v) if the Scheduled Principal Balance of such Replaced
Contract is greater than the Scheduled Principal Balance of such Contract, the
Contract Seller shall have deposited in the Certificate Account the amount of
such excess (which amount shall be deemed a Principal Prepayment on such
Contract) and shall have included in the Officer's Certificate required by
clause (i) above a certification that such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such Contract
to, and delete such Replaced Contract from, the Contract Schedule (or cause such
addition and deletion to be accomplished). Such substitution shall be effected
prior to the first Determination Date that occurs more than 90 days after the
Contract Seller becomes aware or receives written notice from the Servicer or
the Trustee, of the breach referred to in Section 3.05(a).
(c) Promptly after the repurchase referred to in Section 3.05(a) or
the substitution referred to in Section 3.05(b), the Trustee shall execute such
documents as are presented to it by the Contract Seller and are reasonably
necessary to reconvey the repurchased Contract or Replaced Contract, as the case
may be, to the Contract Seller.
(d) Notwithstanding anything in this Section 3.05 to the contrary, in
the event any Opinion of Counsel referred to in this Section 3.05 indicates that
a repurchase or substitution, as the case may be, of a Contract will result in
the imposition of a tax under the applicable REMIC Provisions with respect to
"prohibited transactions," or deemed a contribution to the REMIC after the
"start-up day," the Contract Seller shall not be required to repurchase or
substitute the Contract to which such Opinion of Counsel relates unless and
until the Servicer has determined there is an actual or imminent default with
respect thereto or that the defect or breach giving rise to the repurchase or
substitution obligation adversely affects the enforceability of such Contract.
Section 3.06 General.
-------
(a) It is understood and agreed that the representations and
warranties in this Article III hereof shall remain operative and in full force
and effect, shall survive the transfer and conveyance of the Contracts by the
Contract Seller to the Trustee and shall inure to the benefit of the Trustee.
(b) Any cause of action against the Contract Seller relating to or
arising out of the breach of any of its representations and warranties made in
this Article III shall accrue as to any Contract upon (i) discovery of such
breach by the Contract Seller or notice thereof by the Trustee or Servicer to
the Contract Seller, (ii) failure by the Contract Seller to cure such breach,
and (iii) demand upon the Contract Seller by the Trustee for all amounts payable
in respect of such Contract under this Agreement.
-37-
ARTICLE IV
ADMINISTRATION AND SERVICING OF CONTRACTS
Section 4.01 Responsibility for Contract Administration and Servicing.
--------------------------------------------------------
GreenPoint hereby agrees to act as Servicer under this Agreement. The
Certificateholders by their acceptance of the Certificates consent to GreenPoint
acting as Servicer. The Servicer shall service and administer the Contracts
and, subject to the terms of this Agreement, shall have full power and authority
to do any and all things which it may deem necessary or desirable in connection
with such servicing and administration. Subject to Section 4.02, without
limiting the generality of the foregoing, the Servicer hereby is authorized and
empowered, when the Servicer believes it appropriate in its best judgment, to
execute and deliver, on behalf of the Certificateholders and the Trust Fund or
any of them, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge and all other comparable instruments, with
respect to the Contracts, with respect to the Manufactured Homes and with
respect to the Mortgaged Property. The Trustee shall furnish the Servicer with
any powers of attorney and other documents necessary or appropriate to enable
the Servicer to service and administer the Contracts. The relationship of the
Servicer (and of any successor to the Servicer as Servicer under this Agreement)
to the Trustee under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent of the
Trustee.
Section 4.02 Standard of Care.
----------------
In managing, administering, servicing and making collections on the
Contracts pursuant to this Agreement, the Servicer will, consistent with the
terms of this Agreement and applicable law, act with reasonable care, using that
degree of skill and care that it exercises with respect to similar manufactured
housing contracts owned and/or serviced by it, but in no event using a degree of
skill and care that is lower than that used generally in the servicing industry
for such manufactured housing contracts; provided, however, that notwithstanding
-------- -------
the foregoing, the Servicer shall not release or waive the right to collect the
unpaid balance on any Contract except if default or foreclosure on such Contract
has occurred or in the reasonable judgment of the Servicer is imminent and such
waiver or release is in the best interest of the Trust, in the reasonable
judgement of the Servicer. Notwithstanding anything to the contrary contained
in this Agreement, no provision of this Agreement shall be construed so as to
require the Servicer to take any action or fail to take any action in respect of
a Contract which action or failure violates applicable law.
Section 4.03 Records.
-------
The Servicer, during the period it is Servicer hereunder, shall maintain
such books of account and other records as will enable the Trustee and the
Insurer (if the Trustee or Insurer so elects in its discretion) to determine the
status of each Contract. Without limiting the generality of the preceding
sentence, the Servicer shall keep such records in respect of Liquidation
Expenses as will enable the Trustee and the Insurer (if the Trustee or Insurer
so elects in its
-38-
discretion) to determine that the correct amount of Net Liquidation Proceeds in
respect of a Liquidated Contract has been deposited in the Certificate Account.
The Servicer shall transmit full-file credit reporting data for each
Contract pursuant to ▇▇▇▇▇▇ ▇▇▇ Guide Announcement 95-19 and, the Servicer
agrees that for each Contract it shall report one of the following statuses each
month as follows: new origination, current, delinquent (30-, 60-, 90-days,
etc.), foreclosed, charged-off or similar related category.
Section 4.04 Inspection.
----------
(a) At all times during the term hereof, the Servicer shall afford
the Trustee and the Insurer, and the authorized agents of either, reasonable
access during normal business hours to the Servicer's records relating to the
Contracts and will cause its personnel to assist in any examination of such
records by the Trustee or any of its authorized agents. The examination referred
to in this Section 4.04 will be conducted in a manner which does not interfere
unreasonably with the Servicer's normal operations or customer or employee
relations. Without otherwise limiting the scope of the examination which the
Trustee or the Insurer may make, the Trustee and the Insurer, or the authorized
agents of either, using generally accepted audit procedures, may in their
discretion verify the status of each Contract and review the records relating
thereto for conformity to Monthly Reports prepared pursuant to Article V and
compliance with the standards represented to exist as to each Contract in this
Agreement.
(b) At all times during the term hereof, the Servicer shall keep
available a copy of the Contract Schedule at its principal executive office for
inspection by Certificate Owners.
Section 4.05 Establishment of and Deposits in Certificate Account.
----------------------------------------------------
On or before the Closing Date, the Trustee shall have established, and
thereafter shall maintain, a Certificate Account, which is an Eligible Account,
in the form of a segregated trust account titled "GreenPoint Manufactured
Housing Contract Trust, Pass-Through Certificates, Series 2000-6, Certificate
Account in trust for the Trustee as trustee for the benefit of the Class A
Certificateholders." As of the Closing Date, the Certificate Account shall be a
segregated trust account established at Bank One, National Association and shall
be invested in the One Group Institutional Money Market Fund (as long as such
fund is an Eligible Investment) or other similar Eligible Investment selected by
the Trustee. Eligible Investments shall mature or, in the case of a money
market fund, be redeemed not later than the Business Day immediately preceding
the Distribution Date next following the date of such investment (except that,
if such Eligible Investment is an obligation of the institution that maintains
the Certificate Account, then such Eligible Investments shall mature or, in the
case of a money market fund, be redeemed not later than such Distribution Date),
and shall not be sold or disposed of prior to its maturity. All such Eligible
Investments shall be made in the name of the Trustee, as trustee for the benefit
of the Certificateholders. Without limiting the generality of the foregoing,
the Trustee shall select obligations for the investment of the Certificate
Account from among the investments specified in clauses (a) and (b) of the
definition of "Eligible Investments." The Trustee shall select such Eligible
Investments, which shall mature as provided above, in such manner as to achieve
the
-39-
following objectives in the order stated: (1) preservation of principal values;
and (2) maximization of income.
All net income and gain realized from any such investments, to the extent
provided by this Agreement, shall be added to the Certificate Account.
The Servicer shall deposit in the Certificate Account as promptly as
practicable (but not later than the close of business of the second Business
Day) following receipt thereof:
(a) All amounts received from Obligors with respect to principal of
and interest on the Contracts (including Excess Contract Payments);
(b) All Net Liquidation Proceeds;
(c) All amounts required to be deposited by the Contract Seller
pursuant to Sections 3.05(a) and (b);
(d) All Monthly Advances pursuant to Section 5.01;
(e) Any proceeds of Hazard Insurance Policies pursuant to Section
4.11 and any amounts in respect of indemnification pursuant to Section 7.03;
(f) All amounts required to be withdrawn from an REO Account and
deposited in the Certificate Account in accordance with Section 4.17; and
(g) All Deficiency Amounts.
The Trustee shall cause the (i) Insurer to deposit in the Certificate
Account all Policy Claim Amounts pursuant to Section 5.08, (ii) Swap
Counterparty to deposit in the Certificate Account all Swap Amounts pursuant to
Section 5.09 and (iii) Hedge Counterparty to deposit in the Certificate Account
all amounts due to the Trust Fund or the Trustee pursuant to the Hedge
Agreement.
Section 4.06 Payment of Taxes.
----------------
If the Servicer becomes aware of the nonpayment by an Obligor of a real or
personal property tax or other tax or charge which may result in a lien upon a
Manufactured Home or Mortgaged Property prior to, or equal to or coordinate
with, the lien of the related Contract, the Servicer, consistent with Section
4.02, shall take action, including the advancing, but only to the extent that
the Servicer deems, in its sole judgement, such advance recoverable, of such
taxes or charges to avoid the attachment of any such lien. If the Servicer
shall have paid any such real or personal property tax or other tax or charge
directly on behalf of an Obligor, the Servicer may separately add such amount to
the Obligor's obligation as provided by the Contract, but, for the purposes of
this Agreement, may not add such amount to the remaining principal balance of
the Contract. If the Servicer shall have repossessed a Manufactured Home or
Mortgaged Property on behalf of the Certificateholders and the Trustee, the
Servicer shall advance, but only to the extent that the Servicer, in its sole
judgment, deems such advance recoverable, the amount of any such tax or charge
arising during the time such Manufactured Home is in the Servicer's
-40-
possession or title to the Mortgaged Property is in the name of the Servicer (or
any Person acting on behalf of the Servicer), unless the Servicer is contesting
in good faith such tax or charge or the validity of the claimed lien on such
Manufactured Home or Mortgaged Property. If the Obligor does not reimburse the
Servicer for payment of such taxes or charges pursuant to this Section 4.06 and
the related Contract is liquidated after a default, the Servicer shall be
reimbursed for its payment of such taxes or charges out of the related
Liquidation Proceeds. If Liquidation Proceeds are insufficient to reimburse the
Servicer for any such premiums, the amount of such insufficiency shall
constitute, and be reimbursable to the Servicer as, a Nonrecoverable Advance.
Section 4.07 Enforcement.
-----------
(a) The Servicer, consistent with Section 4.02, shall act with
respect to the Contracts in such manner as will maximize the receipt of
principal and interest on such Contracts.
(b) The Servicer shall ▇▇▇ to enforce or collect upon Contracts and,
where permitted by applicable law, may, in its sole judgment, ▇▇▇ to collect any
Deficiency at its own expense, in its own name, if possible, or as agent for the
Trustee in its own name, if possible, or as agent for the Trust Fund. If the
Servicer elects to commence a legal proceeding to enforce a Contract, the act of
commencement shall be deemed to be an automatic assignment of the Contract to
the Servicer for purposes of collection only. If, however, in any enforcement
suit or legal proceeding it is held that the Servicer may not enforce a Contract
on the ground that it is not a real party in interest or a holder entitled to
enforce the Contract, the Trustee shall, at the Servicer's expense, take such
steps as the Servicer deems necessary to enforce the Contract, including
bringing suit in its name or the names of the Certificateholders. If there has
been a recovery of attorneys' fees in favor of the Servicer or the Trust Fund in
an action involving the enforcement of a Contract, the Servicer shall be
reimbursed out of such recovery for its out-of-pocket attorney's fees and
expenses incurred in such enforcement action.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Contract in accordance with Section 4.02.
In exercising recourse rights, the Servicer is authorized on the Trustee's
behalf to reassign the Contract or to resell the related Manufactured Home and,
if applicable, the Mortgaged Property, to the Person against whom recourse
exists at the price set forth in the document creating the recourse.
(d) The Servicer may grant to the Obligor on any Contract any rebate,
refund or adjustment out of the Certificate Account that is required because of
an overpayment in connection with the partial prepayment or prepayment in full
of the Contract or otherwise. The Servicer may rescind, cancel or make material
modifications of the terms of any Contract (including modifying the amounts and
due dates of scheduled monthly payments); provided that, unless required by
--------
applicable law or to bring Contracts into conformity with the representations
and warranties contained in Article III, the Servicer will not permit any
rescission or cancellation of any Contract or any material modification of a
Contract other than in connection with a default or an imminent default on such
Contract unless the Servicer obtains an Opinion of Counsel to the effect that
such modification will not cause the Trust Fund to fail to qualify as a REMIC or
result in the imposition of taxes on the Trust Fund under the REMIC Provisions.
-41-
Notwithstanding the foregoing, the Servicer may, without an Opinion of Counsel,
make a one-time modification to the Contract Rate with respect to any Contract
by an amount equal to the lesser of (i) 5% of such Contract Rate and (ii) 0.50%
provided, however, that the aggregate Scheduled Principal Balance of the
Contracts so modified shall in no event exceed 10% of the Cut-Off Date Pool
Principal Balance.
Section 4.08 Transfer of Certificate Account.
-------------------------------
The Trustee may transfer the Certificate Account to a different depository
institution from time to time, so long as the Certificate Account remains an
Eligible Account. The Trustee shall give notice of any transfer of the
Certificate Account to each Rating Agency and the Insurer prior to such
transfer.
Section 4.09 Maintenance of Hazard Insurance Policies.
----------------------------------------
(a) Except as otherwise provided in subsection (b) of this Section
4.09, the Servicer shall cause to be maintained with respect to each Contract
one or more Hazard Insurance Policies which provide, at a minimum, the same
coverage as a standard form fire and extended coverage insurance policy that is
customary for manufactured housing, issued by a company authorized to issue such
policies in the state in which the Manufactured Home is located, and in an
amount which is not less than the maximum insurable value of such Manufactured
Home or the principal balance of the related Contract, whichever is less;
provided that such Hazard Insurance Policies may provide for customary
--------
deductible amounts, and further provided that the amount of coverage provided by
------- --------
each Hazard Insurance Policy shall be sufficient to avoid the application of any
co-insurance clause contained therein. If a Manufactured Home is located within
a federally designated special flood hazard area, the Servicer shall, to the
extent required by applicable law or regulation, also cause flood insurance to
be maintained, which coverage shall be at least equal to the minimum amount
specified in the preceding sentence or such lesser amount as may be available
under the federal flood insurance program. Each Hazard Insurance Policy caused
to be maintained by the Servicer shall contain a standard loss payee clause in
favor of the Servicer and its successors and assigns. If any Obligor is in
default in the payment of premiums on its Hazard Insurance Policy or Policies,
the Servicer shall advance such premiums out of its own funds (but only to the
extent that it deems, in its sole judgment, that such advances are recoverable),
and may add separately such premium to the Obligor's obligation as provided by
the Contract, but may not add such premium to the remaining principal balance of
the Contract for purposes of this Agreement. If the Obligor does not reimburse
the Servicer for payment of such premiums and the related Contract is liquidated
after a default, the Servicer shall be reimbursed for its payment of such
premiums out of the related Liquidation Proceeds.
(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home pursuant to
subsection (a) of this Section 4.09, and shall, to the extent that the related
Contract does not require the Obligor to maintain a Hazard Insurance Policy with
respect to the related Manufactured Home, maintain one or more blanket insurance
policies covering losses as provided in subsection (a) of this Section 4.09
resulting from the absence or insufficiency of individual Hazard Insurance
Policies. Any such blanket policy shall be substantially in the form that is the
industry standard for blanket
-42-
insurance policies issued to cover Manufactured Homes and in the amount
sufficient to cover all losses on the Contracts. The Servicer shall pay, out of
its own funds, the premium for such policy on the basis described therein and
shall deposit in the Certificate Account, on the Business Day next preceding the
Determination Date following the Collection Period in which the insurance
proceeds from claims in respect of any Contracts under such blanket policy are
or should have been received, the deductible amount with respect to such claims.
The Servicer shall not, however, be required to deposit any deductible amount
with respect to claims under individual Hazard Insurance Policies maintained
pursuant to subsection (a) of this Section 4.09.
(c) If the Servicer shall have repossessed a Manufactured Home on
behalf of the Trustee, the Servicer shall either (i) maintain at its expense,
but only to the extent that it deems, in its sole judgment, such expense
recoverable, a Hazard Insurance Policy with respect to such Manufactured Home,
or (ii) indemnify, to the extent that the Servicer should have maintained such
Hazard Insurance Policy pursuant to subclause (i) of this clause (c), the Trust
Fund against any damage to such Manufactured Home prior to resale or other
disposition that would have been covered by such Hazard Insurance Policy.
(d) Any cost incurred by the Servicer in maintaining any of the
foregoing insurance, for the purpose of calculating monthly distributions to
Certificateholders, shall not be added to the amount owing under the Contract,
notwithstanding that the terms of the Contract so permit. Except as provided in
the final sentence of this paragraph, the Servicer shall not be entitled to
reimbursement from the Contract Seller, the Trustee or the Certificateholders
for such costs. Such costs (other than the cost of the blanket policy) shall
only be recovered out of later payments by the Obligor for such premiums or, if
the related Contract is liquidated after a default, out of the related
Liquidation Proceeds. If Liquidation Proceeds are insufficient to reimburse the
Servicer for any such premiums, the amount of such insufficiency shall
constitute, and be reimbursable to the Servicer as, a Nonrecoverable Advance.
Section 4.10 Fidelity Bond and Errors and Omissions Insurance.
------------------------------------------------
The Servicer shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies acceptable to FNMA and FHLMC, on all officers, employees
or other persons acting in any capacity with regard to the Contracts to handle
funds, money, documents and papers relating to the Contracts. Any such fidelity
bond and errors and omissions insurance shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. No provision of this Section 4.10
requiring such fidelity bond and errors and omissions insurance shall diminish
or relieve the Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be in an amount as is customary for servicers that service a portfolio of
manufactured housing installment sales contracts of $100 million or more and
that are generally acceptable as servicers to institutional investors. On or
before April 1 of every year, the Servicer shall cause to be delivered to the
Trustee a certified true copy of such fidelity bond and insurance policy and a
statement from the surety and the insurer that such fidelity bond or insurance
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to the Trustee.
-43-
Section 4.11 Collections under Hazard Insurance Policies, Consent to
-------------------------------------------------------
Transfers of Manufactured Homes, Assumption Agreements.
------------------------------------------------------
(a) In connection with its activities as Servicer of the Contracts,
the Servicer agrees to present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Hazard Insurance Policies
and, in this regard, to take such reasonable action as shall be necessary to
permit recovery under any Hazard Insurance Policies or any blanket policies
obtained pursuant to Section 4.09(b) (except that the Servicer shall not be
required to make any advances that the Servicer believes, in its sole judgment,
would become a nonrecoverable advance). Any amounts collected by the Servicer
under any such Hazard Insurance Policies shall be deposited in the Certificate
Account pursuant to Section 4.05, except to the extent they are applied to the
restoration of the related Manufactured Home or released to the related Obligor
in accordance with the normal servicing procedures of the Servicer.
(b) In connection with any transfer of ownership of a Manufactured
Home and, if applicable, the related Mortgaged Property, by an Obligor to a
Person, the Servicer shall consent to any such transfer and permit the
assumption by such Person of the Contract related to such Manufactured Home,
provided that (i) such Person, in the judgment of the Servicer, meets the
--------
Servicer's underwriting standards then in effect, (ii) such Person enters into
an assumption agreement, (iii) the Servicer determines that permitting such
assumption by such Person will not materially increase the risk of nonpayment of
such Contract and (iv) such action will not adversely affect or jeopardize any
coverage under any insurance policy required by this Agreement. In the event the
Servicer determines that the conditions of the proviso of the preceding sentence
have not been fulfilled, then the Servicer shall withhold its consent to any
such transfer, but only to the extent permitted under the Contract and
applicable law and governmental regulations and only to the extent that such
action will not adversely affect or jeopardize any coverage under any insurance
policy required by this Agreement. In connection with any such assumption, the
rate of interest borne by, and all other material terms of, the related Contract
shall not be changed.
(c) In any case in which a Manufactured Home or Mortgaged Property is
to be conveyed to a Person by an Obligor, and such Person is to enter into an
assumption agreement or modification agreement or supplement to the Contract in
accordance with Section 4.11(b) or Section 4.07(d), upon the closing of such
conveyance, the Servicer shall cause the originals of the assumption agreement,
the release (if any), or the modification or supplement to the Contract to be
deposited with the Contract File or the Land Home Contract File, as applicable,
for such Contract. Any fee collected by the Servicer for entering into an
assumption or substitution of liability agreement with respect to such Contract
will be retained by the Servicer as additional servicing compensation.
Section 4.12 Realization upon Defaulted Contracts.
------------------------------------
Subject to applicable law, the Servicer shall repossess, foreclose upon or
otherwise comparably convert the ownership of Manufactured Homes and Mortgaged
Property securing all Contracts that come into default and which the Servicer
believes in its good faith business judgment will not be brought current.
Subject to Section 4.17, the Servicer shall manage, conserve and protect such
Manufactured Homes and Mortgaged Property for the purposes of
-44-
their prompt disposition and sale, and shall dispose of such Manufactured Homes
and Mortgaged Property on such terms and conditions as it deems in the best
interests of the Certificateholders. If the Servicer has actual knowledge that a
Mortgaged Property is affected by hazardous waste, then the Servicer shall not
cause the Trust Fund or the Trustee to acquire title to such Mortgaged Property
in a foreclosure or similar proceeding. For purposes of the preceding sentence,
the Servicer shall not be deemed to have actual knowledge that a Mortgaged
Property is affected by hazardous waste unless it shall have received written
notice that hazardous waste is present on such property and such written notice
has been made a part of the Land Home Contract File with respect to the related
Contract. In connection with such activities, the Servicer shall follow such
practices and procedures as are consistent with Section 4.02.
Section 4.13 Costs and Expenses.
------------------
Except as otherwise expressly provided herein, all costs and expenses
incurred by the Servicer in carrying out its duties under this Agreement,
including all fees and expenses incurred in connection with the enforcement of
Contracts (including enforcement of defaulted Contracts and repossessions of
Manufactured Homes and Mortgaged Property securing such Contracts), shall be
paid by the Servicer, and the Servicer shall not be entitled to reimbursement
hereunder, except to the extent such reimbursement is specifically provided for
in this Agreement. Notwithstanding the foregoing, the Servicer shall be
reimbursed out of the Liquidation Proceeds of a defaulted Contract for
Liquidation Expenses incurred by it in realizing upon the related Manufactured
Home and Mortgaged Property, including, but not limited to: (i) costs of
refurbishing and securing such Manufactured Home; (ii) transportation expenses
incurred in moving the Manufactured Home; (iii) reasonable legal fees and
expenses of outside counsel; and (iv) sales commissions paid to Persons that are
not Affiliates of the Servicer. The Servicer shall not incur any Liquidation
Expenses unless it determines in its good faith business judgment that incurring
such expenses will increase the Net Liquidation Proceeds from such Manufactured
Home and Mortgaged Property and that the Servicer will be reimbursed for such
Liquidation Expenses. If Liquidation Proceeds are insufficient to reimburse the
Servicer for any such Liquidation Expenses, the amount of such insufficiency
shall constitute, and be reimbursable to the Servicer as, a Nonrecoverable
Advance.
Section 4.14 Trustee to Cooperate.
--------------------
(a) Upon payment in full of any Contract, the Servicer will notify
the Trustee on the next Distribution Date by a certificate of a Servicing
Officer (which certification shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account pursuant to Section 4.05
have been deposited). The Servicer is authorized to execute an instrument in
satisfaction of such Contract and to do such other acts and execute such other
documents as the Servicer deems necessary to discharge the Obligor thereunder
and eliminate the security interest in the Manufactured Home. The Servicer shall
determine when a Contract has been paid in full. To the extent insufficient
payments are received on a Contract mistakenly determined by the Servicer to be
prepaid or paid in full and satisfied, the shortfall shall be paid by the
Servicer out of its own funds by deposit into the Certificate Account.
-45-
(b) From time to time as appropriate for servicing and foreclosure in
connection with any Land Home Contract, the Trustee shall, upon written request
of a Servicing Officer and delivery to the Trustee of a receipt signed by such
Servicing Officer, cause the original Land Home Contract and the related Land
Home Contract File to be released to the Servicer and shall execute such
documents as the Servicer shall deem necessary to the prosecution of any such
proceedings. The Trustee shall stamp the face of each such Land Home Contract to
be released to the Servicer with a notation that the Land Home Contract has been
assigned to the Trustee.
(c) The Servicer's receipt of a Land Home Contract and/or Land Home
Contract File shall obligate the Servicer to return the original Land Home
Contract and the related Land Home Contract File to the Trustee, or any person
acting on behalf of the Trustee, when its need by the Servicer has ceased unless
the Contract shall be paid in full, liquidated, repurchased or replaced as
described in Section 3.05.
(d) Upon request of a Servicing Officer, the Trustee shall, at the
expense of the Servicer, perform such acts as are reasonably requested by the
Servicer (including the execution of documents) and otherwise cooperate with the
Servicer in the enforcement of rights and remedies with respect to Contracts.
Section 4.15 Servicing and Other Compensation.
--------------------------------
The Servicer, as compensation for its activities hereunder including the
payment of fees and expenses of the Trustee, the Certificate Administrator and
the Paying Agent pursuant to Section 9.05, shall be entitled to receive on each
Distribution Date the Monthly Servicing Fee and Repossession Profits pursuant to
Section 5.03.
Additional servicing compensation in the form of Servicer Deficiency
Amounts, Late Payment Fees or Extension Fees and any transfer of equity or
assumption fees shall be retained by the Servicer. The Servicer shall not be
reimbursed for its costs and expenses in servicing the Contracts except as
otherwise expressly provided herein.
No transfer, sale, pledge or other disposition of the Servicer's right to
receive all or any portion of the Monthly Servicing Fee shall be made, and any
such attempted transfer, sale, pledge or other disposition shall be void, unless
such transfer is made to a successor Servicer in connection with the assumption
by such successor Servicer of the duties hereunder pursuant to Section 7.07 and
all (and not a portion) of the Monthly Servicing Fee is transferred to such
successor Servicer.
Section 4.16 Custody of Contracts.
--------------------
(a) Subject to the terms and conditions of this Section 4.16, the
Servicer agrees to act as custodian of the Contract Files (other than the Land
Home Contract Files) for the benefit of the Certificateholders and the Trust
Fund. The Certificateholders by their acceptance of the Certificates, consent to
the Servicer acting as custodian, and the Servicer agrees to maintain the
Contract Files (other than the Land Home Contract Files) as custodian therefor.
-46-
(b) The Servicer agrees to maintain the related Contract Files (other
than the Land Home Contract Files) at its offices where they are presently
maintained, or at such other offices of the Servicer in the State of California
as shall from time to time be identified to the Trustee by ten days' prior
written notice. The Servicer may temporarily move individual Contract Files,
Land Home Contract Files or, in each case, any portion thereof without notice as
necessary to conduct collection and other servicing activities in accordance
with its customary practices and procedures.
(c) As custodian, the Servicer shall have and perform the following
powers and duties:
(i) hold the Contract Files (other than the Land Home Contract
Files) on behalf of the Certificateholders and the Trustee, maintain accurate
records pertaining to each Contract to enable it to comply with the terms and
conditions of this Agreement, maintain a current inventory thereof and conduct
annual physical inspections of Contract Files held by it under this Agreement;
(ii) implement policies and procedures in writing and signed by
a Servicing Officer, with respect to persons authorized to have access to the
Contract Files on the Servicer's premises and the receipting for Contract Files
taken from their storage area by an employee of the Servicer for purposes of
servicing or any other purposes; and
(iii) attend to all details in connection with maintaining
custody of the Contract Files on behalf of the Certificateholders and the
Trustee.
(d) In performing its duties under this Section 4.16, the Servicer
agrees to act in accordance with the standard of care set forth in Section 4.02.
The Servicer shall promptly report to the Trustee any failure by it to hold the
Contract Files as herein provided, and shall promptly take appropriate action to
remedy any such failure. In acting as custodian of the Contract Files, the
Servicer further agrees not to assert any ownership interests in the Contracts
or the Contract Files. The Servicer agrees to indemnify the Certificateholders
and the Trustee for any and all liabilities, obligations, losses, damages,
payments, costs or expenses of any kind whatsoever which may be imposed on,
incurred or asserted against the Certificateholders and the Trustee as the
result of any act or omission by the Servicer relating to the maintenance and
custody of the Contract Files that constitutes a breach of the Servicer's
obligations hereunder; provided, however, that the Servicer will not be liable
-------- -------
for any portion of any such amount resulting from the negligence or willful
misconduct of any other Person.
(e) Not later than 60 days from the Closing Date, the Contract Seller
shall deliver, or cause to be delivered, to the Trustee the following:
(i) the Land Home Contract Files;
(ii) the original Land Home Contracts endorsed as provided in
Section 3.02(x) (which endorsement may be manual or facsimile signature) on
behalf of the Contract Seller; and
-47-
(iii) Assignments from the Contract Seller to the Trustee, which
Assignments shall be in form and substance for recording, but shall not be
recorded except as required by Section 4.22 below;
Notwithstanding anything to the contrary contained in this Section 4.16(e), in
those instances where the public recording office retains the original Mortgage,
the Assignment of the Mortgage or the intervening Assignments of the Mortgage
after it has been recorded, the Contract Seller shall be deemed to have
satisfied its obligations hereunder upon delivery to the Trustee of a copy of
such Mortgage, such Assignment or Assignments of Mortgage certified by the
public recording office to be a true copy of the recorded original thereof.
Within 90 days following the Closing Date, the Trustee shall review each
Land Home Contract File to determine that all required documents set forth in
each item of the first paragraph of this Section 4.16(e) have been executed and
received and that such documents relate to the Land Home Contracts identified on
the Contract Schedule. For purposes of this determination, the Trustee may rely
on the purported due execution and genuineness of any signature thereon. If
within such 90 day period the Trustee finds that any document constituting a
part of a Land Home Contract File was not executed, defective or received or is
unrelated to the Land Home Contracts identified in the Contract Schedule (in
this Section 4.16(e), a "defect"), the Trustee shall promptly upon the
conclusion of its review notify the Servicer and the Servicer shall notify the
Contract Seller. The Contract Seller shall have a period of 90 days from
receipt of such notice within which to correct or cure any such defect after the
Contract Seller has been notified of such. If the Contract Seller cannot
correct or cure any such defect with respect to a Land Home Contract within such
90 day period, it shall comply with the provisions of Section 3.05 hereof.
If recordation of any Assignment is required hereunder, the original of
each such recorded Assignment shall be delivered to the Trustee within 10 days
following the date on which it is returned to the Contract Seller by the office
with which such Assignment was filed for recordation. Upon receipt by the
Trustee of the recorded Assignment, such recorded Assignment shall become part
of the Land Home Contract File.
(f) Custodial Arrangements. The Trustee may appoint a custodian who
----------------------
is acceptable to the Servicer and the Contract Seller and who, upon execution of
a custodial agreement, shall maintain possession of the Land Home Contract
Files, together with assignments in recordable form, or such part of them as the
Trustee shall direct, as agent of the Trustee pursuant to the terms of such
custodial agreement. The appointment of such custodian shall not relieve the
Trustee of its obligations hereunder. The Trustee will notify the Rating
Agencies upon the appointment of any custodian.
The Trustee shall keep the Servicer apprised at all times after the Closing
Date of the location of the Land Home Contract Files. The Trustee shall take
all steps that are reasonably necessary or appropriate in order to facilitate
the Servicer's access to the Land Home Contract Files during normal business
hours of the Trustee or any custodian and shall cooperate fully with the
Servicer in securing such access.
-48-
Section 4.17 REMIC Compliance.
----------------
(a) The REMIC Administrator shall make an election to treat the Trust
Fund (other than the Hedge Agreement and the Spread Account) as a REMIC under
the Code and, if necessary, under applicable state law. Such election will be
made on Form 1066 or other appropriate federal tax or information return
(including Form 8811) or any appropriate state return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. For the purposes of the REMIC election in respect of the Trust Fund,
each of the Class A Certificates (exclusive of any payments received thereon
pursuant to the interest in the Hedge Agreement represented thereby) shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the REMIC. The REMIC
Administrator and the Trustee shall not permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the REMIC other than the
Certificates. In accordance with the foregoing, the REMIC Administrator, the
Servicer and the Trustee shall, and the Certificateholders by acceptance of
their Certificates shall agree to, treat the Swap as a "credit enhancement
contract" within the meaning of Treasury Regulations (S)1.860G-2(c).
(b) The Closing Date is hereby designated as the "startup day" (the
"Startup Date") of the Trust Fund within the meaning of Section 860G(a)(9) of
the Code.
(c) The REMIC Administrator shall at all times hold a Class R
Certificate representing a 0.01% Percentage Interest of all Class R Certificates
and shall be designated as "the tax matters person" with respect to the REMIC in
the manner provided under Treasury Regulations section 1.860F-4(d) and temporary
Treasury Regulations section 301.6231(a)(7)-1T. The REMIC Administrator, as tax
matters person, shall (i) act on behalf of the REMIC in relation to any tax
matter or controversy involving the Trust Fund and (ii) represent the Trust Fund
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the REMIC Administrator shall be entitled to reimbursement
therefor out of amounts attributable to the Contracts on deposit in the
Certificate Account provided by Section 5.03 unless such legal expenses and
costs are incurred by reason of the REMIC Administrator's willful misfeasance,
bad faith or gross negligence. If the REMIC Administrator is not the Servicer
hereunder, the REMIC Administrator shall perform its duties as tax matters
person and shall be paid reasonable compensation not to exceed $3,000 per year
by the Servicer hereunder for so acting as the REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all
of the tax returns that it determines are required with respect to the REMIC
created hereunder and deliver such tax returns in a timely manner to the Trustee
and the Trustee shall sign and file such tax returns in a timely manner. The
expenses of preparing such returns shall be borne by the REMIC Administrator
without any right of reimbursement therefor. The REMIC Administrator agrees to
indemnify and hold harmless the Trustee with respect to any tax liability
arising from the Trustee's signing of tax returns that contain errors or
omissions. The Trustee and Servicer shall promptly provide the REMIC
Administrator with such information as the REMIC Administrator may from time to
time request for the purpose of enabling the REMIC Administrator to prepare tax
returns.
-49-
(e) The REMIC Administrator shall provide (i) to any transferor of a
Class R Certificate such information as is necessary for the application of any
tax relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee and the Trustee shall forward to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of the REMIC.
(f) The REMIC Administrator and the Servicer shall take such actions
and shall cause the REMIC created hereunder to take such actions as are
reasonably within the REMIC Administrator's or the Servicer's control and the
scope of its duties more specifically set forth herein as shall be necessary or
desirable to maintain the status thereof as a REMIC under the REMIC Provisions
(and the Trustee shall assist the Servicer and the REMIC Administrator, to the
extent reasonably requested by the Servicer and the REMIC Administrator to do
so). The REMIC Administrator and the Servicer shall not knowingly or
intentionally take any action, cause the Trust Fund to take any action or fail
to take (or fail to cause to be taken) any action reasonably within their
respective control that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited to
the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860(G)(d) of the
Code) (either such event, in the absence of an Opinion of Counsel or the
indemnification referred to in this sentence, an "Adverse REMIC Event") unless
the REMIC Administrator or the Servicer, as applicable, has received an Opinion
of Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the REMIC Administrator or the Servicer, as
applicable, determines that taking such action is in the best interest of the
Trust Fund and the Certificateholders, at the expense of the Trust Fund, but in
no event at the expense of the REMIC Administrator, the Contract Seller, the
Servicer or the Trustee) to the effect that the contemplated action will not,
with respect to the REMIC created hereunder, endanger such status or, unless the
REMIC Administrator determines in its sole discretion to indemnify the Trust
Fund against the imposition of such a tax, result in the imposition of such a
tax. Wherever in this Agreement a contemplated action may not be taken because
the timing of such action might result in the imposition of a tax on the Trust
Fund, or may only be taken pursuant to an Opinion of Counsel that such action
would not impose a tax on the Trust Fund, such action may nonetheless be taken
provided that the indemnity given in the preceding sentence with respect to any
taxes that might be imposed on the Trust Fund has been given and that all other
preconditions to the taking of such action have been satisfied. The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the REMIC Administrator or the Servicer, as applicable, has advised
it in writing that it has received an Opinion of Counsel to the effect that an
Adverse REMIC Event could occur with respect to such action. In addition, prior
to taking any action with respect to the REMIC or its assets, or causing the
REMIC to take any action, which is not expressly permitted under the terms of
this Agreement, the Trustee will consult with the REMIC Administrator or the
Servicer, as applicable, or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to the
REMIC, and the Trustee shall not take any such action or cause the REMIC to take
any such action as to which the REMIC Administrator or the Servicer, as
applicable, has advised it in writing that an Adverse REMIC Event could occur.
The REMIC Administrator or the Servicer, as applicable, may
-50-
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not expressly permitted by this
Agreement, but in no event at the expense of the REMIC Administrator or the
Servicer. At all times as may be required by the Code, the Servicer will to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of the REMIC as
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax, including interest, penalties,
additional amounts or additions to tax (a "Tax"), is imposed on the Trust Fund,
such Tax shall be charged against amounts otherwise required to be distributed
to the Holders of the Class R Certificates. The Trustee is hereby authorized to
retain, or cause the Paying Agent to retain, from amounts otherwise required to
be distributed to the Holders of the Class R Certificates sufficient funds to
pay or provide for the payment of, and to actually pay, or cause the Paying
Agent to pay, such Tax as is legally owed by the Trust Fund (but such
authorization shall not prevent the Servicer or the REMIC Administrator from
contesting any such Tax in appropriate proceedings, and withholding payment of
such Tax, if permitted by law, pending the outcome of such proceedings). To the
extent that sufficient amounts cannot be so retained to pay or provide for the
payment of any tax imposed on gain realized from any prohibited transaction (as
defined in the REMIC Provisions), the Trustee is hereby authorized to and shall
segregate, into a separate non-interest-bearing account, the net income from
such prohibited transactions and pay, or cause the Paying Agent to pay, such
Tax. In the event any (i) amounts initially retained from amounts required to be
distributed to the Holders of the Class R Certificates and (ii) income so
segregated and applied towards the payment of such Tax shall not be sufficient
to pay such Tax in its entirety, the amount of the shortfall shall be paid from
funds in the Certificate Account notwithstanding anything to the contrary
contained herein. To the extent any such segregated income or funds from the
Certificate Account are paid to the Internal Revenue Service, the Trustee shall
retain, or cause to be retained, an amount equal to the amount of such income or
funds so paid from future amounts otherwise required to be distributed to the
Holders of the Class R Certificates and shall deposit such retained amounts in
the Certificate Account for distribution to the Holders of the Regular
Certificates.
(h) The Trustee, the REMIC Administrator and the Servicer shall, for
federal income tax purposes, maintain books and records with respect to the
REMIC on a calendar year and on an accrual basis or as otherwise may be required
by the REMIC Provisions.
(i) Following the Startup Day, neither the Servicer nor the Trustee
shall accept any contributions of assets to the REMIC unless (subject to Section
4.17(f)) the Servicer and the Trustee shall have received an Opinion of Counsel
(at the expense of the party seeking to make such contributions) to the effect
that the inclusion of such assets in the REMIC will not cause the REMIC to fail
to qualify as a REMIC at any time that any Certificates are outstanding or
subject the REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) Neither the Servicer nor the Trustee shall (subject to Section
4.17(f)) enter into any arrangement by which the REMIC will receive a fee or
other compensation for services nor permit the REMIC to receive any income from
assets other than "qualified mortgages" as
-51-
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance of each Class of Certificates representing a regular
interest in the REMIC would be reduced to zero is the sixth Distribution Date
following the latest scheduled maturity of any Contract.
(l) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the REMIC.
(m) Neither the Trustee nor the Servicer shall sell, dispose of or
substitute for any of the Contracts (except in connection with (i) the default,
imminent default or foreclosure of a Contract, including but not limited to, the
acquisition or sale of a Manufactured Home or a Mortgaged Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of the REMIC, (iii) the
termination of the REMIC pursuant to Article X of this Agreement or (iv) a
purchase of Contracts pursuant to Article III of this Agreement) nor acquire any
assets for the REMIC, nor sell or dispose of any investments in the Certificate
Account for gain nor accept any contributions to the REMIC after the Closing
Date unless it has received an Opinion of Counsel that such sale, disposition,
substitution or acquisition will not (a) affect adversely the status of the
REMIC as a REMIC or (b) unless the REMIC Administrator has determined in its
sole discretion to indemnify the Trust Fund against such tax, cause the REMIC to
be subject to a tax on "prohibited transactions" or "contributions" pursuant to
the REMIC Provisions.
(n) Each Holder of a Class R Certificate, by purchasing such Class R
Certificate, agrees to give the Servicer written notice that it is a "pass-
through interest holder" within the meaning of Temporary Treasury Regulations
Section 1.67-3T(a)(2)(i)(A) immediately upon becoming the Holder of such Class R
Certificate, if it is, or is holding such Class R Certificate on behalf of, a
"pass-through interest holder." The Spread Account and amounts distributed
thereto pursuant to Section 5.02(a) hereof shall not be assets of the REMIC or
the Trust Fund. The Class R Certificateholder shall be the owner of the Spread
Account for federal income tax purposes and shall be responsible for all taxes
payable with respect to distributions thereto.
(o) In the event that any Manufactured Home or Mortgaged Property is
acquired in a repossession (an "REO Property"), the Servicer shall sell any REO
Property within three years of its acquisition by the Trust Fund, unless (i) at
least 60 days before such three-year period would otherwise expire, the Servicer
applies for an extension of such three-year period pursuant to Sections
856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Servicer shall sell
such REO Property within the applicable extension period or (ii) at the request
of the Servicer, the Trustee seeks, and subsequently receives, an Opinion of
Counsel, addressed to the Trustee and the Servicer, to the effect that the
holding by the Trust Fund of such REO Property subsequent to three years after
its acquisition will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund as defined in Section 860F of the Code or cause
the Trust Fund to fail to qualify as a REMIC at any time that any Certificates
are outstanding. The
-52-
Servicer shall manage, conserve, protect and operate each REO Property solely
for the purpose of its prompt disposition and sale in a manner that does not
cause any such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code or result in the receipt by the
REMIC of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property" which is
subject to taxation under the REMIC Provisions. In connection with its efforts
to sell such REO Property, the Servicer shall either itself or through an agent
selected by the Servicer protect and conserve such REO Property in the same
manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of the
interests of the Certificateholders, rent the same, or any part thereof, as the
Servicer deems to be in the best interest of the Servicer and the
Certificateholders for the period prior to the sale of such REO Property.
(p) The Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall establish and maintain with
respect to each REO Property an account held in trust for the Trustee for the
benefit of the Certificateholders (each, an "REO Account"), which shall be an
Eligible Account and the funds therein shall be invested in Eligible Investments
that will mature not later than the Business Day preceding the applicable
Determination Date. The Servicer shall be entitled to retain or withdraw any
interest income paid on funds deposited in each REO Account by the depository.
(q) The Servicer shall deposit, or cause to be deposited, on a daily
basis in each REO Account all revenues received with respect to operation of the
related REO Property and shall withdraw therefrom funds necessary for the proper
operation, management and maintenance of the REO Property. On or before each
Determination Date, the Servicer shall withdraw from each REO Account and
deliver to the Trustee for deposit into the Certificate Account the income from
the REO Property on deposit in the REO Account, net of its reasonable fees and
expenses.
(r) The disposition of REO Property shall be carried out by the
Servicer at such price and upon such terms and conditions as the Servicer shall
deem necessary or advisable, as shall be normal and usual in its general
servicing activities.
(s) The proceeds from the disposition of any REO Property, net of any
reimbursement to the Servicer as provided herein, shall be deposited in the REO
Account and shall be deposited in the Certificate Account when the related
Contract becomes a Liquidated Contract.
Section 4.18 Management of REO Property.
--------------------------
(a) If the Trustee acquires any REO Property pursuant to Section
4.17, the Servicer shall have full power and authority, subject only to the
specific requirements and prohibitions of this Agreement, to do any and all
things in connection therewith as are consistent with the manner in which the
Servicer manages and operates similar property owned by the Servicer or any of
its Affiliates, all on such terms and for such period as the Servicer deems to
be in the best interests of Certificateholders, and, consistent therewith, shall
withdraw from the REO
-53-
Account, to the extent of amounts on deposit therein with respect to such REO
Property, funds necessary for the proper operation, management and maintenance
of such REO Property, including:
(i) all insurance premiums due and payable in respect to such
REO Property;
(ii) all real estate taxes and assessments in respect to such
REO Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account in respect of any
REO Property are insufficient for the purposes set forth in (i)-(iii) above with
respect to such REO Property, the Servicer shall advance from its own funds such
amount as is necessary for such purposes if, but only if, the Servicer would
make such advances if the Servicer owned such REO Property and if in the
Servicer's judgment, the payment of such amounts will be recoverable from the
operation or sale of such REO Property.
(b) Notwithstanding the foregoing, the Servicer shall not:
(i) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or other
improvement was completed before default on the related Contract became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(ii) directly operate, or allow any other Person to directly
operate, any REO Property on any date more than 90 days after its date of
acquisition;
unless, in any such case, the Servicer has requested and received an Opinion of
Counsel to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Servicer may take such actions as are specified in such Opinion of Counsel.
(c) The Servicer may contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that (A) the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO Property,
including those listed in subsection (a) hereof, (B) hold all related revenues
in a segregated account, which shall be an Eligible Account, and (C) remit all
related revenues collected (net of such costs and expenses and any fees retained
by such Independent Contractor) to the Servicer on a monthly or more frequent
basis;
-54-
(iii) none of the provisions of this Section 4.18(c) relating to
any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Servicer of any of its duties and obligations to
the Trustee on behalf of Certificateholders with respect to the operation and
management of any such REO Property; and
(iv) the Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Servicer by such Independent
Contractor, and nothing in this Agreement shall be deemed to limit or modify
such indemnification. The Servicer shall be entitled to pay all fees owed to
any such Independent Contractor out of the REO Account pursuant to Section 4.17.
(d) Subject to Section 4.18(b), the Servicer shall itself be entitled
to operate and manage any foreclosure property and, in such event, shall be
entitled to pay itself a monthly management fee in accordance with Section 4.17;
provided that the amount of such management fee shall not exceed the amount
--------
customarily charged for the operation and management of similar property in the
locality of such REO Property by property managers other than the Servicer or
its Affiliates. If Liquidation Proceeds are insufficient to reimburse the
Servicer for any costs associated with the management of REO Property, the
amount of such insufficiency shall constitute, and be reimbursable to the
Servicer as, a Nonrecoverable Advance.
Section 4.19 Reports to the Securities and Exchange Commission.
-------------------------------------------------
The Servicer shall use reasonable efforts to assist the Contract Seller in
obtaining any information maintained by it in the ordinary course of performing
its duties hereunder that is necessary for the Contract Seller, on behalf of the
Trust Fund, to cause to be filed with the Securities and Exchange Commission any
periodic reports required to be filed under the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission thereunder.
Section 4.20 Annual Statement as to Compliance.
---------------------------------
The Servicer will deliver to the Contract Seller, the Trustee, the Insurer
and each Rating Agency on or before April 1 of each year, commencing in 2002, an
Officer's Certificate (i) stating that a review of the activities of the
Servicer during the preceding calendar year and of performance under this
Agreement has been made under such officer's supervision, and (ii) stating that
to the best of such officer's knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof.
Section 4.21 Annual Independent Public Accountants' Servicing Report.
-------------------------------------------------------
On or before April 1 of each year, commencing in 2002, the Servicer, at its
expense, shall cause a firm of independent public accountants which is a member
of the American Institute of
-55-
Certified Public Accountants to furnish a statement to the Contract Seller, the
Trustee, the Insurer and each Rating Agency to the effect that such firm has
examined certain documents and records relating to the servicing of the
Contracts under this Agreement and, at the option of the Servicer, manufactured
housing installment sale contracts and installment loan agreements under pooling
and servicing agreements substantially similar to this Agreement with regard to
servicing procedures (such statement to have attached thereto a schedule setting
forth the pooling and servicing agreements covered thereby, including this
Agreement) and that, on the basis of such examination conducted substantially in
compliance with this Agreement or such agreements, as the case may be, and
generally accepted auditing standards, such servicing has been conducted
substantially in compliance with this Agreement or such pooling and servicing
agreements, as the case may be, except for such exceptions as such firm believes
to be immaterial and such other exceptions or errors in records that may be set
forth in such statement. For purposes of such statement, such firm may assume
conclusively that all pooling and servicing agreements among the Contract
Seller, the Servicer and the Trustee relating to certificates evidencing an
interest in actuarial and/or simple interest manufactured housing contracts are
substantially similar to one another, except for any such pooling and servicing
agreement which by its terms specifically states otherwise.
Section 4.22 Recording of Assignments of Mortgage.
------------------------------------
(a) If the Contract Seller or the Servicer receives actual notice or
knowledge that GreenPoint Bank, the parent of the Contract Seller, is no longer
assigned a long-term senior debt rating from ▇▇▇▇▇'▇ of Baa3 or higher, of BBB-
or higher from S&P, the Servicer shall promptly provide notice to the Trustee
and the Insurer that GreenPoint Bank no longer has such rating. If at any time
during the term of this Agreement the Trustee receives written notice from the
Servicer or the Contract Seller that GreenPoint Bank does not have a long-term
senior debt rating from ▇▇▇▇▇'▇ of Baa3 or higher, of BBB- or higher from S&P,
or if the Trustee and the Insurer otherwise becomes aware that the Contract
Seller is no longer assigned such rating, the Trustee, at the Contract Seller's
expense, shall file promptly in the appropriate recording offices the
assignments to the Trustee on behalf of the Trust Fund of each Mortgage securing
a Land Home Contract sold by the Contract Seller to the Trust Fund.
(b) If at any time GreenPoint Bank does not own, directly or
indirectly, at least 51% of the membership interests of GreenPoint, GreenPoint
shall promptly provide notice to the Trustee and the Insurer that GreenPoint
Bank no longer has such ownership interest. If at any time during the term of
this Agreement the Trustee and the Insurer receives written notice from
GreenPoint that GreenPoint Bank does not own, directly or indirectly, at least
51% of the membership interests of GreenPoint, or if the Trustee and the Insurer
otherwise becomes aware that GreenPoint Bank no longer has such ownership
interest, the Trustee, at the Contract Seller's expense, shall file promptly in
the appropriate recording offices the assignments to the Trustee on behalf of
the Trust Fund of each Mortgage securing a Land Home Contract.
Section 4.23 Notice of Rating Change.
-----------------------
In the event that the Class A-3 Certificates are not rated "AAA" by
S&P and "Aaa" by ▇▇▇▇▇'▇, respectively, on the Closing Date, the Servicer shall
give written notice to the Auction Agent and the Insurer of the initial ratings
on the Class A-3 Certificates by S&P and ▇▇▇▇▇'▇
-56-
substantially in the form of the Notice of Ratings. If there is a change in any
of the ratings of the Certificates at any time, the Servicer shall give written
notice to the Auction Agent and the Insurer or if the Class A-3 Certificates are
no longer maintained as Book-Entry Certificates by the Depository, to the
Trustee, substantially in the form of the Notice of Ratings within three (3)
Business Days of its receipt of notice of such change, but not later than the
close of business on the Business Day immediately preceding an Auction Date (as
defined in Schedule I) if the Servicer has received written notice of such
change in a rating or ratings prior to 12:00 noon on such Business Day, and the
Auction Agent or the Trustee, as applicable, shall take into account such change
in rating or ratings for purposes hereof and any Auction, so long as such Notice
of Ratings is received by the Auction Agent or Trustee no later than the close
of business on such Business Day.
ARTICLE V
PAYMENTS, MONTHLY ADVANCES AND MONTHLY REPORTS
Section 5.01 Monthly Advances by the Servicer.
--------------------------------
(a) By the close of business on the day prior to each Distribution
Date, the Servicer shall (i) cause to be deposited, out of its own funds, in the
Certificate Account the Monthly Advance for the related Distribution Date, (ii)
direct the Trustee to apply all or a portion of the Excess Contract Payments in
the Certificate Account to make such Monthly Advance, or (iii) do any
combination of clauses (i) and (ii) to make such Monthly Advance. To the extent
that an Excess Contract Payment (or any portion thereof) that has been applied
pursuant to clause (ii) or (iii) is required for application to all or a portion
of a Scheduled Payment due on the related Contract, the Servicer shall deposit,
out of its own funds, the amount of such Excess Contract Payment (or the portion
thereof required for such Scheduled Payment) into the Certificate Account on the
immediately succeeding Due Date, and the amount so deposited will become part of
the Outstanding Amount Advanced.
(b) The Servicer shall reimburse itself for the Outstanding Amount
Advanced out of (i) collections of delinquent payments of principal and interest
on Contracts as to which the Servicer previously made a Monthly Advance, (ii)
available funds in the Certificate Account attributable to Excess Contract
Payments or (iii) any combination of clauses (i) and (ii) above.
(c) If the Servicer determines that any advance made pursuant to
Section 5.01(a) has become a Nonrecoverable Advance and at the time of such
determination there exists an Outstanding Amount Advanced, then the Servicer
shall reimburse itself out of funds in the Certificate Account for the amount of
such Nonrecoverable Advance for the next succeeding Distribution Date by
withdrawing such amount pursuant to Section 5.03(v), but not in excess of such
Outstanding Amount Advanced. If a Contract becomes a Liquidated Contract and at
such time there exists an Outstanding Amount Advanced, then the Servicer shall
reimburse itself out of funds in the Certificate Account for the portion of
Monthly Advances equal to the aggregate of delinquent Scheduled Payments on such
Contract to the Due Date in the Collection Period in which such Contract became
a Liquidated Contract, but not in excess of such Outstanding Amount Advanced.
Notwithstanding any other provision of this Agreement, under no
-57-
circumstances shall the Servicer be required to make any advance that the
Servicer determines if made would be a Nonrecoverable Advance.
Section 5.02 Payments.
--------
(a) On each Distribution Date, the Trustee shall withdraw the Spread
Account Draw Amount from the Spread Account and shall withdraw from the
Certificate Account an amount equal to the sum of the Available Distribution
Amount, the Policy Claim Amount, if any, and with respect to distributions of
principal to the Class A-3 Certificates pursuant to clause (ii) below, the Class
A-3 Holdover Amount as of the immediately preceding Distribution Date, if any,
and apply such amounts, in the following order of priority:
(i) to the Class A-1 Certificateholders, the Class A-1
Interest Distribution Amount, to the Class A-2 Certificateholders, the Class A-2
Interest Distribution Amount, and to the Class A-3 Certificateholders, the Class
A-3 Interest Distribution Amount; provided that if the Available Distribution
--------
Amount, together with any Policy Claim Amount and Spread Account Draw Amount, is
insufficient to make the full distributions of interest referred to in this
clause (i), the Available Distribution Amount, together with any Policy Claim
Amount and Spread Account Draw Amount, shall be distributed on such Classes of
Certificates pro rata based on such full amounts allocable to such Classes;
(ii) to the Class A Certificateholders, the Formula Principal
Distribution Amount (less, with respect to the Class A-3 Certificateholders, the
Class A-3 Holdover Amount for such Distribution Date) in the following order of
priority:
(A) to the Class A-1 Certificateholders until the Class A-1
Certificate Balance is reduced to zero;
(B) to the Class A-2 Certificateholders, until the Class ▇-
▇ Certificate Balance is reduced to zero; and
(C) to the Class A-3 Certificateholders, until the Class ▇-
▇ Certificate Balance is reduced to zero;
(iii) to the Insurer, amounts owed to the Insurer pursuant to
the Insurance Agreement;
(iv) to the Spread Account, the Spread Account Deposit Amount
required to be deposited therein pursuant to the Insurance Agreement;
(v) to the Broker-Dealer, the Broker-Dealer Fee and certain
other amounts that may be required to be paid pursuant to the Broker-Dealer
Agreement;
(vi) to the Auction Agent, the Auction Agent Fee and certain
other amounts that may be required to be paid pursuant to the Auction Agent
Agreement;
(vii) to the Class R Certificateholders, any remaining Available
Distribution Amount.
-58-
In addition, notwithstanding the prioritization of the distribution of the
Formula Principal Distribution Amount to the Holders of the Class A Certificates
pursuant to clause (ii) above, on a Distribution Date, if any, in respect of
which a Deficiency Event is in effect, the portion of the Formula Principal
Distribution Amount for such Distribution Date that would otherwise be
distributed sequentially to the Class A-1, Class A-2 and Class A-3
Certificateholders pursuant to clause (ii) above will instead be distributed to
the Class A-1, Class A-2 and Class A-3 Certificateholders pro rata based upon
the Certificate Balance of each such Class immediately prior to such
Distribution Date until the Certificate Balances of the Class A-1, Class A-2 and
Class A-3 Certificates have been reduced to zero (but distributions among the
Class A-3 Certificates shall be made in accordance with the terms of Section
5.02(e) hereof).
Such distributions to the Class A-1 Certificateholders, Class A-2
Certificateholders and Class A-3 Certificateholders shall be made such that the
Trustee shall distribute (a) to each Class A-1 Certificateholder as of the
preceding Record Date an amount equal to the product of the aggregate Percentage
Interest evidenced by such Certificateholder's Class A-1 Certificates and the
Class A-1 Distribution Amount for such Distribution Date, (b) to each Class A-2
Certificateholder as of the preceding Record Date an amount equal to the product
of the aggregate Percentage Interest evidenced by such Certificateholder's Class
A-2 Certificates and the Class A-2 Distribution Amount for such Distribution
Date and (c) subject to Section 5.02(e) hereof with respect to payments of
principal, to each Class A-3 Certificateholder as of the preceding Record Date
an amount equal to the product of the aggregate Percentage Interest evidenced by
such Certificateholder's Class A-3 Certificates and the Class A-3 Distribution
Amount for such Distribution Date. The Trustee shall pay each Certificateholder
of record by check mailed to such Certificateholder at the address for such
Certificateholder appearing on the Certificate Register; provided that if such
--------
Certificateholder holds Certificates evidencing a Percentage Interest
aggregating 10% or more with respect to such Class and has given the Trustee
appropriate written instructions at least 10 days prior to the related
Distribution Date (which instructions, until revised, shall remain operative for
all Distribution Dates thereafter), the Trustee shall pay such Certificateholder
by wire transfer of funds. If on any Determination Date the Servicer determines
that there are no Contracts outstanding and no other funds or assets in the
Trust Fund other than the funds in the Certificate Account, the Servicer
promptly shall notify the Insurer, the Swap Counterparty, the Hedge Counterparty
and the Trustee and instruct the Trustee to send the final distribution notice
to each Certificateholder and make provision for the final distribution in
accordance with Section 10.01(c). Final payment of any Certificate shall be made
only upon presentation of such Certificate at the office or agency of the
Certificate Registrar.
(b) On each Distribution Date, the Trustee shall withdraw from the
Certificate Account (solely out of the Available Distribution Amount for such
Distribution Date after giving effect to the distributions made to the
Certificateholders pursuant to Section 5.02(a)(i)-(ii), to the Spread Account
pursuant to Section 5.02(a)(iii), to the Servicer pursuant to Section
5.02(a)(iv) and to the Auction Agent pursuant to Section 5.02(a)(v)) or to the
Class R Certificateholders, as applicable, by wire transfer of immediately
available funds. Such distribution shall be made by a means that is mutually
acceptable to the Trustee and the Class R Certificateholders.
(c) Each distribution with respect to a Global Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository
-59-
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Global Certificate are to be made by the Depository and the
Depository Participants in accordance with the provisions of the Certificates.
Neither the Trustee, the Certificate Registrar, the Contract Seller nor the
Servicer shall have any responsibility therefor. To the extent applicable and
not contrary to the rules of the Depository, the Trustee shall comply with the
provisions of the forms of the Certificates as set forth in Exhibit B-1, Exhibit
----------- -------
B-2, Exhibit B-3 and Exhibit C hereto.
---- ----------- ---------
(d) None of the Servicer, the Contract Seller, the Trustee, or,
except and only to the extent set forth in the Insurance Agreement, the Class R
Certificateholders shall have any right to any amounts on deposit in the Spread
Account.
(e) On each Distribution Date prior to the Class A-3 Pro Rata Date,
principal payments will be made to the Class A-3 Certificates only in amounts
equal to $25,000 and integral multiples in excess thereof. On each Distribution
Date, the Class A-3 Holdover Amount, if any, for such Distribution Date will be
retained in the Certificate Account. The amount being distributed to Holders of
the Class A-3 Certificates as principal will be allocated to the specific
Certificates of such Class which are selected prior to the related Distribution
Date by lot or such other manner as may be determined by the Depository, a
Depository Participant or the Trustee, which distributions, prior to the Class
A-3 Pro Rata Date, will be made only in allocations equal to $25,000 and
integral multiples of $25,000 in excess thereof. On each Distribution Date on
and after the Class A-3 Pro Rata Date, distributions will be made pro rata to
the Holders of the Class A-3 Certificates pursuant to Section 5.02(a) based on
their respective Percentage Interests. Any amounts on deposit in the Certificate
Account representing the Class A-3 Holdover Amount shall only be applied to
payments of principal on the Class A-3 Certificates until the Certificate
Balance of the Class A-3 Certificates has been reduced to zero.
Section 5.03 Permitted Withdrawals from the Certificate Account.
--------------------------------------------------
(a) The Servicer may, from time to time as provided herein, make
withdrawals from the Certificate Account of amounts deposited therein pursuant
to Section 4.05 that are attributable to the Contracts for the following
purposes:
(i) to pay to the Contract Seller with respect to each
Contract sold by it or property acquired in respect thereof that has been
repurchased or replaced pursuant to Section 3.05, all amounts received thereon
that are specified in such Section to be property of the Contract Seller;
(ii) to reimburse itself for the payment of taxes or charges
out of Liquidation Proceeds (to the extent not previously retained from such
Liquidation Proceeds prior to their deposit) or out of payments expressly made
by the related Obligor to reimburse the Servicer for such taxes or charges, as
permitted by Section 4.06;
-60-
(iii) to pay to itself the Monthly Servicing Fee and Servicer
Deficiency Amounts and Repossession Profits, if any;
(iv) to reimburse itself or a previous Servicer out of
Liquidation Proceeds (to the extent not previously retained from Liquidation
Proceeds prior to their deposit in the Certificate Account) in respect of a
Manufactured Home and out of payments by the related Obligor (to the extent of
payments expressly made by the Obligor to reimburse the Servicer for insurance
premiums) for expenses incurred by it in respect of such Manufactured Home that
are specified in this Agreement as being reimbursable to it or to a previous
Servicer;
(v) to reimburse itself for any Nonrecoverable Advances and
for Monthly Advances in respect of Liquidated Contracts;
(vi) after the Class A-1 Certificate Balance, the Class A-2
Certificate Balance and the Class A-3 Certificate Balance have been reduced to
zero, all amounts owing to the Spread Account have been deposited and all
amounts owing to the Insurer have been reimbursed, to reimburse the Servicer and
the REMIC Administrator, pro rata, for expenses incurred and reimbursable to the
Servicer pursuant to Section 7.05 and to the REMIC Administrator pursuant to
Section 4.17(c); and
(vii) to withdraw any amount deposited in the Certificate
Account that was not required to be deposited therein (including any collections
on the Contracts that, pursuant to Section 2.01(a), are not part of the Trust
Fund and amounts permitted to be withdrawn pursuant to Section 11.12(ii)
hereof)).
Since, in connection with withdrawals pursuant to clauses (i), (ii) and
(iv) of this Section 5.03, the Servicer's entitlement thereto is limited to
collections or other recoveries on the related Contract, the Servicer shall keep
and maintain separate accounting, on a Contract by Contract basis, for the
purpose of justifying any withdrawal from the Certificate Account pursuant to
such clauses.
(b) The Trustee may, from time to time as provided herein, make
withdrawals from the Certificate Account of amounts deposited therein pursuant
to Section 4.05 that are attributable to the Contracts for the following
purposes:
(i) to make payments to the Swap Counterparty as required
pursuant to the Swap; and
(ii) to make payments to the Hedge Counterparty as required
pursuant to the Hedge Agreement.
The foregoing withdrawals from the Certificate Account may be prior to the
distribution of any amounts to the Certificateholders on any Distribution Date.
All payments to the Hedge Counterparty shall be first in priority of payment.
-61-
Section 5.04 Monthly Reports.
---------------
At least two Business Days prior to each Distribution Date, the Servicer
shall cause the Trustee, the Insurer, the Rating Agencies, the Contract Seller,
the Swap Counterparty, the Hedge Counterparty and the Certificate Administrator
to receive a Monthly Report, which report shall include the following
information with respect to the immediately following Distribution Date:
(a) the Class A-1 Distribution Amount for such Distribution Date;
(b) the amount of principal to be distributed to the Class A-1
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (f), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(c) the amount of interest to be distributed to Class A-1
Certificateholders on such Distribution Date (separately identifying any Class
A-1 Unpaid Interest Shortfall included in such distribution);
(d) the remaining Class A-1 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(e) the Class A-2 Distribution Amount for such Distribution Date;
(f) the amount of principal to be distributed to the Class A-2
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (f), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(g) the amount of interest to be distributed to Class A-2
Certificateholders on such Distribution Date (separately identifying any Class
A-2 Unpaid Interest Shortfall included in such distribution);
(h) the remaining Class A-2 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(i) the Class A-3 Distribution Amount for such Distribution Date;
(j) the amount of principal to be distributed to the Class A-3
Certificateholders, separately stating the contribution thereto from each of the
amounts specified in clauses (a) through (f), inclusive, of the definition of
Total Regular Principal Amount and from the amount of clause (b) of the
definition of Formula Principal Distribution Amount;
(k) the amount of interest to be distributed to Class A-3
Certificateholders on such Distribution Date (separately identifying any Class
A-3 Unpaid Interest Shortfall included in such distribution);
-62-
(l) the remaining Class A-3 Certificate Balance after giving effect
to the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(m) the Class A-1 Pass-Through Rate, the Class A-2 Pass-Through Rate,
the Class A-3 Pass-Through Rate and the Class A-3 Holdover Amount for such
Distribution Date;
(n) the Monthly Servicing Fee payable on such Distribution Date, the
aggregate amount of any Monthly Servicing Fees remaining unpaid as of such
Distribution Date, the amount of any reimbursement to the Servicer pursuant to
Section 7.05, and any Late Payment Fees, Extension Fees and assumption fees paid
during the prior Collection Period, and the amount of any other fees payable out
of the Trust Fund;
(o) the existence of any Servicer Termination Event;
(p) the number of and aggregate remaining principal balance of
Contracts with payments delinquent 31 to 59, 60 to 89, and 90 or more days,
respectively;
(q) the number of Contracts that were repurchased or replaced by the
Contract Seller in accordance with Section 3.05 during the prior Collection
Period, identifying such Contracts and (i) the Repurchase Price of such
Contracts and (ii) the amount, if any, paid by the Contract Seller due to the
differences, if any, between the remaining principal balances of the replaced
Contracts and the Eligible Substitute Contracts;
(r) the aggregate principal balances of all Contracts that are not
Liquidated Contracts and in respect of which the related Manufactured Homes have
been repossessed or foreclosed upon;
(s) the Policy Claim Amount, if any, on such Distribution Date;
(t) the amount of any Monthly Advance and the Outstanding Amount
Advanced with respect to such Distribution Date;
(u) the amounts, if any, deposited into the Spread Account for such
Distribution Date;
(v) the amount, if any, to be distributed to the Class R
Certificateholders;
(w) the number of Manufactured Homes currently held by the Servicer
due to repossessions and the aggregate principal balance of the related
defaulted Contracts;
(x) the Pool Principal Balance, expressed as a percentage of the Cut-
Off Date Pool Principal Balance;
(y) the aggregate of the Deficiency Amounts and Servicer Deficiency
Amounts received for the preceding Collection Period;
-63-
(z) any additional items required to be set forth in the Monthly
Report pursuant to the Insurance Agreement;
(aa) the Swap Amount under the Swap, if any, on such Distribution
Date, amounts owed to the Swap Counterparty for reimbursement of previous
payments under the Swap and whether the Swap Counterparty has been replaced,
modified or cancelled; and
(bb) the amount received by the Trust Fund or the Trustee from the
Hedge Counterparty pursuant to the Hedge Agreement for such Distribution Date
and the amount paid to the Hedge Counterparty by the Trust Fund or the Trustee
pursuant to the Hedge Agreement for such Distribution Date.
Copies of all Monthly Reports shall be provided by the Servicer to each
Rating Agency. Neither the Trustee nor the Certificate Administrator shall be
under any duty to recalculate or verify the information provided to it by the
Servicer. The Servicer shall deliver a written notice to the Trustee not later
than three Business Days next preceding a Distribution Date if it cannot provide
the Trustee and the Certificate Administrator with a Monthly Report for such
Distribution Date. In addition, if the Servicer receives a notice from the Swap
Counterparty to the effect that the rating of the Swap Counterparty by either
Rating Agency has been reduced, suspended or withdrawn, the Servicer will notify
the Trustee, the Insurer and each Rating Agency of its receipt of such notice
within two Business Days of receipt thereof.
Section 5.05 Certificate of Servicing Officer.
--------------------------------
Each Monthly Report pursuant to Section 5.04 shall be accompanied by a
certificate of a Servicing Officer substantially in the form of Exhibit F,
---------
certifying the accuracy of the Monthly Report and that such officer is not aware
of the occurrence of an Event of Default or of an event that, with notice or
lapse of time or both, would become an Event of Default, or if such officer is
aware that such an event has occurred and is continuing, specifying the event
and its status.
Section 5.06 Other Data.
----------
In addition, the Servicer, at the request of the Trustee or the Certificate
Administrator, shall furnish the Trustee or the Certificate Administrator (as
the case may be) such underlying data as may reasonably be requested.
Section 5.07 Statements to Certificateholders.
--------------------------------
Concurrently with each distribution to Certificateholders pursuant to this
Article V, the Trustee shall mail, or cause the Paying Agent to mail, to each
Certificateholder at the address appearing on the Certificate Register the
Monthly Report prepared by the Servicer together with the following information
prepared by the Servicer:
(1) the amount of fees and expenses payable out of the Trust Fund for
such Collection Period;
-64-
(2) the percentage obtained by dividing the aggregate Certificate
Balances with respect to each Class (after giving effect to the distributions on
the Certificates made on such Distribution Date) by the aggregate Initial
Certificate Balances with respect to each Class;
(3) such other customary factual information as is available to the
Servicer as the Servicer deems necessary and can obtain reasonably from its
existing data base to enable Certificateholders to prepare their tax returns.
In the case of information furnished with respect to a dollar amount, the
amounts shall be expressed as a dollar amount per Certificate with a $1,000
denomination.
Within a reasonable period of time after the end of each calendar year,
subject to the next sentence, but in no event later than 90 days after the end
of such year, the Servicer shall prepare and furnish to the Trustee, the
Insurer, the Paying Agent and the Certificate Administrator, and the Trustee,
promptly upon receipt, shall furnish or cause the Paying Agent to furnish to
each Person who at any time during the calendar year was the Holder of a
Certificate, a statement containing the information set forth in clauses (b) and
(c) of Section 5.04, in the case of Class A-1 Certificateholders , (f) and (g)
of Section 5.04, in the case of Class A-2 Certificateholders and (i) and (j) of
Section 5.04, in the case of Class A-3 Certificateholders, aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Servicer pursuant to any requirements of the Code as from time
to time in force. On each Distribution Date, the Servicer shall forward or
cause to be forwarded by mail to each Holder of a Class R Certificate, a copy of
the Monthly Report for such Distribution Date. The Servicer shall also forward
or cause to be forwarded by mail to each Holder of a Class R Certificate, a
statement setting forth such information as the Servicer deems necessary or
appropriate.
Within a reasonable period of time after the end of each calendar year, the
Servicer shall furnish or cause to be furnished to each Person who at any time
during the calendar year was a Holder of a Class R Certificate a statement
containing the applicable distribution information provided pursuant to this
Section 5.07 aggregated for such calendar year or applicable portion thereof
during which such Person was a Holder of a Class R Certificate. Such obligation
of the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer pursuant
to any requirements of the Code. A Certificate Owner holding Certificates of a
Class representing in the aggregate at least 5% of the Percentage Interests of
such Class shall, upon written request to the Trustee certifying its beneficial
ownership of such Certificates, be entitled to receive copies of all reports
provided by the Trustee. Copies of all reports provided by the Trustee to the
Certificateholders shall also be provided to each Rating Agency and the Insurer.
Section 5.08 Certificate Insurance Policy; Preference Claims; Surrender
----------------------------------------------------------
of Policy.
---------
(a) Claims Under Certificate Insurance Policy.
-----------------------------------------
(i) In the event that the Trustee has received a Monthly
Report that shows a Policy Claim Amount with respect to any Distribution Date,
then in such event the
-65-
Trustee shall furnish to the Insurer no later than 12:00 noon New York City
time, no later than four Business Days (as defined in the Certificate Insurance
Policy) prior to the related Distribution Date, a completed Notice of Claim in
the amount of the Policy Claim Amount. Amounts paid by the Insurer under the
Certificate Insurance Policy shall be deposited by the Trustee into the
Certificate Account for payment to Certificateholders on the related
Distribution Date (or promptly following payment on a later date as set forth in
the Certificate Insurance Policy).
(ii) In accordance with the provisions of the Certificate
Insurance Policy, the Insurer is required to pay to the Trustee the Policy Claim
Amount properly claimed thereunder by 12:00 noon, New York City time, on the
later of (1) the third Business Day (as defined in the Certificate Insurance
Policy) following receipt on a Business Day (as defined in the Certificate
Insurance Policy) of the Notice of Claim, and (2) the applicable Distribution
Date. Any payment made by the Insurer under the Certificate Insurance Policy
shall be applied solely to the payment of the Certificates, and for no other
purpose.
(iii) The Trustee shall (1) receive as attorney-in-fact of
each Certificateholder any Policy Claim Amount from the Insurer and (2) deposit
the same in the Certificate Account for disbursement to the Certificateholders
as set forth in Section 5.02(a) hereof. Any and all Policy Claim Amounts
disbursed by the Trustee from claims made under the Certificate Insurance Policy
shall not be considered a payment from the Available Distribution Amount or from
the Spread Account, and shall not discharge the obligations of the Trust Fund to
reimburse the Insurer pursuant to Section 5.02(a)(iii) hereof. Subject to and
conditioned upon any payment with respect to the Certificates by or on behalf of
the Insurer, each Certificateholder shall be deemed, without further action, to
have directed the Trustee to assign to the Insurer all rights to the payment of
interest or principal with respect to the Certificates which are then due for
payment to the extent of all payments made by the Insurer and the Insurer may
exercise any option, vote, right, power or the like with respect to the
Certificates to the extent that it has made payment pursuant to the Certificate
Insurance Policy. To evidence such subrogation, the Trustee shall note the
Insurer's rights as subrogee upon the register of Certificateholders upon
receipt from the Insurer of proof of payment by the Insurer of any Class A-1
Interest Distribution Amount, Class A-2 Interest Distribution Amount, Class A-3
Interest Distribution Amount or Formula Principal Distribution Amount.
(iv) The Trustee shall be entitled to enforce on behalf
of the Certificateholders the obligations of the Insurer under the Certificate
Insurance Policy. Notwithstanding any other provision of this Agreement, the
Certificateholders are not entitled to institute proceedings directly against
the Insurer.
(b) Preference Claims.
-----------------
(i) In the event that the Trustee has received a certified
copy of a final, non-appealable order of the appropriate court that any
Guaranteed Distributions paid on a Certificate has been avoided in whole or in
part as a preference payment under applicable bankruptcy law, the Trustee shall
so notify the Insurer, shall comply with the provisions of the Certificate
Insurance Policy to obtain payment by the Insurer of such avoided payment, and
shall, at the time it provides notice to the Insurer, comply with the provisions
of the Certificate
-66-
Insurance Policy to obtain payment by the Insurer, and notify Certificateholders
by mail that, in the event that any Certificateholder's payment is so
recoverable, such Certificateholder will be entitled to payment pursuant to the
terms of the Certificate Insurance Policy. The Trustee shall furnish to the
Insurer its records evidencing the payments of principal and interest on
Certificates, if any, which have been made by the Trustee and subsequently
recovered from Certificateholders, and the dates on which such payments were
made. Pursuant to the terms of the Certificate Insurance Policy, the Insurer
will make such payment on behalf of the Certificateholder to the receiver,
conservator, debtor-in-possession or trustee in bankruptcy named in the Final
Order and not to the Trustee or any Certificateholder directly (unless a
Certificateholder has previously paid such payment to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy, in which case the Insurer will
make such payment to the Trustee for payment to such Certificateholder upon
proof of such payment reasonably satisfactory to the Insurer).
(ii) Each Notice of Claim shall provide that the Trustee,
on its behalf and on behalf of the Certificateholders, thereby appoints the
Insurer as agent and attorney-in-fact for the Trustee and each Certificateholder
in any legal proceeding with respect to the Certificates. The Trustee shall
promptly notify the Insurer of any Preference Claim. Each Holder of
Certificates, by its purchase of Certificates, and the Trustee hereby agree that
so long as an Insurer Default shall not have occurred and be continuing, the
Insurer may at any time during the continuation of any proceeding relating to a
Preference Claim direct all matters relating to such Preference Claim including,
without limitation, (1) the direction of any appeal of any order relating to any
Preference Claim and (2) the posting of any surety, supersedeas or performance
bond pending any such appeal at the expense of the Insurer, but subject to
reimbursement as provided in the Insurance Agreement. In addition, and without
limitation of the foregoing, as set forth in Section 5.08(a)(iii) hereof, the
Insurer shall be subrogated to, and each Certificateholder and the Trustee
hereby delegate and assign, to the fullest extent permitted by law, the rights
of the Trustee and each Certificateholder in the conduct of any proceeding with
respect to a Preference Claim, including, without limitation, all rights of any
party to an adversary proceeding or action with respect to any court order
issued in connection with any such Preference Claim.
(c) Rights of Subrogation; No Discharge. The Insurer shall, to
-----------------------------------
the extent it makes any payment of principal or interest on the Certificates,
become subrogated to the rights of the recipients of such payments in accordance
with the terms of the Certificate Insurance Policy. The Trust Fund shall not be
discharged from its obligations hereunder upon payment of principal of and
interest on the Certificates by the Insurer under the Certificate Insurance
Policy.
(d) Surrender of Policy. The Trustee shall surrender the
-------------------
Certificate Insurance Policy to the Insurer for cancellation upon the expiration
of such policy in accordance with the terms thereof.
Section 5.09 Swap; Swap Amounts.
------------------
(a) The parties hereto acknowledge that the Swap Counterparty
has provided the Swap to provide the Class A Certificateholders and the Insurer
with a source of funds to enhance the likelihood of the receipt by such
Certificateholders and the Insurer on each
-67-
Distribution Date of the aggregate amount distributable pursuant to Section
5.02(a)(i) and (ii) hereof with respect to such Distribution Date.
(b) Pursuant to the terms of the Swap, the Swap Counterparty
shall deposit into the Certificate Account all Swap Amounts and shall deposit
into the Spread Account all Settlement Amounts.
(c) The Insurer and the Swap Counterparty may, without the
consent of the Trustee, the Contract Seller, the Servicer or the
Certificateholders, substitute or replace all or a portion of the Swap with
another Swap or any other form of credit enhancement, change the terms of the
Swap or cancel the Swap upon written notice to the Trustee. Nothing in this
provision shall be deemed to constitute consent by the Insurer, whose consent
shall be at its sole and absolute discretion and which must be granted in
writing at the time of the substitution, replacement, change or cancellation.
Upon such written notice, the Trustee will cooperate with the Insurer and the
Swap Counterparty in accordance with the written instructions on which it may
conclusively rely.
(d) The Trustee agrees that it shall consent to any amendment,
modification or termination of the Swap Agreement at the mutual request of the
Insurer and the Swap Counterparty.
Section 5.10 Hedge Agreement
---------------
(a) The parties hereto acknowledge that the Trustee has entered
into the Hedge Agreement on behalf of the Trust Fund with the Hedge Counterparty
for the benefit of the Insurer and the Class A Certificateholders, to enhance
the likelihood that the Certificateholders will receive on each Distribution
Date, the aggregate amount distributable pursuant to Section 5.02(a)(i) hereof.
(b) On the fourth Business Day prior to each Distribution Date,
either (1) the Trustee will withdraw from funds on deposit in the Certificate
Account the net amount due to the Hedge Counterparty under the Hedge Agreement
(including termination payments, if any); or (2) the Hedge Counterparty will pay
to the Trustee for deposit into the Certificate Account the net amount due to
the Trust Fund under the Hedge Agreement (including termination payments, if
any).
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.
----------------
The Certificates shall be substantially in the forms attached hereto as
Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit C and Exhibit D. The Class A
----------- ----------- ----------- --------- ---------
Certificates shall be issuable in registered form, in the minimum dollar
denominations, integral dollar multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum dollar denomination) and aggregate dollar
denominations per Class as set forth in the following table:
-68-
Integral
Multiples in
Minimum Excess of Latest Scheduled Initial Certificate
Class Denomination Minimum Distribution Date Balance
----------- --------------- --------------- --------------------- -----------------------
A-1 $50,000 $ 1 November 2010 $37,000,000
A-2 $50,000 $ 1 September 2023 $93,000,000
A-3 $25,000 $25,000 November 2031 $60,000,000
The Class R Certificate shall initially be issued with no principal
balance.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. 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 bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such authentication and delivery. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form set forth as attached hereto executed
by the Trustee by manual signature, and such certificate of authentication upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Trustee shall authenticate the Certificates to be issued at the
written direction of the Contract Seller.
The Servicer shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate transfers.
Section 6.02 Certificate Register; Registration of Transfer and Exchange
-----------------------------------------------------------
of Certificates.
--------------
(a) The Trustee shall maintain, or cause to be maintained, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Certificate, the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or
-69-
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder thereof or his attorney
duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but 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 may be required.
All Certificates surrendered for registration of transfer or exchange shall
be canceled and subsequently destroyed by the Trustee in accordance with the
Trustee's customary procedures.
(b) No transfer of an ERISA Restricted Certificate will be made
unless the Trustee has received either (i) an Opinion of Counsel, at no expense
to the Trustee, the Contract Seller, the Insurer, the Swap Counterparty or the
Servicer, acceptable to and in form and substance satisfactory to the Trustee,
the Contract Seller and the Servicer with respect to the permissibility of such
transfer under ERISA and Section 4975 of the Code and stating, among other
things, that the transferee's acquisition of such ERISA Restricted Certificate
will not constitute or result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code and will not subject the
Servicer, the Contract Seller or the Trustee to any obligation or liability in
addition to those undertaken in this Agreement or (ii) a representation letter
from the transferee, substantially in the form of paragraph 5 of Exhibit G. No
transfer of an ERISA Restricted Certificate will be made without the consent of
the Insurer and without notification to the Rating Agencies. Notwithstanding the
foregoing, an Opinion of Counsel or representation letter will not be required
with respect to the transfer of an ERISA Restricted Certificate to a Depository,
or for any subsequent transfer of any interest in an ERISA Restricted
Certificate for so long as such Certificate is held as a Book-Entry Certificate.
Any transferee of an ERISA Restricted Certificate that is a Book-Entry
Certificate will be deemed to have represented by virtue of its purchase or
holding of such Book-Entry Certificate (or interest therein) that such
transferee is not a Plan Investor. If any ERISA Restricted Certificate (or any
interest therein) is acquired or held in violation of the preceding sentence,
then the last preceding transferee that is not a Plan Investor shall be
restored, to the extent permitted by law, to all rights and obligations as
certificate owner thereof retroactive to the date of such transfer of such ERISA
Restricted Certificate. The Trustee shall be under no liability to any Person
for making payments due on such Certificate to such preceding transferee.
(c) (i) Each Person who has or who acquires any Ownership
Interest in a Class R Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Servicer and the
Trustee or its designee under clause (iii)(A) below to deliver payments to a
Person other than such Person and to negotiate the terms of any mandatory sale
under clause (iii)(B) below and to execute all instruments of transfer and to do
all other things necessary in connection with any such sale. The rights of each
Person acquiring any Ownership Interest in a Class R Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
-70-
(B) In connection with any proposed Transfer of any
Ownership Interest in a Class R Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of any Class R Certificate until its
receipt of, (I) an affidavit in the form attached hereto as Exhibit G-1 (a
"Transfer Affidavit") from the proposed Transferee, representing and warranting,
among other things, that it is a Permitted Transferee, that it is not acquiring
its Ownership Interest in the Class R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person who is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in a
Class R Certificate, it will endeavor to remain a Permitted Transferee, and that
it has reviewed the provisions of this Section 6.02(c) and agrees to be bound by
them, and (II) a certificate, in the form attached hereto as Exhibit G-2, from
the Holder wishing to transfer the Class R Certificate, representing and
warranting, among other things, that no purpose of the proposed Transfer is to
impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer
Affidavit by a proposed Transferee under clause (B) above, if a Responsible
Officer of the Trustee who is assigned to this Agreement has actual knowledge
that the proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (x) to require a Transfer
Affidavit from any other Person to whom such Person attempts to transfer its
Ownership Interest in a Class R Certificate and (y) not to transfer its
Ownership Interest unless it provides a certificate to the Trustee in the form
attached hereto as Exhibit G-2.
(E) Each Person holding or acquiring an Ownership
Interest in a Class R Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a "pass-
through interest holder" within the meaning of Temporary Treasury Regulations
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in
a Class R Certificate, if it is, or is holding an Ownership Interest in a Class
R Certificate on behalf of, a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class
R Certificate only if it shall have received the Transfer Affidavit and a
certificate of the Holder requesting such transfer in the form attached hereto
as Exhibit G-2. Transfers of the Class R Certificates to Non-United States
Persons and Disqualified Organizations (as defined in Section 860E(e)(5) of the
Code) are prohibited.
(iii) (A) If any Disqualified Organization shall become a
holder of a Class R Certificate, then the last preceding Permitted Transferee
shall be restored, to the extent permitted by law, to all rights and obligations
as Holder thereof retroactive to the date of registration of such Transfer of
such Class R Certificate. If a Non-United States Person shall become a holder of
a Class R Certificate, then the last preceding United States Person shall be
restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such transfer of such
Class R Certificate. If a transfer of a Class R Certificate is disregarded
pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section
1.860G-3, then the last preceding Permitted Transferee shall be restored, to the
extent
-71-
permitted by law, to all rights and obligations as Holder thereof retroactive to
the date of registration of such Transfer of such Class R Certificate. The
Trustee shall be under no liability to any Person for any registration of
Transfer of a Class R Certificate that is in fact not permitted by this Section
6.02(c) or for making any payments due on such Certificate to the holder thereof
or for taking any other action with respect to such holder under the provisions
of this Agreement.
(B) If any purported Transferee shall become a
Holder of a Class R Certificate in violation of the restrictions in this Section
6.02(c) and to the extent that the retroactive restoration of the rights of the
Holder of such Class R Certificate as described in clause (iii)(A) above shall
be invalid, illegal or unenforceable, then the Servicer shall have the right,
without notice to the holder or any prior holder of such Class R Certificate, to
sell such Class R Certificate to a purchaser selected by the Servicer on such
terms as the Servicer may choose. Such purported Transferee shall promptly
endorse and deliver each Class R Certificate in accordance with the instructions
of the Servicer. Such purchaser may be the Servicer itself or any Affiliate of
the Servicer. The proceeds of such sale, net of the commissions (which may
include commissions payable to the Servicer or its Affiliates), expenses and
taxes due, if any, will be remitted by the Servicer to such purported
Transferee. The terms and conditions of any sale under this clause (iii)(B)
shall be determined in the sole discretion of the Servicer, and the Servicer
shall not be liable to any Person having an Ownership Interest in a Class R
Certificate as a result of its exercise of such discretion.
(iv) The Servicer, on behalf of the Trustee, shall use
its reasonable efforts to make available, upon written request from the Trustee,
all information necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Class R Certificate to any Person who is
a Disqualified Organization, including the information regarding "excess
inclusions" of such Class R Certificates required to be provided to the Internal
Revenue Service and certain Persons as described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Class R Certificate having as among its
record holders at any time any Person who is a Disqualified Organization.
Reasonable compensation for providing such information may be required by the
Servicer from such Person.
(v) The provisions of this Section 6.02(c) set forth
prior to this clause (v) may be modified, added to or eliminated pursuant to
Section 11.01, provided that there shall have also been delivered to the Trustee
the following:
(A) written notification from each Rating Agency to
the effect that the modification, addition to or elimination of such provisions
will not cause such Rating Agency to downgrade its then-current ratings, if any,
of any Class of the Regular Certificates below the lower of the then-current
rating or the rating assigned to such Certificates as of the Closing Date by
such Rating Agency; and
(B) a certificate of the Servicer stating that the
Servicer has received an Opinion of Counsel, in form and substance satisfactory
to the Servicer, to the effect that such modification, addition to or absence of
such provisions will not cause Trust Fund to cease to qualify as a REMIC and
will not cause (x) the Trust Fund to be subject to an entity-level
-72-
tax caused by the Transfer of any Class R Certificate to a Person that is a
Disqualified Organization or (y) a Certificateholder or another Person to be
subject to a REMIC-related tax caused by the Transfer of a Class R Certificate
to a Person that is not a Permitted Transferee.
(d) The preparation and delivery of all certificates and
opinions referred to above in this Section 6.02 shall not be an expense of the
Trust Fund, the Trustee, the Contract Seller or the Servicer.
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and of the ownership thereof and (b) there is delivered to
the Trustee and the Certificate Administrator, if any, such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee that such Certificate has been acquired by a
protected purchaser, the Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like Class, tenor and Percentage Interest. In
connection with the issuance of any new Certificate under this Section 6.03, 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 (including the fees and expenses of the Trustee) connected therewith.
Any replacement Certificate issued pursuant to this Section 6.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. All Certificates surrendered to the Trustee under
the terms of this Section 6.03 shall be canceled and destroyed by the Trustee in
accordance with its standard procedures without liability on its part.
Section 6.04 Persons Deemed Owners.
---------------------
The Servicer, the Trustee and any agent of the Servicer or the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Servicer, the
Trustee nor any agent of the Servicer or the Trustee shall be affected by any
notice to the contrary.
Section 6.05 Access to List of Certificateholders' Names and Addresses.
---------------------------------------------------------
If three or more Certificateholders (a) request such information in writing
from the Trustee, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, and (c) provide a copy of the communication that such
Certificateholders propose to transmit or if the Contract Seller or Servicer
shall request such information in writing from the Trustee, then the Trustee
shall, within ten Business Days after the receipt of such request, provide the
Contract Seller, the Servicer or such Certificateholders at such recipients'
expense the most recent list of the Certificateholders of the Trust Fund held by
the Trustee, if any. The Contract Seller and every Certificateholder, by
receiving and holding a Certificate, agree that the Trustee shall not be
-73-
held accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
Section 6.06 Global Certificates.
-------------------
The Regular Certificates, upon original issuance, shall be issued in the
form of one or more typewritten Certificates representing the Global
Certificates, to be delivered to the Depository by or on behalf of the Contract
Seller. Such Global Certificates shall initially be registered on the
Certificate Register in the name of the Depository or its nominee, and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in such Certificates, except as provided in Section
6.08. Unless and until definitive, fully registered Certificates ("Definitive
Certificates") have been issued to the Certificate Owners of such Certificates
pursuant to Section 6.08:
(a) the provisions of this Section shall be in full force and
effect;
(b) the Contract Seller, the Servicer and the Trustee may treat
the Depository and the Depository Participants for all purposes as the
authorized representative of the respective Certificate Owners of such
Certificates and, in the case of distributions, may treat the Depository as the
authorized representative of the Depository Participants and the Certificate
Owners;
(c) registration of the Global Certificates may not be
transferred by the Trustee except to another Depository;
(d) the rights of the respective Certificate Owners of such
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of such Certificates and the Depository and/or the Depository
Participants. Pursuant to the Depository Agreement, unless and until Definitive
Certificates are issued with respect to the Class A Certificates pursuant to
Section 6.08, the Depository will make book-entry transfers among the Depository
Participants and receive and transmit distributions of principal and interest on
the related Certificates to such Depository Participants;
(e) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants; and
(g) to the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this Section
shall control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the Certificate Balance of a Class of
Certificates, such direction or consent may be given by Certificate Owners
(acting through the Depository and the Depository Participants) owning Global
Certificates evidencing the requisite percentage of the Certificate Balance or
the requisite Percentage Interests.
-74-
Section 6.07 Notices to Depository.
---------------------
Whenever any notice or other communication is required to be given to
Certificateholders of any Class with respect to which Global Certificates have
been issued, unless and until Definitive Certificates shall have been issued to
the related Certificate Owners, the Trustee shall give all such notices and
communications to the Depository.
Section 6.08 Definitive Certificates.
-----------------------
If, after Global Certificates have been issued with respect to the Class A
Certificates, (a) the Servicer advises the Trustee that the Depository is no
longer willing or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Certificates and the Trustee or the
Servicer is unable to locate a qualified successor, (b) the Servicer, at its
sole option, advises the Trustee that it elects to terminate the book-entry
system with respect to such Certificates through the Depository or (c) after the
occurrence and continuation of an Event of Default, Certificate Owners of such
Global Certificates having not less than 51% of the Voting Rights evidenced by
the related Class advise the Trustee and the Depository in writing through the
Depository Participants that the continuation of a book-entry system with
respect to such Certificates through the Depository (or its successor) is no
longer in the best interests of the Certificate Owners with respect to such
Certificates, then the Trustee shall notify all Certificate Owners of such Class
of Certificates, through the Depository, of the occurrence of any such event and
of the availability of Definitive Certificates for such Class to Certificate
Owners requesting the same. The Servicer shall provide the Trustee with an
adequate inventory of certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon surrender to the Trustee of any such Certificates
by the Depository, accompanied by registration instructions from the Depository
for registration, the Trustee shall authenticate and deliver such Definitive
Certificates. Neither the Contract Seller, the Servicer nor the Trustee shall be
liable for any delay in delivery of such instructions and each may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of such 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 such
Definitive Certificates as Certificateholders hereunder.
ARTICLE VII
THE CONTRACT SELLER AND THE SERVICER
Section 7.01 Liabilities to Obligors.
-----------------------
No liability to any Obligor under any of the Contracts arising out of any
act or omission to act of the Servicer in servicing the Contracts prior to the
Closing Date is intended to be assumed by the Contract Seller, the Trustee, the
Certificate Administrator or the Certificateholders under or as a result of this
Agreement and the transactions contemplated hereby and, to the maximum extent
permitted and valid under mandatory provisions of law, the Contract Seller, the
Trustee, the Certificate Administrator and the Certificateholders expressly
disclaim such assumption.
-75-
Section 7.02 Servicer's Indemnities.
----------------------
The Servicer shall defend and indemnify the Trust Fund, the Trustee, the
Insurer, the Certificate Administrator, the Certificate Registrar, the Paying
Agent, the Contract Seller and the Certificateholders against any and all costs,
expenses, losses, damages, claims or liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, arising from third party claims
or actions (including penalties or fees imposed by any governmental or
regulatory body or agency) in respect of any action taken by the Servicer with
respect to any Contract or Manufactured Home constituting a failure by the
Servicer to perform its obligations under this Agreement. This indemnity shall
survive any Event of Default (but a Servicer's obligations under this Section
7.02 shall not relate to any actions of any subsequent Servicer after an Event
of Default) and any payment of the amount owing under, or any repurchase by the
Contract Seller of, any such Contract.
Section 7.03 Operation of Indemnities.
------------------------
Indemnification under this Article VII shall include reasonable fees and
expenses of counsel and expenses of litigation. Any amounts received by the
Trustee from the Servicer pursuant to this Article VII shall be deposited in the
Certificate Account pursuant to Section 4.05. If the Servicer has made any
indemnity payments to the Trustee pursuant to this Article VII and the Trustee
thereafter collects any of such amounts from others, the Trustee will repay such
amounts collected to the Servicer, together with any interest collected thereon.
Section 7.04 Merger or Consolidation of the Contract Seller or the
-----------------------------------------------------
Servicer.
--------
The Contract Seller and the Servicer will each keep in full effect their
existence, rights and franchises as a Delaware limited liability company, and
will obtain and preserve its qualification to do business as a foreign limited
liability company in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Contracts and to perform its duties under this
Agreement.
Any Person into which the Contract Seller or the Servicer may be merged or
consolidated, or any corporation or association resulting from any merger,
conversion or consolidation to which the Contract Seller or the Servicer shall
be a party, or any Person succeeding to the business of the Contract Seller or
the Servicer, shall be the successor of the Contract Seller or the Servicer
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
-------- -------
the Servicer shall satisfy the requirements of Section 7.07 with respect to the
qualifications of a successor to the Servicer. The Contract Seller and the
Servicer shall each promptly notify each Rating Agency and the Insurer of any
such merger to which it is a party.
The conversion of GreenPoint's organizational structure from a Delaware
limited liability company to a corporation, partnership or other entity shall
not require the consent of any party or notice to any party and shall not in any
way affect the rights or obligations of GreenPoint as Contract Seller or
Servicer hereunder, provided, however, that if any such corporation,
-------- -------
-76-
partnership or other entity is organized under the laws of a state other than
the State of Delaware, GreenPoint shall have taken all steps, as evidenced by an
Opinion of Counsel, to maintain the perfection of the Trustee in the Contracts.
Section 7.05 Limitation on Liability of the Contract Seller, the
---------------------------------------------------
Servicer and Others.
-------------------
None of the Contract Seller, the Servicer or any of their members,
shareholders, directors, officers, employees or agents shall be under any
liability to the Trustee or the Certificateholders for any errors in judgment or
any action taken or for refraining from the taking of any action, pursuant to
this Agreement; provided, however, that this provision shall not protect the
-------- -------
Contract Seller or any such Person against any liability that would otherwise be
imposed by reason of its willful misconduct, or gross negligence; provided,
--------
further that this provision shall not protect the Servicer or any such Person
-------
against any liability that would otherwise be imposed by reason of its willful
misconduct or gross negligence. The Contract Seller, the Servicer and any of
their members, shareholders, directors, officers, employees or agents may rely
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. Neither of the Contract Seller
or the Servicer shall be under any obligation to appear in, prosecute or defend
any legal action which arises under this Agreement (other than in connection
with the enforcement by the Servicer of any Contract in accordance with this
Agreement) and which in its opinion may involve it in any expenses or liability;
provided, however, that the Servicer may in its discretion undertake any such
-------- -------
other legal action which it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto. In such event, the
legal expenses and costs of such other legal action and any liability resulting
therefrom shall be expenses, costs and liabilities payable from the Certificate
Account, and the Servicer shall be entitled to be reimbursed therefor out of the
Certificate Account as provided by Section 5.03.
Section 7.06 Assignment by Servicer.
----------------------
Notwithstanding any provision to the contrary in this Agreement, without
the consent of the Trustee or any Certificateholder, the Servicer may, with the
consent of each of the Insurer and the Swap Counterparty (provided that if an
Insurer Default or Swap Default, as applicable, has occurred and is continuing,
no consent of the Insurer or the Swap Counterparty, as applicable, needs to be
obtained), which consent of the Swap Counterparty shall not be unreasonably
withheld, assign its rights and delegate its duties and obligations under this
Agreement to another Person; provided that such Person shall execute and deliver
--------
to the Trustee an agreement, in form and substance reasonably satisfactory to
the Trustee, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by the Servicer under this Agreement; and further provided that each
------- --------
Rating Agency's rating of any Class of the Certificates in effect immediately
prior to such assignment and delegation will not be withdrawn or reduced as a
result of such assignment and delegation, as evidenced by a letter from each
Rating Agency. In the case of any such assignment and delegation, the Servicer
shall be released from its obligations under this Agreement, except that the
Servicer shall remain liable for all liabilities and obligations incurred by it
as Servicer hereunder prior to the satisfaction of the conditions to such
assignment and in such delegation.
-77-
Section 7.07 Successor to the Servicer.
-------------------------
In connection with the termination of the Servicer's responsibilities and
duties under this Agreement pursuant to Section 8.01, the Trustee shall (i)
succeed to and assume all of the Servicer's responsibilities, rights, duties and
obligations under this Agreement (except the duty to pay and indemnify the
Trustee pursuant to Section 9.05 hereof), or (ii) with the consent of the
Contract Seller, the Insurer and the Swap Counterparty (provided that if an
Insurer Default or a Swap Default has occurred and is continuing, no consent of
the Insurer or the Swap Counterparty, as applicable, needs to be obtained),
which consent of the Swap Counterparty shall not be unreasonably withheld,
appoint a successor which shall have a net worth of not less than $50,000,000
and shall have serviced for at least one year prior to such appointment a
portfolio of not less than $100,000,000 principal balance of manufactured
housing installment sale contracts or installment loans and which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Servicer under this Agreement prior to the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement (except that the
duty to pay and indemnify the Trustee pursuant to Section 9.05 hereof shall be
subject to negotiation at the time of such appointment). If the Trustee has
become the successor to the Servicer in accordance with this Section 7.07, the
Trustee may, if it shall be unwilling to continue to so act, or shall, if it is
unable to so act, appoint, or petition a court of competent jurisdiction to
appoint, a successor satisfying the requirements set out in clause (ii) above.
In connection with any appointment of a successor Servicer, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Contracts as it and such successor shall agree or such court shall determine;
provided, however, that the Monthly Servicing Fee shall not be in excess of a
-------- -------
monthly amount equal to 1/12th of the product of 1% and the Pool Principal
Balance for the Distribution Date in respect of which such compensation is being
paid without the consent of all of the Certificateholders and notice to each
Rating Agency. If the Servicer's duties, responsibilities and liabilities under
this Agreement should be terminated pursuant to Section 7.06 or 8.01, the
Servicer shall discharge such duties and responsibilities during the period from
the date it acquires knowledge of such termination until the effective date
thereof with the same degree of diligence and prudence which it is obligated to
exercise under this Agreement, shall cooperate with the Trustee and any
successor Servicer in effecting the termination of the Servicer's
responsibilities and rights hereunder, and shall take no action whatsoever that
might impair or prejudice the rights or financial condition of its successor.
The assignment by a Servicer pursuant to Section 7.06 or removal of Servicer
pursuant to Section 8.01 shall not become effective until a successor shall be
appointed pursuant to this Section 7.07 and shall in no event relieve the
Contract Seller of liability pursuant to Section 3.05 for breach of the
representations and warranties made pursuant to Section 3.02 or 3.03. The
Servicer being terminated pursuant to Section 8.01 or Section 7.06 shall bear
all costs of a transfer of servicing therefrom, including but not limited to
those of the Trustee reasonably allocable to specific employees and overhead,
legal fees and expenses, and costs of amending the Agreement, if necessary.
Any successor appointed as provided herein shall execute, acknowledge and
deliver to the Servicer and to the Trustee an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement
and the Certificates. Any assignment by or termination of the Servicer pursuant
to
-78-
Section 7.06 or 8.01 or the termination of this Agreement pursuant to Section
10.01 shall not affect any claims that the Trustee may have against the Servicer
arising prior to any such termination or resignation.
The Servicer shall timely deliver to the successor the funds in the
Certificate Account and REO Account and all Contract Files, Land Home Contract
Files and related documents and statements held by it hereunder and the Servicer
shall account for all funds and shall execute and deliver such instruments and
do such other things as reasonably may be required to more fully and definitely
vest and confirm in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer. Without
limitation, the Trustee is authorized and empowered to execute and deliver on
behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments (including transfer instruments in respect of certificates
of title and financing statements relating to the Manufactured Homes), and to do
any and all acts or things necessary or appropriate to effect the purposes of
such notice of termination.
Upon a successor's acceptance of appointment as such, the Trustee shall
notify in writing the Certificateholders and each Rating Agency of such
appointment.
Section 7.08 Term of Servicer.
----------------
The Servicer hereby covenants and agrees to act as such under this
Agreement for an initial term, commencing on the Closing Date and ending on
December 31, 2000, which term shall be extendible by the Insurer for successive
quarterly terms ending on each successive December 31, March 31, June 30 and
September 30 (or, pursuant to revocable written standing instructions from time
to time to the Servicer and the Trustee, for any specified number of terms
greater than one), until the termination of the Trust Fund. Each such notice
(including each notice pursuant to standing instructions, which shall be deemed
delivered at the end of successive quarterly terms for so long as such
instructions are in effect) (a "Servicer Extension Notice") shall be delivered
by the Insurer to the Trustee and the Servicer. The Servicer hereby agrees
that, as of the date hereof and upon its receipt of any such Servicer Extension
Notice, the Servicer shall become bound, for the initial term beginning on the
cdate hereof and for the duration of the term covered by such Servicer Extension
Notice, to continue as the Servicer subject to and in accordance with the other
provisions of this Agreement, including, without limitation, Section 7.06
hereof. Until such time as an Insurer Default shall have occurred and be
continuing, the Trustee agrees that if as of the fifteenth day prior to the last
day of any term of the Servicer, the Trustee shall not have received any
Servicer Extension Notice from the Insurer, the Trustee will, within five days
thereafter, give written notice of such non-receipt to the Insurer and the
Servicer and the Servicer's term shall not be extended unless a Servicer
Extension Notice is received on or before the last day of such term.
Notwithstanding the foregoing, so long as the long-term senior debt rating of
GreenPoint Bank remains at least BBB- and Baa3 by S&P and ▇▇▇▇▇'▇, respectively,
and no Servicer Termination Event has occurred, each quarterly term of the
Servicer shall be deemed to be automatically renewed and no Servicer Extension
Notice shall be required to effectuate such automatic renewal.
-79-
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 Events of Default.
-----------------
In case one or more of the following Events of Default shall occur and be
continuing, that is to say:
(a) any failure by the Servicer to make any deposit or payment,
or to remit to the Trustee any payment, required to be made under the terms of
this Agreement which continues unremedied for a period of five days after the
date upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee or to the
Servicer and the Trustee by the Holders of Certificates evidencing Fractional
Interests aggregating not less than 25%; or
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement, including the failure to
deliver a Monthly Report, which continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee or to the
Servicer, the Trustee and the Contract Seller by the Holders of Certificates
evidencing Fractional Interests aggregating not less than 25%; or
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
appointing a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Servicer, and such decree or order shall have remained
in force undischarged or unstayed for a period of 60 days; or
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of the Servicer's
property; or
(e) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations or
take any corporate action in furtherance of the foregoing;
then, and in each and every such case, so long as such Event of Default shall
not have been cured or waived, the Trustee may with the consent of the Insurer
(provided that if an Insurer Default has occurred and is continuing, no consent
of the Insurer needs to be obtained and the Trustee shall instead obtain the
consent of the Swap Counterparty, which consent shall not be unreasonably
withheld, provided that if a Swap Default has occurred and is continuing, no
consent of the Swap Counterparty needs to be obtained), and the Trustee shall at
the written
-80-
direction of (i) the Insurer so long as no Insurer Default has occurred and is
continuing or (ii) if an Insurer Default has occurred and is continuing, the
Swap Counterparty so long as no Swap Default has occurred and is continuing or
(iii) if an Insurer Default and a Swap Default has occurred and is continuing,
and notwithstanding the waiver provisions of Section 8.02 hereof, the Holders of
Certificates evidencing Fractional Interests aggregating not less than 51% by
notice in writing to the Servicer, terminate all the rights and obligations of
the Servicer under this Agreement, including, without limitation, all rights
with respect to the Contracts and the proceeds thereof, except any
responsibility for its acts or omissions during its tenure as Servicer
hereunder. The Trustee shall send a copy of a notice of any Event of Default to
each Rating Agency, the Insurer, the Swap Counterparty, the Hedge Counterparty
and the Contract Seller. On or after the receipt by the Servicer of such written
notice, all authority and power of the Servicer under this Agreement, whether
with respect to the Contracts or otherwise, shall pass to and be vested in the
successor appointed pursuant to Section 7.07. Upon the occurrence of an Event of
Default which shall not have been remedied, the Trustee may also pursue whatever
rights it may have at law or in equity to damages, including injunctive relief
and specific performance. The Trustee will have no obligation to take any action
or institute, conduct or defend any litigation under this Agreement at the
request, order or direction of any of the Certificateholders, the Swap
Counterparty, the Hedge Counterparty or the Insurer unless such
Certificateholders, the Swap Counterparty, the Hedge Counterparty or the Insurer
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which the Trustee may incur.
Section 8.02 Waiver of Defaults.
------------------
The Insurer so long as no Insurer Default has occurred and is continuing or
if an Insurer Default has occurred and is continuing, the Swap Counterparty so
long as no Swap Default has occurred and is continuing or if an Insurer Default
and a Swap Default has occurred and is continuing, Holders of Certificates
evidencing Fractional Interests aggregating not less than 25% may waive any
default by the Servicer in the performance of its obligations hereunder and its
consequences, except that a default in the making of any required remittance to
the Trustee for distribution on any of the Certificates may be waived only by
the affected Certificateholders. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
Section 8.03 Trustee to Act, Appointment of Successor.
----------------------------------------
On and after the time the Servicer receives a notice of termination
pursuant to Section 8.01 or 8.07, the Trustee or its appointed agent shall be
the successor in all respects to the Servicer as provided in Section 7.07
hereof. Notwithstanding the above, or anything in Section 7.07 to the contrary,
the Trustee, if it becomes Servicer pursuant to this Section, shall have no
responsibility or obligation (i) to repurchase or substitute for any Contract,
(ii) for any representation or warranty of the Servicer hereunder, and (iii) for
any act or omission of either a predecessor or successor Servicer other than the
Trustee. The Trustee may conduct any activity required of it as Servicer
hereunder through an Affiliate or through an agent. Neither the Trustee nor any
other successor Servicer shall be deemed to be in default hereunder due to any
act or
-81-
omission of a predecessor Servicer, including but not limited to failure to
timely deliver to the Trustee any Monthly Report, any funds required to be
deposited to the Trust Fund, or any breach of its duty to cooperate with a
transfer of servicing as required by Section 7.07.
Section 8.04 Notification to Certificateholders.
----------------------------------
(a) Upon any such termination pursuant to Section 8.01 or 8.07,
the Trustee shall give prompt written notice thereof to the Contract Seller, the
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to all Holders of Certificates
notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
Section 8.05 Effect of Transfer.
------------------
(a) After a transfer of servicing duties to a successor
Servicer pursuant to Section 7.04, 7.06, 7.07, 8.01 or 8.07, the Trustee or the
successor Servicer may notify Obligors to make payments that are due under the
Contracts after the effective date of the transfer of servicing duties directly
to the successor Servicer.
(b) After the transfer of servicing duties to a successor
Servicer pursuant to Section 7.04, 7.06, 7.07, 8.01 or 8.07, the replaced
Servicer shall have no further obligations with respect to the management,
administration, servicing or collection of the Contracts, but in the case of a
transfer pursuant to Section 7.07, 8.01 or 8.07 shall remain liable for any
liability arising from the replaced Servicer's actions hereunder and shall
remain entitled to any compensation due the replaced Servicer that had already
accrued prior to such transfer.
Section 8.06 Transfer of the Account.
-----------------------
Notwithstanding the provisions of Section 8.01 or 8.07, if the Certificate
Account shall be maintained with the Servicer or an Affiliate of the Servicer
and an Event of Default shall occur and be continuing, the Servicer, after five
days' written notice from the Trustee, or in any event within ten days after the
occurrence of the Event of Default, shall establish a new account, which shall
be an Eligible Account, conforming with the requirements of this Agreement, at
the trust department of the Trustee or with a depository institution other than
the Servicer or an Affiliate of the Servicer, and shall promptly transfer all
funds in the Certificate Account to such new Certificate Account, which shall
thereafter be deemed the Certificate Account for the purposes hereof.
Section 8.07 Servicer Termination Events.
---------------------------
If one or more of the following Servicer Termination Events shall occur and
be continuing with respect to a Distribution Date:
(a) any demand for payment shall be made under the Certificate
Insurance Policy, except to the extent such payment is related to amounts that
would otherwise be received by the Trust Fund pursuant to the Hedge Agreement
for such Distribution Date;
-82-
(b) failure of the Servicer to deliver the Monthly Report to
the Trustee pursuant to Section 5.04 hereof more than twice during the term of
this Agreement; or
(c) the occurrence of any Advanced Trigger Event; or
(d) GreenPoint Bank no longer directly or indirectly owns 100%
of GreenPoint; or
(e) GreenPoint sells a substantial portion of its manufactured
housing servicing operations without the prior written consent of
the Insurer; or
(f) the Servicer contracts with a subservicer to service the
Contracts without the prior written consent of the Insurer; or
(g) GreenPoint Bank fails to maintain the capital standards
established for "well capitalized" institutions under the prompt corrective
action regulations issued pursuant to the Federal Deposit Insurance Corporation
Improvement Act of 1991, as amended; or
(h) GreenPoint Bank or any of its Affiliates (a) fail to pay
any principal of or premium or any interest on its debt which is outstanding in
the principal amount of at least $1,000,000 when due, subject to the applicable
grace period, if any, specified in the agreement or other instrument relating to
such debt and (b) if the effect of such event is to accelerate the maturity and
repayment of such debt before the stated maturity thereof; or
(i) the occurrence of a Servicer Termination Event under any
pooling and servicing agreement executed in connection with a GreenPoint
securitization that is insured by the Insurer.
then, in each and every such case, and so long as no Insurer Default has
occurred and is continuing, the Insurer may review the operations of the
Servicer and, in its sole discretion remove the Servicer. Upon such removal the
provisions of Sections 8.03, 8.04, 8.05 and 8.06 shall apply. Neither the
Trustee nor the Certificateholders shall have the right to remove the Servicer
if a Servicer Termination Event has occurred.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties of Trustee.
-----------------
The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred, undertakes
to perform such duties and only such duties as are set forth specifically in
this Agreement. In case an Event of Default has occurred of which a Responsible
Officer has knowledge (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs,
unless it is acting as Servicer
-83-
pursuant to Section 8.03 in which case it will use the same degree of care and
skill as the Servicer.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are required specifically to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own misconduct; provided, however, that:
-------- -------
(i) Prior to the occurrence of an Event of Default, and
after the curing or waiver of all such Events of Default which may have
occurred, the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may rely conclusively, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) The Trustee shall not be liable personally for an
error of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable personally with
respect to any action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of the Insurer, the Swap Counterparty or
Holders of Certificates evidencing Fractional Interests aggregating not less
than 25% as to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement.
None of the provisions contained in this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties as Trustee hereunder or in the
exercise of any of its rights or powers if there is reasonable ground for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
The Trustee shall have no liability for any loss on any Eligible Investment
except and only to the extent that it is an obligor thereon.
Section 9.02 Certain Matters Affecting the Trustee.
-------------------------------------
Except as otherwise provided in Section 9.01:
(a) The Trustee may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other
-84-
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) The Trustee may consult with counsel, and any written
advice of its counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(c) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, the Swap Counterparty or the Insurer
pursuant to the provisions of this Agreement, unless such Certificateholders,
the Swap Counterparty or the Insurer shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(d) The Trustee shall not be liable personally for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default which may have
occurred, the Trustee shall not be bound to make any investigation into the
computations, facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, any Monthly Report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing so
to do by the Holders of Certificates evidencing Fractional Interests aggregating
not less than 25%; provided, however, that if the payment within a reasonable
-------- -------
time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to such proceeding. The reasonable expense
of every such examination shall be paid by the Servicer, if an Event of Default
shall have occurred and is continuing, and otherwise by the Certificateholders
requesting the investigation;
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that any Affiliate of the Contract
-------- -------
Seller may only perform ministerial or custodial duties hereunder as agent for
the Trustee; and
(g) The Trustee shall examine any directions, notices or other
communications received from the Servicer, the Swap Counterparty, the Contract
Seller, the Insurer or any Certificateholder (or agent thereof) to determine if
such directions, notices or other communications appear on their face to have
been made and to otherwise be in accordance with the requirements of this
Agreement. As long as the Trustee has acted in good faith and has not been
negligent in making determinations required by this Section 9.02(g), the Trustee
may conclusively rely on such directions, notices or other communications and
shall incur no liability
-85-
hereunder for complying with, or assuming the truth of the statements contained
in, any such direction, notice or other communication.
Section 9.03 Trustee not Liable for Certificates or Contracts.
------------------------------------------------
The recitals contained herein and in the Certificates (other than the
authentication of the Certificates) shall be taken as the statements of the
Contract Seller or the Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations or
warranties as to the validity or sufficiency of this Agreement, of the
Certificates (except that the Certificates shall be duly and validly
authenticated by it) or of any Contract or related document. The Trustee shall
not be accountable for the use or application by the Contract Seller or the
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Contract Seller or the
Servicer in respect of the Contracts or deposited in or withdrawn from the
Certificate Account by the Servicer.
Section 9.04 Trustee May Own Certificates.
----------------------------
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates and may transact business with the other parties hereto
with the same rights it would have if it were not Trustee.
Section 9.05 Servicer to Pay Fees and Expenses of Trustee, Paying Agent
----------------------------------------------------------
and Certificate Administrator.
-----------------------------
The Servicer covenants and agrees to pay, from its own funds, to the
Trustee, the Paying Agent and the Certificate Administrator from time to time,
and the Trustee, the Paying Agent and the Certificate Administrator shall each
be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by it in the execution of the trust hereby created and
in the exercise and performance of any of the powers and duties hereunder of the
Trustee, and the Servicer will pay (out of its own funds) or reimburse the
Trustee, the Paying Agent and the Certificate Administrator, to the extent
requested by the Trustee, the Paying Agent or the Certificate Administrator, as
the case may be, for all reasonable expenses, disbursements and advances
incurred or made by the Trustee, the Paying Agent or the Certificate
Administrator, as the case may be, in accordance with any of the provisions of
this Agreement, and the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ, and
the expenses incurred by the Trustee in connection with the appointment of an
office or agency pursuant to Section 9.11, except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Servicer also
covenants and agrees to indemnify (out of its own funds) the Trustee, the Paying
Agent and the Certificate Administrator for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee, the Paying Agent or the Certificate Administrator,
as the case may be, arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
covenants in this Section 9.05 shall be for the benefit of the Trustee, the
Paying Agent and
-86-
the Certificate Administrator in their respective capacities as Trustee,
Certificate Administrator, Paying Agent and Certificate Registrar hereunder, and
shall survive the termination of this Agreement.
Section 9.06 Eligibility Requirements for Trustee.
------------------------------------
There shall at all times be a Trustee hereunder which shall be qualified to
maintain an Eligible Account and shall be either (a) Bank One, National
Association ("Bank One") or any other Person into which Bank One is merged or
consolidated or to which substantially all of the properties and assets of Bank
One are transferred as an entirety, provided that such other Person has accepted
--------
appointment as Trustee under this Agreement in accordance with this Article IX,
and further provided that such entity is not an Affiliate of the Contract Seller
------- --------
or the Swap Counterparty, is authorized to exercise corporate trust powers under
the laws of the United States of America, any State thereof or the District of
Columbia and has all necessary trust powers to perform its obligations
hereunder, or (b) a corporation or banking association organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by Federal or State authority, and which
is not an Affiliate of the Contract Seller or the Swap Counterparty; further
-------
provided that either (i) such entity has long-term debt rated at least Aa2 by
--------
▇▇▇▇▇'▇, A+ by S&P or the equivalent by any nationally recognized statistical
rating organization, or (ii) each Rating Agency provides a letter to the effect
that such appointment will not affect the then current ratings of the
Certificates. If the corporation or banking association referred to in clause
(b) of the previous sentence publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section 9.06, the combined capital and
surplus of such corporation or banking association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In addition, the Trustee shall maintain an office in New York.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.06, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article IX.
Section 9.07 Resignation and Removal of the Trustee.
--------------------------------------
The Trustee at any time may resign and be discharged from the trusts hereby
created by giving written notice thereof to the Contract Seller, the Servicer,
the Insurer, the Swap Counterparty and each Rating Agency. Upon receiving such
notice of resignation, the Contract Seller, with the consent of the Insurer
(provided that if an Insurer Default has occurred and is continuing, no such
consent needs to be obtained and the Trustee shall instead obtain the consent of
the Swap Counterparty, provided that if a Swap Default has occurred and is
continuing no such consent needs to be obtained) shall promptly appoint a
successor trustee 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.
-87-
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 9.06 and shall fail to resign after written request
therefor by the Contract Seller, or if at any time the Trustee shall become
incapable of acting, 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 Contract
Seller may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee and the
Certificateholders.
The Holders of Certificates evidencing Fractional Interests aggregating not
less than 50% may remove the Trustee at any time and appoint a successor trustee
reasonably satisfactory to the Insurer (provided that if an Insurer Default has
occurred and is continuing, no consent of the Insurer needs to be obtained and
the consent of the Swap Counterparty shall instead be obtained, provided that if
a Swap Default has occurred and is continuing no such consent needs to be
obtained) by written instrument or instruments, in triplicate, signed by such
Certificateholders or their attorneys-in-fact duly authorized, one complete set
of which instruments shall be delivered to the Contract Seller, one complete set
to the Trustee so removed and one complete set to the successor so appointed.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 9.07 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 9.08.
Section 9.08 Successor Trustee.
-----------------
Any successor trustee appointed as provided in Section 9.07 shall execute,
acknowledge and deliver to the Contract Seller and to its predecessor trustee,
with a copy to the Servicer, an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor trustee and the
appointment of such successor 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
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall execute and deliver such instruments and do such other
things as reasonably may be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations.
No successor trustee shall accept appointment as provided in this Section
9.08 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 9.06.
Upon acceptance of appointment by a successor trustee as provided in this
Section 9.08, the Servicer shall mail notice of the succession of such trustee
hereunder to all Certificateholders at their addresses as shown in the
Certificate Register, to the Contract Seller and each Rating Agency. If the
Servicer fails 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.
-88-
Section 9.09 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 the business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation shall be eligible under the
--------
provisions of Section 9.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. Upon succession of a successor trustee as provided in
this Section 9.09, the successor Trustee shall mail notice of the succession of
such trustee hereunder to all Certificateholders at their addresses as shown in
the Certificate Register, to the Servicer, the Contract Seller and each Rating
Agency.
Section 9.10 Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions hereof, at any time, for the purpose
of (i) meeting any legal requirements of any jurisdiction in which any part of
the Trust Fund or property securing the same may be located at the time, or (ii)
meeting any legal requirements with respect to the holding of the Contracts, the
Contract Seller 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 or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
9.10, such powers, duties, obligations, rights and trusts as the Contract Seller
and the Trustee may consider necessary or desirable. If the Contract Seller
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall (or with the consent of the Contract Seller)
have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 9.06 hereunder, and no notice to Certificateholders of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 9.08 hereof.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 9.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that, under any law of any jurisdiction in which any particular
act or acts are to be performed or under any regulation applicable to any of the
Contracts, 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 Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or co-
trustee at the direction of the 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 IX. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its
-89-
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. Every
such instrument shall be filed with the Trustee.
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. Nothing in this Section 9.10 shall relieve the Trustee of
its duties, obligations or liabilities under this Agreement.
Section 9.11 Appointment of Office or Agency.
-------------------------------
The Trustee will appoint an office or agency in the City of New York where
Certificates may be surrendered for registration of transfer or exchange. The
Trustee initially designates First Chicago Trust Company of New York, located at
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, for such purpose. The Certificate Register
will be kept in Chicago, Illinois at the offices of the Certificate Registrar
located at the Corporate Trust Office and may be kept in an electronic form
capable of printing out a hard copy of the Certificate Register. The Trustee
will maintain an office at the address stated in Section 11.05 hereof where
notices and demands to or upon the Trustee in respect of the Certificates may be
served. The Trustee will give prompt written notice to Certificateholders of
any change in the location of the Certificate Register or any such office or
agency.
Section 9.12 Certificate Administrator.
-------------------------
The Trustee may, from time to time, appoint a Certificate Administrator for
the purpose of performing, as the Trustee's agent, those duties hereunder that
are specifically designated herein as performable by the Certificate
Administrator; provided, however, that the Certificate Administrator shall at
-------- -------
all times satisfy the eligibility requirements of a Trustee set forth in Section
9.06. As of the Closing Date, the Trustee shall be the Certificate
Administrator unless and until the Trustee appoints a successor Certificate
Administrator. In performing its duties hereunder, the Certificate
Administrator (if not the Trustee) shall have the benefit of the provisions of
this Agreement to the same extent that the Trustee would have the benefit of
such provisions if the Trustee were itself performing such duties. The
Certificate Administrator (including the Trustee solely in its capacity as
Certificate Administrator) shall not have any fiduciary responsibility to the
Contract Seller, the Servicer or the Certificateholders except when acting as
Paying Agent. Additionally, the Certificate Administrator shall be entitled to
rely upon all directions, calculations and other information received by the
Contract Seller, the Trustee or the Servicer without any duty to independently
verify such directions, calculations or other information.
-90-
Section 9.13 Appointment of Paying Agent.
---------------------------
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to this Agreement. Any Paying
Agent or its parent company so appointed either shall be a bank or trust company
and shall have a rating acceptable to each Rating Agency. In the event of any
such appointment, on or prior to each Distribution Date, the Trustee shall
deposit or cause to be deposited with the Paying Agent, from amounts in the
Certificate Account, a sum sufficient to make the payments to Certificateholders
in the amounts and in the manner provided for in this Agreement, such sum to be
held in trust for the benefit of the Certificateholders. The Trustee is hereby
initially appointed as Paying Agent.
In performing its duties hereunder, the Paying Agent shall have the benefit
of the provisions of this Agreement to the same extent that the Trustee would
have the benefit of such provisions if the Trustee were itself performing such
duties. Additionally, the Paying Agent shall be entitled to rely upon all
information received from the Servicer without any duty to independently verify
or recalculate any such information.
The Trustee shall cause the Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent is at all times acting as agent for the Trustee and such
Paying Agent will hold all sums held by it for the payment to Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
Section 9.14 Determination of LIBOR; Auction Procedures
------------------------------------------
On each LIBOR Determination Date (or if such date is not a Business Day, on
the next succeeding Business Day), the Trustee shall determine LIBOR for the
following Interest Accrual Period in effect on such LIBOR Determination Date and
shall inform the Servicer of such rate. The Trustee agrees to comply with the
terms of the Auction Procedures as such terms relate to the Trustee.
ARTICLE X
TERMINATION
Section 10.01 Termination.
-----------
(a) The respective obligations and responsibilities (other than
any obligations and responsibilities in the nature of tax reporting) of the
Contract Seller, the Servicer (except as to Section 9.05) and the Trustee shall
terminate upon the earlier of: (i) the final payment or other liquidation (or
any advance with respect thereto) of the last Contract or the disposition of all
property acquired upon repossession of any Contract and the remittance of all
funds due hereunder; (ii) at the option of the Servicer, on any Distribution
Date after the Optional Termination Date and subject to the prior consummation
of the Termination Auction as contemplated pursuant to Section 10.01(b) below,
upon the purchase by the Servicer of the Outstanding Contracts at a price equal
to the greater of (a) the sum of (x) 100% of the Scheduled Principal Balance of
each Contract (other than any Contract as to which the related Manufactured Home
has been acquired and not yet disposed of and whose fair market value is
-91-
included pursuant to clause (y) below) as of the final Distribution Date, and
(y) the fair market value of such acquired property (as determined by the
Servicer as of the close of business on the third Business Day next preceding
the date upon which notice of any such termination is furnished to
Certificateholders pursuant to Section 10.01(c)(i)), and (b) the aggregate fair
market value (as determined by the Servicer as of the close of business on such
third Business Day) of all the assets in the Trust Fund, plus, in the case of
both clause (a) and clause (b), an amount sufficient to pay any Class A-1 Unpaid
Interest Shortfall, the Class A-2 Unpaid Interest Shortfall and Class A-3 Unpaid
Interest Shortfall and the remittance of all funds due hereunder; provided,
--------
however, that if any Policy Claim Amount has been paid and not yet reimbursed,
-------
the Servicer may only exercise this option with the consent of the Insurer,
provided, further, that if any Swap Amounts have been paid and not yet
-------- -------
reimbursed, the Servicer may only exercise this option with the consent of the
Swap Counterparty, provided, further, that the Servicer may only exercise this
-------- -------
option with the consent of the Hedge Counterparty, provided, further, that the
-------- -------
purchase price of such Contracts shall in no event be less than the Minimum
Termination Amount as of the Distribution Date on which the Servicer purchases
such Contracts; or (iii) the sale of all Contracts that remain outstanding,
pursuant to a Termination Auction as contemplated by Section 10.01(b) below and
the remittance of all funds due hereunder. Notwithstanding anything herein to
the contrary, in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of St.
▇▇▇▇▇, living on the date hereof; and provided further that if the Trust Fund is
-------- -------
dissolved prior to the termination of the Certificate Insurance Policy, the
Hedge Agreement and/or the Swap, the Trustee shall retain possession of the
Certificate Insurance Policy, the Hedge Agreement and the Swap, as applicable,
as collateral agent for the benefit of the Certificateholders, and if any amount
previously distributed in accordance with Section 5.02(a) is thereafter required
to be paid under the Certificate Insurance Policy, the Hedge Agreement or the
Swap, the Trustee as collateral agent shall make a claim under the Certificate
Insurance Policy, the Hedge Agreement or the Swap for such amount in accordance
with Section 5.08 or Section 5.09 and distribute such amount as required under
the Certificate Insurance Policy, the Hedge Agreement or the Swap.
(b) Termination Auction. The Servicer shall provide written
-------------------
notice to the Trustee of the occurrence of the Distribution Date as of which the
Pool Scheduled Principal Balance is less than 10% of the Cut-Off Date Pool
Principal Balance within three Business Days following such Distribution Date.
If the Servicer does not exercise its option to purchase the Contracts pursuant
to Section 10.01(a), the Trustee shall in accordance with the procedures and
schedule set forth in Exhibit I hereto (the "Termination Auction Procedures"),
---------
make a commercially reasonable effort to sell at fair market value in a
commercially reasonable manner and upon commercially reasonable terms but
subject to the earlier purchase by the Servicer of the Outstanding Contracts as
provided in Section 10.01(a) above, by conducting an auction (the "Termination
Auction") of the Contracts remaining in the Trust Fund in order to effect a
termination of the Trust Fund on a date selected by the Trustee (the "Auction
Termination Date"), but in any case within ninety days following the
Distribution Date as of which the Pool Scheduled Principal Balance is less than
10% of the Cut-Off Date Pool Principal Balance. The Contract Seller (if
GreenPoint is not the Servicer) may, but shall not be required to, bid at the
Termination Auction. The Trustee shall be entitled to retain counsel of its
choice to represent it in the Termination Auction, and the fees and expenses of
such counsel shall be paid by the
-92-
Servicer. The Trustee shall sell and transfer the Contracts to the highest
bidder therefor at the Termination Auction provided that:
(1) the Termination Auction has been conducted in
accordance with the Termination Auction Procedures;
(2) the Trustee has received good faith bids for
the Contracts from at least two prospective purchasers that are considered by
the Trustee, in its sole discretion, to be competitive participants in the
market for manufactured housing installment sale contracts; provided, that at
--------
least one of such prospective purchasers shall not be an Affiliate of the
Contract Seller;
(3) a financial advisor selected by the Trustee,
the fees of whom shall be an expense of the Servicer, as advisor to the Trustee
(in such capacity, the "Advisor"), shall have advised the Trustee in writing
that at least two of such bidders are participants in the market for
manufactured housing retail installment sale contracts and are willing and able
to purchase the Contracts (the Trustee may in its discretion select itself or an
affiliate thereof as Advisor);
(4) the highest bid in respect of the Contracts is
not less than the aggregate fair market value of the Contracts (as determined by
the Trustee in its sole discretion);
(5) any bid submitted by the Contract Seller or any
Affiliate of the Contract Seller shall be independently verified and represented
in writing by a qualified independent third party evaluator (which may include
the Advisor or an investment banking firm) selected by the Trustee and may only
be considered if such evaluator determines that the bid reasonably represents
the fair market value of the Contracts;
(6) the highest bid would result in proceeds from
the sale of the Contracts which will be at least equal to the Minimum
Termination Amount plus any unreimbursed Policy Claim Amount plus any other
amounts due and owing to the Insurer hereunder or pursuant to the Insurance
Agreement plus any unreimbursed Swap Amounts plus an amount sufficient to pay
any termination fees owed to the Hedge Counterparty pursuant to the Hedge
Agreement;
(7) such sale and consequent termination of the
Trust Fund must constitute a "qualified liquidation" of the Trust Fund under
Section 860F of the Code, including the requirement that the proceeds of such
qualified liquidation are credited or distributed to the holders of regular
residual interests within 90 days from the date upon which the Trust Fund adopts
a plan of complete liquidation (the Trustee may, in its discretion, require that
the purchaser of such Contracts provide an Opinion of Counsel to that effect);
and
(8) the terms of the Termination Auction must be
made available to all bidders and must stipulate that the Servicer be retained
to service the Contracts on terms substantially similar to those in this
Agreement.
-93-
Provided that all of the conditions set forth in clauses (1) through (8)
have been met, the Trustee shall sell and transfer the Contracts, without
representation, warranty or recourse of any kind whatsoever, to such highest
bidder in accordance with and upon completion of the Termination Auction
Procedures. The Trustee shall deposit the purchase price for the Contracts in
the Certificate Account at least one Business Day prior to the fourth
Distribution Date following the Optional Termination Date. The provisions of
subsections (c) and (d) of this Section 10.01 also shall apply with respect to
any Termination Auction. In the event that any of such conditions are not met
or such highest bidder fails or refuses to comply with any of the Termination
Auction Procedures, the Trustee shall decline to consummate such sale and
transfer. In such case the Termination Auction shall be concluded and the
Trustee shall be under no further duty to solicit bids for or otherwise to
attempt to sell the Contracts.
(c) (i) Notice of any termination, specifying the Distribution
Date upon which all Certificateholders may surrender their Certificates to the
Trustee for payment and cancellation, shall be given promptly by the Servicer by
letter to the Certificateholders, the Insurer, the Swap Counterparty, the Hedge
Counterparty, the Trustee, the Contract Seller and each Rating Agency mailed no
later than the 10th day of the month next preceding the month of such final
distribution, specifying (i) the Distribution Date upon which final payment on
the Certificates will be made upon presentation and surrender of Certificates at
the office or agency of the Trustee therein designated, (ii) the amount of any
such final payment, and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office or agency of the Trustee therein
specified. After giving such notice, the Trustee shall not register the transfer
or exchange of any Certificates. If such notice is given in connection with the
Servicer's election to purchase, the Servicer shall deposit in the Certificate
Account on the Business Day prior to the applicable Distribution Date the amount
described in Section 10.01(a)(ii). The amount so deposited shall not be
invested.
(ii) Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed, from funds in the Certificate
Account, (a) first, to the Hedge Counterparty, any Hedge Termination
Payment, (b) second, to Certificateholders, in proportion to their
respective Percentage Interests, an amount equal to (1) as to the Class
A-1 Certificates, the Class A-1 Certificate Balance together with the
Class A-1 Unpaid Interest Shortfall and one month's interest at the
Class A-1 Pass-Through Rate on the Class A-1 Certificate Balance, (2) as
to the Class A-2 Certificates, the Class A-2 Certificate Balance
together with the Class A-2 Unpaid Interest Shortfall and one month's
interest at the Class A-2 Pass-Through Rate on the Class A-2 Certificate
Balance, and (3) as to the Class A-3 Certificates, the Class A-3
Certificate Balance together with the Class A-3 Unpaid Interest
Shortfall and one month's interest at the Class A-3 Pass-Through Rate on
the Class A-3 Certificate Balance, (c) third, to the Insurer, any
unreimbursed Policy Claim Amounts and (d) fourth, to the Swap
Counterparty, any unreimbursed Swap Amounts.
(iii) Upon such termination, any amounts remaining in the
Certificate Account (other than amounts retained to meet claims) shall
be paid to the Class R Certificateholders. Following such final deposit,
the Servicer shall prepare and the Trustee shall execute all
assignments, endorsements and other instruments necessary to
-94-
effectuate such transfer. The distribution on the final Distribution
Date shall be in lieu of the distribution otherwise required to be made
on such Distribution Date in respect of the Certificates and the Class R
Certificate.
(d) If any Certificateholder does not surrender its Certificate
for cancellation by the final Distribution Date specified in the written notice
required in Section 10.01(c)(i), any amounts retained in the Certificate Account
that are owed to such Certificateholder shall be withdrawn from the Certificate
Account and held in an escrow account with the Trustee pending distribution
pursuant to this Section 10.01(d). Any amounts so held shall not be invested.
The Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within two years after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Trustee shall so notify the Contract Seller and the Contract
Seller may take appropriate steps, or may appoint an agent to take appropriate
and reasonable steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of, and
only to the extent of, the funds and other assets which remain in trust
hereunder.
Upon any termination pursuant to the exercise of the purchase option
contained in Section 10.01(a)(ii), the consummation of a sale pursuant to a
Termination Auction or otherwise, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee has
received an Opinion of Counsel to the effect that the failure of the Trust Fund
to comply with the requirements of this Section 10.01 will not (i) result in the
imposition of taxes on "prohibited transactions" of the Trust Fund as described
in Section 860F of the Code, (ii) cause the Trust Fund to fail to qualify as a
REMIC at any time that any Certificates are outstanding, or (iii) result in the
imposition of taxes on contributions of additional assets to the Trust Fund
under Section 860G(d) of the Code:
(i) Within 90 days prior to the final Distribution Date
set forth in the notice given by the Servicer or the Trustee under this Section
10.01, the Holders of the Class R Certificates shall adopt a plan of complete
liquidation of the Trust Fund;
(ii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date, the
Servicer as agent of the Trustee shall sell all of the assets of the Trust Fund
to the purchaser thereof (which may be the Servicer) for cash (other than assets
that will be converted to cash prior to the final Distribution Date); and
(iii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date, the Trustee
shall credit or distribute all proceeds of the liquidation (plus the cash), less
assets retained to meet claims, to the Certificateholders.
By its acceptance of a Class R Certificate, each Holder thereof hereby agrees to
adopt such a plan of complete liquidation upon the written request of the
Servicer and to take such other action in connection therewith as may be
reasonably requested by the Contract Seller.
-95-
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
---------
This Agreement may be amended from time to time by the Contract Seller, the
Servicer and the Trustee, with the consent of the Insurer (provided that if an
Insurer Default has occurred and is continuing, no such consent needs to be
obtained), with the consent of the Swap Counterparty, which consent shall not be
unreasonably withheld (provided that if a Swap Default has occurred and is
continuing, no such consent needs to be obtained) and with the consent of the
Hedge Counterparty (provided that if the Hedge Counterparty is in default under
the Hedge Agreement, no such consent needs to be obtained) without the consent
of any of the Certificateholders, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein, (iii) to add to the duties or obligations of
the Servicer, (iv) to obtain a rating from a nationally recognized rating agency
or to maintain or improve the ratings of any Class of Certificates by each
Rating Agency (it being understood that after obtaining ratings for the
Certificates from Moody's and S&P, none of the Trustee, the Contract Seller or
the Servicer is obligated to obtain, maintain or improve any rating assigned to
the Certificates) or (v) to make such other provisions with respect to matters
or questions arising under this Agreement, as shall not be inconsistent with any
other provisions herein; provided that such action shall not, as evidenced by an
--------
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder. Notwithstanding the foregoing, without the consent of the
Certificateholders, the Trustee, the Contract Seller and the Servicer, with the
consent of the Insurer, which consent shall not be unreasonably withheld
(provided that if an Insurer Default has occurred and is continuing, no such
Insurer consent needs to be obtained), the Swap Counterparty, which consent
shall not be unreasonably withheld (provided that if a Swap Default has occurred
and is continuing, no such Swap Counterparty consent needs to be obtained), the
Hedge Counterparty (provided that if the Hedge Counterparty is in default under
the Hedge Agreement, no such consent needs to be obtained), may at any time and
from time to time amend this Agreement to modify, eliminate or add to any of its
provisions to such extent as shall be necessary or appropriate to maintain the
qualification of the Trust Fund as a REMIC under the Code or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund pursuant to the
Code that would be a claim against the Trust Fund at any time prior to the final
redemption of the Certificates, provided that the Trustee has been provided an
Opinion of Counsel, which opinion shall be an expense of the party requesting
such opinion but in any case shall not be an expense of the Trustee, to the
effect that such action is necessary or appropriate to maintain such
qualification or to avoid or minimize the risk of the imposition of such a tax.
Notwithstanding anything to the contrary in this Agreement, Section 5.09 of this
Agreement and the definitions of Swap, Swap Counterparty, Swap Amount and Swap
Default, respectively, may be amended, eliminated, cancelled, modified or
changed in any way by mutual agreement between the Insurer and the Swap
Counterparty without the consent of the Trustee, Certificateholders, the
Contract Seller or the Servicer. Notwithstanding anything to the contrary in
this Agreement, in the event that the Swap is cancelled and all Swap Amounts
have been reimbursed thereunder, any required consent of the Swap Counterparty
hereunder need not be obtained.
-96-
This Agreement may also be amended from time to time by the Contract
Seller, the Servicer and the Trustee with the consent of the Insurer (provided
that if an Insurer Default has occurred and is continuing, no such consent needs
to be obtained), with the consent of the Swap Counterparty, which consent shall
not be unreasonably withheld (provided that if a Swap Default has occurred and
is continuing, no such consent needs to be obtained), with the consent of the
Hedge Counterparty (provided that if the Hedge Counterparty is in default under
the Hedge Agreement, no such consent needs to be obtained) and with the consent
of the Holders of a Majority In Interest of each Class of Regular Certificates
affected thereby 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 (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in (i), without the consent of the Holders of Certificates of such
Class evidencing, as to such Class, Percentage Interests aggregating 66% or
(iii) reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall be an expense of the party
requesting such amendment but in any case shall not be an expense of the
Trustee, to the effect that such amendment will not cause the imposition of any
tax on the Trust Fund or the Certificateholders or cause the Trust Fund to fail
to qualify as a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder, the
Insurer, the Swap Counterparty, the Hedge Counterparty and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel, satisfactory to the Trustee
that (i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material respect
the interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 11.01.
-97-
Section 11.02 Recordation of Agreement; Counterparts.
--------------------------------------
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Contracts are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Servicer at its expense.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 11.03 Governing Law.
-------------
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF CALIFORNIA AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.04 Calculations.
------------
Except as otherwise provided in this Agreement, all Pass-Through Rate,
interest rate and basis point calculations under this Agreement will be made
with respect to the Class A Certificates on the basis of the actual number of
days elapsed during the related Interest Accrual Period and a 360-day year and
will be carried out to at least three decimal places. Interest on the Regular
Certificates with respect to a Distribution Date will accrue during the related
Interest Accrual Period.
Section 11.05 Notices.
-------
(a) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been
cured;
3. The resignation or termination of the Servicer or the
Trustee and the appointment of any successor or any assignment of this Agreement
pursuant to Section 7.06;
4. The repurchase or substitution of Contracts pursuant to
Section 3.05;
5. The final payment to Certificateholders;
6. A sale of any Class R Certificate; and
-98-
7. Any shortfalls arising from the failure of the Servicer to
advance as required pursuant to Section 5.01 hereof.
In addition, the Servicer shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 5.07;
2. Each annual statement as to compliance described in Section
4.20; and
3. Each annual independent public accountants' servicing report
described in Section 4.21.
All directions, demands and notices hereunder shall be in writing and shall
be deemed to have been duly given when delivered to (a) in the case of the
Contract Seller and the Servicer: GreenPoint Credit, LLC, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investor Servicing (or
such other address as may be hereafter furnished to the Contract Seller, the
Insurer, the Swap Counterparty and the Trustee by the Servicer in writing), with
copies to ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., GreenPoint Bank, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, (b) in the case of the Trustee, Bank One, National Association, ▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇ or such other address as the Trustee may hereafter furnish to the
Contract Seller, the Insurer, the Swap Counterparty and the Servicer; (c) in the
case of the Insurer, Financial Security Assurance Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Senior Vice President, Transaction Oversight,
Re: GreenPoint Manufactured Housing Contract Trust Pass-Through Certificates
Series 2000-6, or such other address as the Insurer may hereafter furnish to the
Contract Seller, the Trustee and the Servicer, (d) in the case of the Rating
Agencies, (i) ▇▇▇▇▇'▇ Investors Service, Inc., Manufactured Housing Monitoring
Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (ii) S&P, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (e) in the case of the Auction Agent, Bankers
Trust Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust and Agency Group, (f) in the case of the Market Agent, Credit Suisse First
Boston Corporation, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel, (g) in the case of the Swap Counterparty, GreenPoint Bank, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq. and (h) in
the case of the Hedge Counterparty, Credit Suisse First Boston International,
One ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, Attention: General Counsel. Notices
to Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 11.06 Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
-99-
Section 11.07 Assignment.
----------
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Sections 7.04 and 7.06, this Agreement may not be assigned
by the Servicer without the prior written consent of the Trustee and the
Contract Seller.
Section 11.08 Limitations on Rights of Certificateholders.
-------------------------------------------
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
Fund, or otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless
the Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 11.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.09 Inspection and Audit Rights.
---------------------------
The Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Contract Seller or the Trustee during the Servicer's
normal business hours, to examine all the books of account, records, reports and
other papers of the Servicer relating to the Contracts, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
-100-
public accountants selected by the Contract Seller or the Trustee and to discuss
its affairs, finances and accounts relating to the Contracts with its officers,
employees and independent public accountants (and by this provision the Servicer
hereby authorizes such accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any out-of-pocket expense incident to the exercise
by the Contract Seller or the Trustee of any right under this Section 11.09
shall be borne by the party requesting such inspection; all other such expenses
shall be borne by the Servicer.
Section 11.10 Certificates Nonassessable and Fully Paid.
-----------------------------------------
It is the intention of the Contract Seller that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 11.11 Third Party Beneficiary
-----------------------
Each of the Insurer, the Swap Counterparty, the Hedge Counterparty and the
Market Agent shall be a third party beneficiary of this Agreement. The Insurer
and the Swap Counterparty shall be entitled to bring a claim against the
Contract Seller for its failure to perform its obligations under Section 3.05 or
a claim against the Servicer for any failure by the Servicer to make Monthly
Advances as required under Section 5.01 or any deposit or other payment required
under this Agreement.
Section 11.12 Independence of the Servicer.
----------------------------
For all purposes of this Agreement, the Servicer shall be an independent
contractor and shall not be subject to the supervision of the Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by this Agreement, the
Servicer shall have no authority to act for or represent the Trustee in any way
and shall not otherwise be deemed an agent of the Trust Fund or the Trustee.
Section 11.13 No Joint Venture.
----------------
Nothing contained in this Agreement (i) shall constitute the Servicer and
the Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on either of them or (iii) shall be
deemed to confer on either of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the other.
Section 11.14 Consent to Jurisdiction.
-----------------------
(a) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY COURT IN
THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY
APPELLATE
-101-
COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
TO OR IN CONNECTION WITH THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD OR
DETERMINED IN SUCH NEW YORK STATE COURT OR IN SUCH FEDERAL COURT. THE PARTIES
HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO HEREBY WAIVE AND AGREE NOT TO ASSERT BY WAY OF MOTION,
AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE
SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THE RELATED DOCUMENTS OR THE
SUBJECT MATTER THEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS.
(b) To the extent permitted by applicable law, the parties
hereto shall not seek and hereby waived the right to any review of the judgment
of any such court by any court of any other nation or jurisdiction which may be
called upon to grant an enforcement of such judgment.
(c) The Contract Seller hereby agrees that until such time as
the Certificates and the all amounts due and owing to the Insurer have been paid
in full and the Certificate Insurance Policy has expired in accordance with its
terms, the Contract Seller shall have appointed, with prior written notice to
the Insurer, an agent registered with the Secretary of State of the State of New
York, with an office in the County of New York in the State of New York, as its
true and lawful attorney and duly authorized agent for acceptance of service of
legal process. The Contract Seller agrees that service of such process upon such
Person shall constitute personal service of such process upon it.
Section 11.15 Trial by Jury Waived.
--------------------
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING
DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THIS WAIVER.
-102-
IN WITNESS WHEREOF, GreenPoint and the Trustee have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
By: /s/ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: Vice President
GREENPOINT CREDIT, LLC,
as Contract Seller and Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On December 12, 2000 before me, Trace ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, Notary Public, in
and for the state of California, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, known to
me to be the person whose name is subscribed to the foregoing instrument and
acknowledged that he executed the same in his authorized capacity as Vice
President of GreenPoint Credit, LLC, and that, by his signature on the
instrument the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ Trace ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
-----------------------------------------
Notary Public
My Commission expires August 2, 2003
[Notarial Seal]
STATE OF ILLINOIS )
) ss.
COUNTY OF ▇▇▇▇ )
On this 15 day of December, 2000, before me, ▇▇▇▇▇ ▇▇▇▇, a notary public in
and for said State, appeared ▇. ▇▇▇▇▇▇▇, personally known to me on the basis of
satisfactory evidence to be a Vice President of Bank One, National Association,
a national banking association that executed the within instrument, and also
known to me to be the person who executed it on behalf of such national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------
Notary Public
My Commission expires 6/28/04
[Notarial Seal]
EXHIBIT INDEX
-------------
Schedule I............. Auction Procedures
Exhibit A.............. Contract Schedule
Exhibit B-1............ Form of Class A-1 and Class A-2 Certificates
Exhibit B-2............ Form of Class A-3 Certificate
Exhibit C.............. Form of Reverse of Certificates
Exhibit D.............. Form of Class R Certificate
Exhibit E.............. Form of Certificate Regarding Substitution of Eligible
Substitute Contract
Exhibit F.............. Form of Certificate of Servicing Officer
Exhibit G-1............ Form of Transfer Affidavit
Exhibit G-2............ Form of Transferor Certificate for Class R Certificates
Exhibit G-3............ Form of ERISA Representation Letter
Exhibit H.............. Form of Certificate Insurance Policy
Exhibit I.............. Form of Depository Agreement
Exhibit J.............. Termination Auction Procedures
Exhibit K.............. Notice of Ratings
Exhibit L.............. Form of Swap Agreement
Exhibit M.............. Form of Hedge Agreement
SCHEDULE I
AUCTION PROCEDURES
ARTICLE 1.
Except as otherwise specified herein, or as the context may require, capitalized
terms used but not otherwise defined herein have the meanings ascribed in the
Pooling and Servicing Agreement dated as of December 1, 2000 relating to the
GreenPoint Manufactured Housing Contract Trust Pass-Through Certificates Series
2000-6 (the "Pooling and Servicing Agreement") between Bank One, National
Association, as trustee (the "Trustee") and GreenPoint Credit, LLC, as contract
seller and servicer (in such capacities, the "Contract Seller" and "Servicer").
SECTION 1.1 Definitions.
-----------
"All Hold Rate" means ninety percent (90%) of One-Month LIBOR.
-------------
"Auction" means the implementation of the Auction Procedures on an Auction Date.
-------
"Auction Agent" means Bankers Trust Company, a New York banking corporation, or
-------------
any successor appointed under the Auction Agent Agreement.
"Auction Agent Fee" means the fee paid to the Auction Agent pursuant to the
-----------------
Auction Agent Agreement.
"Auction Date" means the Business Day immediately preceding the first day of
------------
each Interest Accrual Period, commencing in January, 2001, other than:
(i) each Interest Accrual Period commencing after the
ownership of the Class A-3 Certificates is no longer maintained in Book-
Entry Form by the Depository;
(ii) each Interest Accrual Period commencing after and
during the continuance of an Insurer Default; or
(iii) each Interest Accrual Period commencing less than two
Business Days after the cure or waiver of an Insurer Default.
Notwithstanding the foregoing, the Auction Date for one or more Interest Accrual
Periods may be changed pursuant to the Auction Agent Agreement, as described
herein.
"Auction Procedures" means the procedures set forth in Section 2.1.1 hereof by
------------------
which the Auction Rate is determined.
"Auction Rate" means the rate of interest per annum that results from
------------
implementation of the Auction Procedures and is determined as described in
Section 2.1.1(c)(ii) hereof.
Schedule I-1
"Authorized Denominations" means, with respect to the Class A-3 Certificates,
------------------------
$25,000 and integral multiples of $25,000 in excess thereof.
"Available Class A-3 Certificates" has the meaning set forth in Section
--------------------------------
2.1.1(c)(i)(A) hereof.
"Bid" has the meaning set forth in Section 2.1.1(a)(i) hereof.
---
"Bid Auction Rate" has the meaning set forth in Section 2.1.1(c)(i) hereof.
----------------
"Bidder" has the meaning set forth in Section 2.1.1(a)(i) hereof.
------
"Book-Entry Form" or "Book-Entry System" means a form or system under which (i)
--------------- -----------------
the beneficial right to principal and interest may be transferred only through a
book entry, (ii) physical securities in registered form are issued only to a
Depository or its nominee as registered owner, with the securities "immobilized"
to the custody of the Depository, and (iii) the book entry is the record that
identifies the owners of beneficial interests in that principal and interest.
"Broker-Dealer" means Credit Suisse First Boston Corporation or any other broker
-------------
or dealer (each as defined in the Securities Exchange Act of 1934, as amended),
commercial bank or other entity permitted by law to perform the functions
required of a Broker-Dealer set forth in the Auction Procedures that (a) is a
Participant (or an Affiliate of a Participant), has been appointed as such by
the Servicer, with the consent of the Market Agent and (c) has entered into a
Broker-Dealer Agreement that is in effect on the date of reference.
"Broker-Dealer Agreement" means each agreement among the Auction Agent, a
-----------------------
Broker-Dealer and the Holder of the Class R Certificates, pursuant to which the
Broker-Dealer agrees to participate in Auctions as set forth in the Auction
Procedures, as from time to time amended or supplemented. Each Broker-Dealer
Agreement shall be in substantially the form of the Broker-Dealer Agreement to
be entered into as of the Closing Date, among the Auction Agent, Credit Suisse
First Boston Corporation., as Broker-Dealer and GreenPoint Bank, as Holder of
the Class R Certificates.
"Broker-Dealer Fee" means the fee paid to the Broker-Dealer pursuant to any
-----------------
Broker-Dealer Agreement.
"Existing Certificateholder" means with respect to and for the purpose of
--------------------------
dealing with the Auction Agent in connection with an Auction, (i) a Person who
is a Broker-Dealer listed in the Existing Certificateholder Registry at the
close of business on the Business Day immediately preceding such Auction and
(ii) a Person who is a beneficial owner of the Class A-3 Certificates.
"Existing Certificateholder Registry" means the registry of Persons who are
-----------------------------------
owners of the Class A-3 Certificates, maintained by the Auction Agent as
provided in the Auction Agent Agreement.
"Holder of the Class R Certificates" means the Holders of at least a majority
----------------------------------
Percentage Interest in the Class R Certificates.
Schedule I-2
"Hold Order" has the meaning set forth in Section 2.1.1(a)(i) hereof.
----------
"Initial Auction Agent" means Bankers Trust Company, a New York banking
---------------------
corporation, its successors and assigns.
"Initial Auction Agent Agreement" means the Auction Agent Agreement dated as of
-------------------------------
the Closing Date, among the Trustee, the Initial Auction Agent and the Holder of
the Class R Certificates, including any amendment thereof or supplement thereto.
"Market Agent" means Credit Suisse First Boston Corporation, in such capacity
------------
hereunder, or any successor to it in such capacity hereunder.
"Maximum Auction Rate" means (A) One-Month LIBOR plus 1.00% (if the ratings
--------------------
assigned by the Rating Agencies to the Class A-3 Certificates are "AAA" and
"Aaa"), (B) One-Month LIBOR plus 1.25% (if the ratings assigned by the Rating
Agencies to the Class A-3 Certificates are "AA" and "Aa2" or better, unless the
requirements of (A) above are satisfied), (C) One-Month LIBOR plus 2.00% (if the
ratings assigned by the Rating Agencies to the Class A-3 Certificates are "A"
and "A2" or better, unless the requirements of (A) or (B) above are satisfied)
or (D) One-Month LIBOR plus 3.50% (if any one of the ratings assigned by the
Rating Agencies to the Class A-3 Certificates is less than "A" or "A2"). For
purposes of the Auction Agent and the Auction Procedures, the ratings referred
to in this definition shall be the last rating of which the Auction Agent has
been given notice pursuant to the Pooling and Servicing Agreement and the
Auction Agent Agreement.
"One-Month LIBOR" means, as of any LIBOR Determination Date, the rate for
---------------
deposits in United States dollars for a period equal to the relevant Interest
Accrual Period (commencing on the first day of such Interest Accrual Period)
which appears on Telerate Page 3750 as of 11:00 a.m., London time, on such date.
If such rate does not appear on Telerate Page 3750, the rate for that day will
be determined on the basis of the rates at which deposits in United States
dollars are offered by the Reference Banks at approximately 11:00 a.m., London
time, on that day to prime banks in the London interbank market for a period
equal to the relevant Interest Accrual Period (commencing on the first day of
such Interest Accrual Period). The Auction Agent will request the principal
London office of each of the Reference Banks to provide a quotation of its rate.
If at least two such quotations are provided, the rate for that day will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that day will be the arithmetic mean of the rates quoted
by major banks in New York City, selected by the Servicer, at approximately
11:00 a.m., New York City time, on that day for loans in United States dollars
to leading European banks for a period equal to the relevant Interest Accrual
Period (commencing on the first day of such Interest Accrual Period).
"Order" has the meaning set forth in Section 2.1.1(a)(i) hereof.
-----
"Outstanding" means, as of the date of determination, all Class A-3 Certificates
-----------
theretofore authenticated and delivered under the Pooling and Servicing
Agreement except:
Schedule I-3
(i) Class A-3 Certificates theretofore cancelled by the Certificate
Registrar or delivered to the Certificate Registrar for cancellation;
(ii) Class A-3 Certificates or portions thereof the payment for
which money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent in trust for the Certificateholders thereof;
and
(iii) Class A-3 Certificates in exchange for or in lieu of other
Class A-3 Certificates which have been authenticated and delivered pursuant
to the Pooling and Servicing Agreement unless proof satisfactory to the
Trustee is presented that any such Certificates are held by a bona fide
purchaser.
"Participant" means a broker, dealer, bank, other financial institution or other
-----------
Person for whom from time to time the Depository effects Book-Entry transfers
and pledges of securities deposited with the Depository.
"Potential Certificateholder" means any Person (including an Existing
---------------------------
Certificateholder that is (i) a Broker-Dealer when dealing with the Auction
Agent and (ii) a potential beneficial owner when dealing with a Broker-Dealer)
who may be interested in acquiring Class A-3 Certificates (or, in the case of an
Existing Certificateholder thereof, an additional principal amount of Class A-3
Certificates).
"Rate Adjustment Date" means the date on which a Class A-3 Pass-Through Rate is
--------------------
effective, and means, with respect to such Certificate, the date of commencement
of each Interest Accrual Period.
"Rate Determination Date" means the Auction Date, or if no Auction Date is
-----------------------
applicable, the Business Day immediately preceding the date of commencement of
an Interest Accrual Period.
"Sell Order" has the meaning set forth in Section 2.1.1(a)(i) hereof.
----------
"Submission Deadline" means 1:00 p.m., eastern time, on any Auction Date or such
-------------------
other time on any Auction Date by which Broker-Dealers are required to submit
Orders to the Auction Agent as specified by the Auction Agent from time to time.
"Submitted Bid" has the meaning set forth in Section 2.1.1(c)(i) hereof.
-------------
"Submitted Hold Order" has the meaning set forth in Section 2.1.1(c)(i) hereof.
--------------------
"Submitted Order" has the meaning set forth in Section 2.1.1(c)(i) hereof.
---------------
"Submitted Sell Order" has the meaning set forth in Section 2.1.1(c)(i) hereof.
--------------------
"Substitute Auction Agent" means the Person with whom the Trustee enters into a
------------------------
Substitute Auction Agent Agreement.
Schedule I-4
"Substitute Auction Agent Agreement" means an auction agent agreement containing
----------------------------------
terms substantially similar to the terms of the Initial Auction Agent Agreement,
whereby a Person having the qualifications required by Section 2.1.5 of these
Auction Procedures agrees with the Trustee to perform the duties of the Auction
Agent under this Agreement.
"Sufficient Bids" has the meaning set forth in Section 2.1.1(c)(i) hereof.
---------------
SECTION 1.2 General Provisions.
------------------
The Class A-3 Certificates shall bear interest at the Class A-3 Pass-Through
Rate. For each Interest Accrual Period, interest at the Class A-3 Pass-Through
Rate shall accrue daily and shall be computed for the actual number of days
elapsed on the basis of a year consisting of 360 days.
Notwithstanding the foregoing:
(a) if the ownership of the Class A-3 Certificates is no longer
maintained in Book-Entry Form, the Class A-3 Pass-Through Rate for any Interest
Accrual Period commencing after the delivery of certificates representing such
Certificates shall equal the Maximum Auction Rate on the Business Day
immediately preceding the first day of such subsequent Interest Accrual Period;
or
(b) for each Interest Accrual Period commencing after the occurrence
and during the continuance of an Insurer Default and for any Interest Accrual
Period less than two Business Days after the cure of any Insurer Default, the
Class A-3 Pass-Through Rate for any such period shall equal the Maximum Auction
Rate on the Business Day immediately preceding the first day of such subsequent
Interest Accrual Period.
The Auction Agent shall promptly give written notice to the Trustee and the
Depository of the Class A-3 Pass-Through Rate and the Auction Rate when such
rate is not the Class A-3 Pass-Through Rate. The Trustee shall notify the
Certificateholders of the Class A-3 Pass-Through Rate applicable to the Class ▇-
▇ Certificates for each Interest Accrual Period on the second Business Day of
such Interest Accrual Period.
ARTICLE 2.
AUCTION PROCEDURES
SECTION 2.1 Class A-3 Pass-Through Rate.
---------------------------
SECTION 2.1.1 Determining the Class A-3 Pass-Through Rate for the
Class A-3 Certificates.
By purchasing Class A-3 Certificates, whether in an Auction or otherwise, each
purchaser of the Class A-3 Certificates, or its Broker-Dealer, must agree and
shall be deemed by such purchase to have agreed (i) to participate in Auctions
on the terms described herein, (ii) to have its beneficial ownership of the
Class A-3 Certificates maintained at all times in Book-Entry Form for the
Schedule I-5
account of its Participant, which in turn will maintain records of such
beneficial ownership and (iii) to authorize such Participant to disclose to the
Auction Agent such information with respect to such beneficial ownership as the
Auction Agent may request.
So long as the ownership of the Class A-3 Certificates is maintained in Book-
Entry Form, an Existing Certificateholder may sell, transfer or otherwise
dispose of Class A-3 Certificates only pursuant to a Bid or Sell Order placed in
an Auction or otherwise sell, transfer or dispose of Class A-3 Certificates
through a Broker-Dealer, provided that, in the case of all transfers other than
pursuant to Auctions, such Existing Certificateholder, its Broker-Dealer or its
Participant advises the Auction Agent of such transfer. Auctions shall be
conducted on each Auction Date, if there is an Auction Agent on such Auction
Date, in the following manner:
(a) (i) Prior to the Submission Deadline on each Auction Date:
(A) each Existing Certificateholder may submit to a Broker-Dealer
by telephone or otherwise any information as to:
(1) the principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder which such
Existing Certificateholder desires to continue to own without regard
to the Class A-3 Pass-Through Rate for the next succeeding Interest
Accrual Period;
(2) the principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder which such
Existing Certificateholder offers to sell if the Class A-3 Pass-
Through Rate for the next succeeding Interest Accrual Period shall be
less than the rate per annum specified by such Existing
Certificateholder; and/or
(3) the principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder which such
Existing Certificateholder offers to sell without regard to the Class
A-3 Pass-Through Rate for the next succeeding Interest Accrual Period;
and
(B) one or more Broker-Dealers may contact Potential
Certificateholders to determine the principal amount of Class A-3
Certificates which each Potential Certificateholder offers to purchase, if
the Class A-3 Pass-Through Rate for the next succeeding Interest Accrual
Period shall not be less than the rate per annum specified by such
Potential Certificateholder.
The statement of an Existing Certificateholder or a Potential Certificateholder
referred to in (A) or (B) of this paragraph (i) is herein referred to as an
"Order," and each Existing Certificateholder and each Potential
Certificateholder placing an Order is herein referred to as a "Bidder"; an Order
described in clause (A)(1) is herein referred to as a "Hold Order"; an Order
described in clauses (A)(2) and (B) is herein referred to as a "Bid"; and an
Order described in clause (A)(3) is herein referred to as a "Sell Order."
(ii) (A) Subject to the provisions of Section 2.1.1(b)
hereof, a Bid by an Existing Certificateholder shall constitute an
irrevocable offer to sell:
(1) the principal amount of Outstanding Class A-3
Certificates specified in such Bid if the Class A-3 Pass-Through Rate
determined as provided in this Section 2.1.1 shall be less than the
rate specified therein; or
(2) such principal amount, or a lesser principal amount of
Outstanding Class A-3 Certificates to be determined as set forth in
Section 2.1.1 (d)(i)(D) hereof, if the Class A-3 Pass-Through Rate
determined as provided in this Section 2.1.1 shall be equal to the
rate specified therein; or
(3) such principal amount, or a lesser principal amount of
outstanding Class A-3 Certificates to be determined as set forth in
Section 2.1.1(d)(ii)(C) hereof, if the rate specified therein shall be
higher than the Class A-3 Pass-Through Rate and Sufficient Bids have
not been made.
(B) Subject to the provisions of Section 2.1.1 (b) hereof, a Sell
Order by an Existing Certificateholder shall constitute an irrevocable
offer to sell:
(1) the principal amount of Outstanding Class A-3
Certificates specified in such Sell Order; or
(2) such principal amount, or a lesser principal amount of
Outstanding Class A-3 Certificates set forth in Section
2.1.1(d)(ii)(C) hereof, if Sufficient Bids have not been made.
(C) Subject to the provisions of Section 2.1.1(b) hereof, a Bid
by a Potential Certificateholder shall constitute an irrevocable offer to
purchase:
(1) the principal amount of Outstanding Class A-3
Certificates specified in such Bid if the Class A-3 Pass-Through Rate
determined as provided in this Section 2.1.1 shall be higher than the
rate specified in such Bid; or
(2) such principal amount, or a lesser principal amount of
Outstanding Class A-3 Certificates set forth in Section 2.1.1(d)(i)(E)
hereof, if the Class A-3 Pass-Through Rate determined as provided in
this Section 2.1.1 shall be equal to the rate specified in such Bid.
(b) (i) Each Broker-Dealer shall submit in writing to the
Auction Agent prior to the Submission Deadline on each Auction Date all Orders
obtained by such Broker-Dealer and shall specify with respect to each such
Order:
Schedule I-7
(A) the name of the Bidder placing such Order;
(B) the aggregate principal amount of Class A-3
Certificates that are the subject of such Order;
(C) to the extent that such Bidder is an Existing
Certificateholder:
(1) the principal amount of Class A-3
Certificates, if any, subject to any Hold Order placed by such
Existing Certificateholder;
(2) the principal amount of Class A-3
Certificates, if any, subject to any Bid placed by such Existing
Certificateholder and the rate specified in such Bid; and
(3) the principal amount of Class A-3
Certificates, if any, subject to any Sell Order placed by such
Existing Certificateholder;
and
(D) to the extent such Bidder is a Potential
Certificateholder, the rate specified in such Potential Certificateholder's
Bid.
(ii) If any rate specified in any Bid contains more than
three figures to the right of the decimal point, the Auction Agent shall
round such rate up to the next higher one thousandth (.001) of one percent.
(iii) If an Order or Orders covering all Outstanding Class ▇-
▇ Certificates owned by an Existing Certificateholder is not submitted to
the Auction Agent prior to the Submission Deadline, the Auction Agent shall
deem a Hold Order to have been submitted on behalf of such Existing
Certificateholder covering the principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder and not subject to an
Order submitted to the Auction Agent.
(iv) Neither the Servicer, the Trustee nor the Auction Agent
shall be responsible for any failure of a Broker-Dealer to submit an Order
to the Auction Agent on behalf of any Existing Certificateholder or
Potential Certificateholder.
(v) If any Existing Certificateholder submits through a
Broker-Dealer to the Auction Agent one or more Orders covering in the
aggregate more than the principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder, such Orders shall be
considered valid as follows and in the following order of priority:
(A) All Hold Orders shall be considered valid, but
only up to the aggregate principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder, and if the aggregate
principal amount of Class A-3 Certificates
Schedule I-8
subject to such Hold Orders exceeds the aggregate principal amount of Class
A-3 Certificates owned by such Existing Certificateholder, the aggregate
principal amount of Class A-3 Certificates subject to each such Holder
Order shall be reduced pro rata so that the aggregate principal amount of
Class A-3 Certificates subject to such Hold Order equals the aggregate
principal amount of Outstanding Class A-3 Certificates owned by such
Existing Certificateholder.
(B) (1) any Bid shall be considered valid up to an amount
equal to the excess of the principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder over the aggregate
principal amount of Class A-3 Certificates subject to any Hold Order
referred to in clause (A) of this paragraph (v);
(2) subject to subclause (1) of this clause (B), if
more than one Bid with the same rate is submitted on behalf of such
Existing Certificateholder and the aggregate principal amount
Outstanding Class A-3 Certificates subject to such Bids is greater
than such excess, such Bids shall be considered valid up to an amount
equal to such excess;
(3) subject to subclauses (1) and (2) of this clause
(B), if more than one Bid with different rates are submitted on behalf
of such Existing Certificateholder, such Bids shall be considered
valid first in the ascending order of their respective rates until the
highest rate is reached at which such excess exists and then at such
rate up to the amount of such excess; and
(4) in any such event, the amount of the Outstanding
Class A-3 Certificates, if any, subject to Bids not valid under this
clause (B) shall be treated as the subject of a Bid by a Potential
Certificateholder at the rate therein specified; and
(C) All Sell Orders shall be considered valid up to an
amount equal to the excess of the principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder over the aggregate
principal amount of Class A-3 Certificates subject to Hold Orders referred
to in clause (A) of this paragraph (v) and valid Bids referred to in clause
(B) of this paragraph (v).
(vi) If more than one Bid is submitted on behalf of any
Potential Certificateholder, each Bid submitted shall be a separate Bid
with the rate and principal amount therein specified.
(vii) An Existing Certificateholder that offers to purchase
additional Class A-3 Certificates is, for purposes of such offer, treated
as a Potential Certificateholder.
(viii) Any Bid or Sell Order submitted by an Existing
Certificateholder covering an aggregate principal amount of Class A-3
Certificates not equal to an Authorized Denomination shall be rejected and
shall be deemed a Hold Order. Any Bid
Schedule I-9
submitted by a Potential Certificateholder covering an aggregate principal
amount of Class A-3 Certificates not equal to an Authorized Denomination
shall be rejected.
(ix) Any Bid specifying a rate higher than the Maximum Auction
Rate will (a) be treated as a Sell Order if submitted by an Existing
Certificateholder and (b) not be accepted if submitted by a Potential
Certificateholder.
(x) Any Order submitted in an Auction by a Broker-Dealer to the
Auction Agent at the Submission Deadline on any Auction Date shall be
irrevocable.
(c) (i) Not earlier than the Submission Deadline on each Auction
Date, the Auction Agent shall assemble all valid Orders submitted or deemed
submitted to it by the Broker-Dealers (each such Order as submitted or deemed
submitted by a Broker-Dealer being herein referred to individually as a
"Submitted Hold Order," a "Submitted Bid" or a "Submitted Sell Order," as the
case may be, or as a "Submitted Order," and collectively as "Submitted Hold
Orders," "Submitted Bids" or "Submitted Sell Orders," as the case may be, or as
"Submitted Orders") and shall determine:
(A) the excess of the total principal amount of Outstanding Class
A-3 Certificates over the sum of the aggregate principal amount of
Outstanding Class A-3 Certificates subject to Submitted Hold Orders (such
excess being herein referred to as the "Available Class A-3 Certificates"
of such Class), and
(B) from the Submitted Orders whether:
(1) the aggregate principal amount of Outstanding Class A-3
Certificates subject to Submitted Bids by Potential Certificateholders
specifying one or more rates equal to or lower than the Maximum
Auction Rate;
exceeds or is equal to the sum of:
(2) the aggregate principal amount of Outstanding Class A-3
Certificates subject to Submitted Bids by Existing Certificateholders
specifying one or more rates higher than the Maximum Auction Rate; and
(3) the aggregate principal amount of Outstanding Class A-3
Certificates subject to submitted Sell Orders;
(in the event such excess or such equality exists, other than because all of the
Outstanding Class A-3 Certificates are subject to Submitted Hold Orders, such
Submitted Bids described in subclause (1) above shall be referred to
collectively as "Sufficient Bids"); and
(C) if Sufficient Bids exist, the "Bid Auction Rate", which shall
be the lowest rate specified in such Submitted Bids such that if:
(1) (x) each Submitted Bid from Existing Certificateholders
specifying such lowest rate and (y) all other Submitted Bids
Schedule I-10
from Existing Certificateholders specifying lower rates were rejected,
thus entitling such Existing Certificateholders to continue to own the
principal amount of Class A-3 Certificates subject to such Submitted
Bids; and
(2) (x) each such Submitted Bid from Potential
Certificateholders specifying such lowest rate and (y) all other
Submitted Bids from Potential Certificateholders specifying lower
rates were accepted;
the result would be that such Existing Certificateholders described in subclause
(1) above would continue to own an aggregate principal amount of Outstanding
Class A-3 Certificates which, when added to the aggregate principal amount of
Outstanding Class A-3 Certificates to be purchased by such Potential
Certificateholders described in subclause (2) above, would equal not less than
the Available Class A-3 Certificates.
(ii) Promptly after the Auction Agent has made the
determinations pursuant to Section 2.1.1(c)(i) hereof, the Auction Agent
shall advise the Trustee of the Maximum Auction Rate and the All Hold Rate
and the components thereof on the Auction Date and, based on such
determinations, the Auction Rate for the next succeeding Interest Accrual
Period as follows:
(A) if Sufficient Bids exist, that the Auction Rate for the
next succeeding Interest Accrual Period shall be equal to the Bid Auction
Rate so determined;
(B) if Sufficient Bids do not exist (other than because all
of the Outstanding Class A-3 Certificates are subject to Submitted Hold
Orders), that the Auction Rate for the next succeeding Interest Accrual
Period shall be equal to the Maximum Auction Rate;
(C) if all Outstanding Class A-3 Certificates are subject
to Submitted Hold Orders, that the Auction Rate for the next succeeding
Interest Accrual Period shall be equal to the All Hold Rate; or
(D) if a scheduled Auction is not being held for any
reason, the Auction Rate for the next succeeding Interest Accrual Period
shall be equal to the Maximum Auction Rate.
(iii) Promptly after the Auction Agent has determined the
Auction Rate, the Auction Agent shall determine and advise the Trustee of
the applicable Class A-3 Pass-Through Rate, which rate shall be the Auction
Rate.
(d) Existing Certificateholders shall continue to own the principal
amount of Class A-3 Certificates that are subject to Submitted Hold Orders. If
Sufficient Bids have been received by the Auction Agent, the Bid Auction Rate
will be the Class A-3 Pass-Through Rate, and Submitted Bids and Submitted Sell
Orders will be accepted or rejected and the Auction Agent will take such other
action as described below in subparagraph (i).
Schedule I-11
If the Auction Agent has not received Sufficient Bids (other than
because all of the Outstanding Class A-3 Certificates of such Class are subject
to Submitted Hold Orders), the Class A-3 Pass-Through Rate will be the Maximum
Auction Rate. In any of the cases described above, Submitted Orders will be
accepted or rejected and the Auction Agent will take such other action as
described below in subparagraph (ii).
(i) if Sufficient Bids have been made, all Submitted Sell Orders
shall be accepted and, subject to the provisions of paragraphs (iv) and (v)
of this Section 2.1.1(d), Submitted Bids shall be accepted or rejected as
follows in the following order of priority, and all other Submitted Bids
shall be rejected:
(A) Existing Certificateholders' Submitted Bids specifying
any rate that is higher than the Class A-3 Pass-Through Rate shall be
accepted, thus requiring each such Existing Certificateholder to sell to
aggregate principal amount of Class A-3 Certificates subject to such
Submitted Bids;
(B) Existing Certificateholders' Submitted Bids specifying
any rate that is lower than the Class A-3 Pass-Through Rate shall be
rejected, thus entitling each such Existing Certificateholder to continue
to own the aggregate principal amount of Class A-3 Certificates subject to
such Submitted Bids;
(C) Potential Certificateholders' Submitted Bids specifying
any rate that is lower than the Class A-3 Pass-Through Rate shall be
accepted;
(D) Each Existing Certificateholders' Submitted Bid
specifying a rate that is equal to the Class A-3 Pass-Through Rate shall be
rejected, thus entitling such Existing Certificateholder to continue to own
the aggregate principal amount of Class A-3 Certificates subject to such
Submitted Bid, unless the aggregate principal amount of Outstanding Class
3 Certificates subject to all such Submitted Bids shall be greater than the
principal amount of Class A-3 Certificates (the "remaining principal
amount") equal to the excess of the Available Class A-3 Certificates over
the aggregate principal amount of Class A-3 Certificates of such Class
subject to Submitted Bids described in clauses (B) and (C) of this Section
2.1.1(d)(i), in which event such Submitted Bid of such Existing
Certificateholder shall be rejected in part, and such Existing
Certificateholder shall be entitled to continue to own the principal amount
of such Class A-3 Certificates subject to such Submitted Bid, but only in
an amount equal to the aggregate principal amount of Class A-3 Certificates
obtained by multiplying the remaining principal amount by a fraction, the
numerator of which shall be the principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder subject to such
Submitted Bid and the denominator of which shall be the sum of the
principal amount of Outstanding Class A-3 Certificates subject to such
Submitted Bids made by all such Existing Certificateholders that specified
a rate equal to the Class A-3 Pass-Through Rate; and
(E) Each Potential Certificateholder's Submitted Bid
specifying a rate that is equal to the Class A-3 Pass-Through Rate shall be
accepted, but
Schedule I-12
only in an amount equal to the principal amount of Class A-3 Certificates
obtained by multiplying the excess of the aggregate principal amount of
Available Class A-3 Certificates over the aggregate principal amount of
Class A-3 Certificates of such Class subject to Submitted Bids described in
clauses (B), (C) and (D) of this Section 2.1.1 (d)(i) by a fraction the
numerator of which shall be the aggregate principal amount of Outstanding
Class A-3 Certificates subject to such Submitted Bid and the denominator of
which shall be the sum of the principal amount of Outstanding Class A-3
Certificates subject to Submitted Bids made by all such Potential
Certificateholders that specified a rate equal to the Class A-3 Pass-
Through Rate.
(ii) If Sufficient Bids have not been made (other than because
all of the Outstanding Class A-3 Certificates of the applicable Class are
subject to submitted Hold Orders), Submitted Orders shall be accepted or
rejected as follows in the following order of priority and all other
Submitted Bids shall be rejected:
(A) Existing Certificateholders' Submitted Bids specifying
any rate that is equal to or lower than the Class A-3 Pass-Through Rate
shall be rejected, thus entitling such Existing Certificateholders to
continue to own the aggregate principal amount of Class A-3 Certificates
subject to such Submitted Bids;
(B) Potential Certificateholders' Submitted Bids specifying
(1) any rate that is equal to or lower than the Class A-3 Pass-Through Rate
shall be accepted and (2) any rate that is higher than the Class A-3 Pass-
Through Rate shall be rejected; and
(C) Each Existing Certificateholder's Submitted Bid
specifying any rate that is higher than the Class A-3 Pass-Through Rate and
the Submitted Sell Order of each Existing Certificateholder shall be
accepted, thus entitling each Existing Certificateholder that submitted any
such Submitted Bid or Submitted Sell Order to sell the Class A-3
Certificates subject to such Submitted Bid or Submitted Sell Order, but in
both cases only in an amount equal to the aggregate principal amount of
Class A-3 Certificates obtained by multiplying the aggregate principal
amount of Class A-3 Certificates subject to Submitted Bids described in
clause (B) of this Section 2.1.1 (d)(ii) by a fraction the numerator of
which shall be the aggregate principal amount of Outstanding Class A-3
Certificates owned by such Existing Certificateholder subject to such
submitted Bid or Submitted Sell Order and the denominator of which shall be
the aggregate principal amount of Outstanding Class A-3 Certificates
subject to all such Submitted Bids and Submitted Sell Orders.
(iii) If all Outstanding Class A-3 Certificates are subject
to Submitted Hold Orders, all Submitted Bids shall be rejected.
(iv) If, as a result of the procedures described in paragraph
(i) or (ii) of this Section 2.1.1(d), any Existing Certificateholder would
be entitled or required to sell, or any Potential Certificateholder would
be entitled or required to purchase, a principal amount of Class A-3
Certificates that is not equal to an Authorized Denomination, the Auction
Agent shall, in such manner as in its sole discretion it shall determine,
round up
Schedule I-13
or down the principal amount of Class A-3 Certificates to be
purchased or sold by any Existing Certificateholder or Potential
Certificateholder so that the principal amount of Class A-3 Certificates
purchased or sold by each Existing Certificateholder or Potential
Certificateholder shall be equal to an Authorized Denomination or an
integral multiple of $25,000 in excess thereof.
(v) If, as a result of the procedures described in paragraph
(ii) of this Section 2.1.1(d), any Potential Certificateholder would be
entitled or required to purchase less than an Authorized Denomination of
Class A-3 Certificates, the Auction Agent shall, in such manner as in its
sole discretion it shall determine, allocate Class A-3 Certificates for
purchase among Potential Certificateholders so that only Class A-3
Certificates in Authorized Denominations or integral multiples of $25,000
in excess thereof are purchased by any Potential Certificateholder, even if
such allocation results in one or more of such Potential Certificateholders
not purchasing any Class A-3 Certificates.
(e) Based on the result of each Auction, the Auction Agent shall
determine the aggregate principal amount of Class A-3 Certificates to be
purchased and the aggregate principal amount of Class A-3 Certificates to be
sold by Potential Certificateholders and Existing Certificateholders on whose
behalf each Broker-Dealer submitted Bids or Sell Orders and, with respect to
each Broker-Dealer, to the extent that such aggregate principal amount of Class
A-3 Certificates to be sold differs from such aggregate principal amount of
Class A-3 Certificates of the applicable Class to be purchased, determine to
which other Broker-Dealer or Broker-Dealers acting for one or more purchasers
such Broker-Dealer shall deliver, or from which other Broker-Dealer or Broker-
Dealers acting for one or more sellers such Broker-Dealer shall receive, as the
case may be, Class A-3 Certificates.
(f) Any calculation by the Auction Agent, the Servicer or the
Trustee, as applicable, of the Class A-3 Pass-Through Rate, One-Month LIBOR, the
Maximum Auction Rate and the All Hold Rate shall, in the absence of manifest
error, be binding on all other parties.
SECTION 2.1.2 Auction Agent Fees and Expenses.
The Auction Agent Fee will be paid by the Holder of the Class R
Certificates pursuant to the Auction Agent Agreement.
SECTION 2.1.3 Calculation of Maximum Auction Rate, All Hold Rate
and One-Month LIBOR.
The Auction Agent shall calculate the Maximum Auction Rate, the All Hold Rate
and One-Month LIBOR, on each Auction Date and shall notify the Trustee, the
Servicer and the Broker-Dealers of the Maximum Auction Rate, the All Hold Rate
and One-Month LIBOR, as provided in the Auction Agent Agreement. If the
ownership of the Class A-3 Certificates is no longer maintained in Book-Entry
Form by the Depository, the Trustee shall calculate the Maximum Auction Rate on
the Business Day immediately preceding the first day of each Interest Accrual
Period commencing after the delivery of certificates representing the Class A-3
Certificates. The Auction Agent shall determine One-Month LIBOR for each
Interest Accrual Period other than
Schedule I-14
the Initial Period; provided, that if the ownership of the Class A-3
Certificates is no longer maintained in Book-Entry Form, then the Trustee shall
determine One-Month LIBOR for each such Interest Accrual Period. The
determination by the Trustee or the Auction Agent, as the case may be, of One-
Month LIBOR shall (in the absence of manifest error) be final and binding upon
all parties.
SECTION 2.1.4 Notification of Rates, Amounts and Remittance Dates.
Promptly after the Closing Date and after the beginning of each subsequent
Interest Accrual Period and in any event at least 10 days prior to any
Distribution Date, the Trustee shall confirm with the Auction Agent, so long as
the ownership of the Class A-3 Certificates is maintained in Book-Entry Form by
the Depository the date of such next Distribution Date.
If any day scheduled to be a Distribution Date shall be changed after the
Trustee shall have given the notice or confirmation referred to in the preceding
sentence, the Trustee shall, not later than 9:15 a.m., eastern time, on the
Business Day next preceding the earlier of the new Distribution Date or the old
Distribution Date, by such means as the Trustee deems practicable, give notice
of such change to the Auction Agent and the Depository, so long as the ownership
of the Class A-3 Certificates is maintained in Book-Entry Form by the
Depository.
SECTION 2.1.5 Auction Agent.
(a) Bankers Trust Company is hereby appointed as Initial Auction Agent
to serve as agent for the Trustee in connection with Auctions. The Trustee will
enter into the Initial Auction Agent Agreement with Bankers Trust Company, as
the Initial Auction Agent. Any Substitute Auction Agent shall be (i) a bank,
national banking association or trust company duly organized under the laws of
the United States of America or any state or territory thereof having its
principal place of business in the Borough of Manhattan, New York, or such other
location as approved by the Trustee and the Market Agent in writing and having a
combined capital stock or surplus of at least $50,000,000, or (ii) a member of
the National Association of Securities Dealers, Inc., having a capitalization of
at least $50,000,000, and, in either case, authorized by law to perform all the
duties imposed upon it hereunder and under the Auction Agent Agreement and
approved by the Insurer in writing. The Auction Agent may at any time resign
and be discharged of the duties and obligations created by these Auction
Procedures by giving at least 90 days' notice to the Trustee, the Insurer, the
Class R Certificateholders, the Servicer and the Market Agent. The Auction
Agent may be removed at any time by the Trustee upon the written direction of
the Insurer, or, with the written consent of the Insurer, the Certificateholders
of 66-2/3% of the aggregate principal amount of the Class A-3 Certificates then
Outstanding, and if by such Certificateholders, by an instrument signed by the
Insurer or such Certificateholders or their attorneys and filed with the Auction
Agent, the Servicer, the Class R Certificateholders, the Market Agent and the
Trustee upon at least 90 days' notice. Neither resignation nor removal of the
Auction Agent pursuant to the preceding two sentences shall be effective until
and unless a Substitute Auction Agent has been appointed, has been approved in
writing by the Insurer and has accepted such appointment. If required by the
Insurer, the Certificateholders of 66-2/3% of the aggregate principal amount of
the Class A-3 Certificates then outstanding or by the Market
Schedule I-15
Agent, a Substitute Auction Agent Agreement shall be entered into with a
Substitute Auction Agent. Notwithstanding the foregoing, the Auction Agent may
terminate the Auction Agent Agreement if, within 25 days after notifying the
Trustee, the Insurer, the Servicer, the Holder of the Class R Certificates and
the Market Agent in writing that it has not received payment of any Auction
Agent Fee due it in accordance with the terms of the Auction Agent Agreement,
the Auction Agent does not receive such payment.
(b) If the Auction Agent shall resign or be removed or be dissolved,
or if the property or affairs of the Auction Agent shall be taken under the
control of any state or federal court or administrative body because of
bankruptcy or insolvency, or for any other reason, the Trustee (after receipt of
a certificate from the Market Agent confirming that any proposed Substitute
Auction Agent meets the requirements described in the immediately preceding
paragraph) shall use its best efforts to appoint a Substitute Auction Agent.
(c) The Auction Agent is acting as agent for the Trustee in connection
with Auctions. In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken, suffered or omitted in
good faith or for any error of judgment made by it in the performance of its
duties under the Auction Agent Agreement. The Auction Agent shall not be liable
for any error of judgment made in good faith unless the Auction Agent shall have
been negligent in ascertaining the pertinent facts.
SECTION 2.1.6 Broker-Dealers.
(a) The Auction Agent will enter into a Broker-Dealer Agreement with
Credit Suisse First Boston Corporation ("Credit Suisse") as the initial Broker-
Dealer. The Servicer may, from time to time, approve one or more additional
persons to serve as Broker-Dealers under Broker-Dealer Agreements and shall be
responsible for providing such Broker-Dealer Agreements to the Trustee and the
Auction Agent, provided, however that while Credit Suisse is serving as the
Market Agent, Credit Suisse shall have the right to consent to the approval of
any additional Broker-Dealers, which consent will not be unreasonably withheld.
The Auction Agent shall have entered into a Broker-Dealer Agreement with each
Broker-Dealer prior to the participation of any such Broker-Dealer in any
Auction.
(b) Any Broker-Dealer may be removed at any time, at the request of
the Servicer, but there shall, at all times, be at least one Broker-Dealer
appointed and acting as such.
SECTION 2.1.7 Changes in the Auction Date.
The Market Agent may specify an earlier or later Auction Date (but in no event
more than five Business Days earlier or later) than the Auction Date that would
otherwise be determined in accordance with the definition of "Auction Date" in
Article 1 of these Auction Procedures with respect to one or more specified
Interest Accrual Periods in order to conform with then current market practice
with respect to similar securities or to accommodate economic and financial
factors that may affect or be relevant to the day of the week constituting an
Auction Date and the Class A-3 Pass-Through Rate. The Market Agent shall
provide notice of its determination to specify an earlier or later Auction Date
for one or more Interest Accrual Periods by means of a
Schedule I-16
written notice delivered at least 10 days prior to the proposed changed Auction
Date to the Trustee, the Auction Agent, the Servicer and the Depository.
In connection with any change described in this Section 2.1.7, the Auction Agent
shall provide such further notice to such parties as is specified in Section 2.5
of the Auction Agent Agreement.
SECTION 2.2 Additional Provisions Regarding the Class A-3 Pass-
--------------------------------------------------
Through Rates on the Class A-3 Certificates.
-------------------------------------------
The determination of a Class A-3 Pass-Through Rate by the Auction Agent, the
Trustee or any other Person pursuant to the provisions of the applicable Section
of this Article 2 shall be conclusive and binding on the Certificateholders of
Class A-3 Certificates to which such Class A-3 Pass-Through Rate applies, and
the Trustee may rely thereon for all purposes.
In no event shall the cumulative amount of interest paid or payable on the Class
A-3 Certificates (including interest calculated as provided herein, plus any
other amounts that constitute interest on the Class A-3 Certificates under
applicable law, which are contracted for, charged, reserved, taken or received
pursuant to the Class A-3 Certificates or related documents) calculated from the
date of issuance of the Class A-3 Certificates through any subsequent day during
the term of the Auction Rate or otherwise prior to payment in full of the Class
A-3 Certificates exceed the amount permitted by applicable law. If the
applicable law is ever judicially interpreted so as to render usurious any
amount called for under the Class A-3 Certificates or related documents or
otherwise contracted for, charged, reserved, taken or received in connection
with the Class A-3 Certificates, or if the acceleration of the maturity of the
Class A-3 Certificates results in payment to or receipt by the Certificateholder
or any former Certificateholder of the Class A-3 Certificates of any interest in
excess of that permitted by applicable law, then, notwithstanding any provision
of the Class A-3 Certificates or related documents to the contrary, all excess
amounts theretofore paid or received with respect to the Class A-3 Certificates
shall be credited on the principal balance of the Class A-3 Certificates (or, if
the Class A-3 Certificates have been paid or would thereby be paid in full,
refunded by the recipient thereof), and the provisions of the Class A-3
Certificates and related documents shall automatically and immediately be deemed
reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for under the Class A-3 Certificates and under the
related documents.
SECTION 2.3 Qualifications of Market Agent.
------------------------------
The Market Agent shall be a member of the National Association of Securities
Dealers, Inc., have a capitalization of at least $50,000,000 and be authorized
by law to perform all the duties imposed upon it by these Auction Procedures.
The Market Agent may resign and be discharged of the duties and obligations
created by these Auction Procedures by giving at least 30 days' notice to the
Trustee, the Auction Agent and the Servicer, provided that such resignation
shall not be effective until the appointment of a successor market agent by the
Servicer and the acceptance of such appointment by such successor market agent.
The Market Agent may be replaced at the direction of the Servicer, by an
instrument signed by an officer of the Servicer,
Schedule I-17
filed with the Market Agent and the Trustee at least 30 days before the
effective date of such replacement, provided that such replacement shall not be
effective until the appointment of a successor market agent by the Servicer and
the acceptance of such appointment by such successor market agent.
In the event that the Market Agent shall be removed or be dissolved, or if the
property or affairs of the Market Agent shall be taken under the control of any
state or federal court or administrative body because of bankruptcy or
insolvency, or for any other reason, and there is no Market Agent and the
Servicer shall not have appointed its successor as Market Agent, the Trustee,
notwithstanding the provisions of the first paragraph of this Section, shall be
deemed to be the Market Agent for all purposes of these Auction Procedures until
the appointment by the Servicer of the successor Market Agent. Nothing in this
Section shall be construed as conferring on the Trustee additional duties other
than as set forth herein.
Schedule I-18
EXHIBIT A
CONTRACT SCHEDULE
(A copy can be obtain from the Trustee upon written request)
Exhibit ▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS [A-1] [A-2] CERTIFICATE
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 SUCH OTHER NAME AS IS
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO
SECTION 6.02(b) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CONTRACT SELLER, THE SERVICER AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE CONTRACT
SELLER, THE SERVICER OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION
TO THOSE UNDERTAKEN IN THE AGREEMENT.
NOTWITHSTANDING THE ABOVE, WITH RESPECT TO THE TRANSFER OF THIS CERTIFICATE TO A
DEPOSITORY OR ANY SUBSEQUENT TRANSFER OF ANY INTEREST IN THIS CERTIFICATE FOR SO
LONG AS THIS CERTIFICATE IS HELD BY A DEPOSITORY, (I) NEITHER AN OPINION OF
COUNSEL NOR A CERTIFICATION, EACH AS DESCRIBED IN THE FOREGOING PARAGRAPH, SHALL
BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS SHALL APPLY:
1. THE TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE
REPRESENTED BY VIRTUE OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE
(OR INTEREST HEREIN) THAT EITHER (A) SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
Exhibit B-1-1
PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (A "PLAN"), OR ANY
OTHER PERSON (INCLUDING AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A
TRUSTEE OF ANY PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR
PURCHASING ANY CERTIFICATE WITH "PLAN ASSETS" OF ANY PLAN (A "PLAN
INVESTOR"); AND
2. IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR
HELD IN VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN
THE LAST PRECEDING TRANSFEREE THAT IS NOT A PLAN INVESTOR SHALL BE
RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS
AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER
OF THIS CERTIFICATE. THE TRUSTEE SHALL BE UNDER NO LIABILITY TO ANY
PERSON FOR MAKING ANY PAYMENTS DUE ON THIS CERTIFICATE TO SUCH
PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE
(OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS IN SECTION
6.02 OF THE POOLING AND SERVICING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS
THE TRUSTEE, THE SERVICER, THE CONTRACT SELLER AND THE TRUST FUND FROM AND
AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH
PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
Certificate No. : [A-1], [A-2]
Date of Pooling and Servicing Agreement : December 1, 2000
Cut-Off Date : November 30, 2000
First Distribution Date : January 22, 2001
Initial Certificate Balance of $[_______]
this Certificate ("Denomination") :
Initial Certificate Balance of all
Class [A-1] [A-2] Certificates : $[_________]
Pass-Through Rate : LIBOR plus [___]%
Month of Last Scheduled
Distribution Date : [ ] [ ]
CUSIP : [___________]
Exhibit B-1-2
GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2000-6
evidencing a percentage interest in any distributions allocable to the
Class [A-1] [A-2] Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional manufactured housing contracts (the
"Contracts") formed and sold by
GreenPoint Credit, LLC (the "Contract Seller")
which manufactured housing contracts were originated or acquired by Contract
Seller, and are initially serviced by GreenPoint Credit, LLC (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by the Contract Seller, the Servicer or the
Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class [A-1] [A-2]
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Seller. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of December
1, 2000 (the "Agreement"), between GreenPoint Credit, LLC, as Contract Seller
and Servicer, and Bank One, National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
21/st/ day of each month or, if such 21/st/ day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class [A-1] [A-2] Distribution Amount on such Distribution
Date pursuant to Section 5.02 of the Agreement. The Record Date applicable to
each Distribution Date is the close of business on the day preceding such
Distribution Date. Distributions to the Holder of this Class [A-1] [A-2]
Certificate shall be applied first to interest and then to principal.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class [A-1] [A-
2] Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check
Exhoibit B-1-3
mailed by first class mail to the address of such Certificateholder appearing in
the Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such Certificate
at the Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _________________
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
By __________________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] Certificates
referred to in the within-named Agreement
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
By __________________________________________________
Authorized Signatory
Exhibit ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-3 CERTIFICATE
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 SUCH OTHER NAME AS IS
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO
SECTION 6.02(b) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CONTRACT SELLER, THE SERVICER AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE CONTRACT
SELLER, THE SERVICER OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION
TO THOSE UNDERTAKEN IN THE AGREEMENT.
NOTWITHSTANDING THE ABOVE, WITH RESPECT TO THE TRANSFER OF THIS CERTIFICATE TO A
DEPOSITORY OR ANY SUBSEQUENT TRANSFER OF ANY INTEREST IN THIS CERTIFICATE FOR SO
LONG AS THIS CERTIFICATE IS HELD BY A DEPOSITORY, (I) NEITHER AN OPINION OF
COUNSEL NOR A CERTIFICATION, EACH AS DESCRIBED IN THE FOREGOING PARAGRAPH, SHALL
BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS SHALL APPLY:
1. THE TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE
REPRESENTED BY VIRTUE OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR
INTEREST HEREIN) THAT EITHER (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
Exhibit B-2-1
PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE (A "PLAN"), OR ANY OTHER
PERSON (INCLUDING AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF
ANY PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR PURCHASING ANY
CERTIFICATE WITH "PLAN ASSETS" OF ANY PLAN (A "PLAN INVESTOR"); AND
2. IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD
IN VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE LAST
PRECEDING TRANSFEREE THAT IS NOT A PLAN INVESTOR SHALL BE RESTORED, TO THE
EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER
THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER OF THIS CERTIFICATE. THE
TRUSTEE SHALL BE UNDER NO LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS
DUE ON THIS CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE
(OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS IN SECTION
6.02 OF THE POOLING AND SERVICING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS
THE TRUSTEE, THE SERVICER, THE CONTRACT SELLER AND THE TRUST FUND FROM AND
AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH
PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
Date of Pooling and Servicing Agreement : December 1, 2000
Cut-Off Date : November 30, 2000
First Distribution Date : January 22, 2001
Initial Certificate Balance of
this Certificate ("Denomination") : $[_____________]
Initial Certificate Balance of all
Class A-3 Certificates : $[_____________]
Pass-Through Rate : Auction Rate
Month of Last Scheduled [ ]
Distribution Date :
CUSIP : [____________]
Exhibit B-2-2
GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2000-6
evidencing a percentage interest in any distributions allocable to the
Class A-3 Certificates with respect to a Trust Fund consisting primarily of
a pool of conventional manufactured housing contracts (the "Contracts")
formed and sold by
GreenPoint Credit, LLC (the "Contract Seller")
which manufactured housing contracts were originated or acquired by Contract
Seller, and are initially serviced by GreenPoint Credit, LLC (the "Servicer").
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. Neither this Certificate nor the
Contracts are insured or guaranteed by the Contract Seller, the Servicer or the
Trustee referred to below or any of their respective Affiliates or by any
governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Class A-3
Certificates) in certain monthly distributions with respect to a Trust Fund
consisting of the Contracts deposited by the Contract Seller. The Trust Fund
was created pursuant to a Pooling and Servicing Agreement, dated as of December
1, 2000 (the "Agreement"), between GreenPoint Credit, LLC, as Contract Seller
and Servicer, and Bank One, National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
21st day of each month or, if such the 21st day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the Class A-3 Distribution Amount on such Distribution Date
pursuant to Section 5.02 of the Agreement. The Record Date applicable to each
Distribution Date is the close of business on the day preceding such
Distribution Date. Distributions to the Holder of this Class A-3 Certificate
shall be applied first to interest and then to principal.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold Class A-3
Certificates evidencing a Percentage Interest aggregating 10% or more or, if
not, by check mailed
Exhibit B-2-3
by first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: __________________
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
By ___________________________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates
referred to in the within-named Agreement
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
By _________________________________________
Authorized Signatory
Exhibit B-2-4
EXHIBIT C
FORM OF REVERSE OF CERTIFICATES
GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2000-6
This Certificate is one of a duly authorized issue of Certificates
designated as GreenPoint Credit Manufactured Housing Contract Trust Pass-Through
Certificates, Series 2000-6 issued in four Classes (Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class
A-3 and Class R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest, as described in the Agreement, in
(i) the related Contracts, (ii) the distributions thereon on or after the Cut-
Off Date (to the extent described herein), and (iii) the Certificate Account and
such assets as are deposited therein from time to time and any investments
thereof, together, in each case, with any and all income, proceeds and payments
with respect thereto.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Contract Seller, the Servicer, the Insurer and the Trustee with the
consent of the Holders of a Majority In Interest of each Class of Regular
Certificates affected by such amendment. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
No transfer of this Certificate will be made unless the Trustee has
received either (i) an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee, the Contract Seller and the Servicer with
respect to the permissibility of such transfer under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and Section 4975 of the
Internal Revenue Code (the "Code") and stating, among other things, that the
transferee's acquisition of this Certificate will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code and will not subject the Contract Seller, the Servicer or the Trustee
to any obligation or liability in addition to those undertaken in
Exhibit C-1
the Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating that the transferee is not an employee benefit or other plan
subject to the prohibited transaction provisions of ERISA or Section 4975 of the
Code (a "Plan"), or any other person (including an investment manager, a named
fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of
or purchasing any Certificate with "plan assets" of any Plan (a "Plan
Investor").
Notwithstanding the above, with respect to the transfer of this certificate
to a depository or any subsequent transfer of any interest in this certificate
for so long as this certificate is held by a depository, (i) neither an opinion
of counsel nor a certification, each as described in the foregoing paragraph,
shall be required, and (ii) the following conditions shall apply:
1. Any transferee of this certificate will be deemed to have
represented by virtue of its purchase or holding of this certificate (or
interest herein) that such transferee is not a Plan Investor; and
2. If this certificate (or any interest herein) is acquired or held
in violation of the provisions of the preceding paragraph, then the last
preceding transferee that is not a plan investor shall be restored, to the
extent permitted by law, to all rights and obligations as certificate owner
thereof retroactive to the date of such transfer of this certificate. The
trustee shall be under no liability to any person for making any payments
due on this certificate to such preceding transferee.
Any purported certificate owner whose acquisition or holding of this
certificate (or interest herein) was effected in violation of the restrictions
in section 6.02 of the pooling and servicing agreement shall indemnify and hold
harmless the trustee, the servicer, the contract seller and the trust fund from
and against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
Exhibit C-2
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Contract Seller, the Servicer and the Trustee and any agent of the
Contract Seller, the Servicer or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
of the Contract Seller, the Servicer, the Trustee, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the Pool Scheduled Principal Balance is
less than or equal to 10% of the Cut-Off Date Pool Principal Balance, the
Servicer will have the option to repurchase, upon giving notice mailed no later
than the 10th day of the month next preceding the month of the exercise of such
option, all Outstanding Contracts at a price equal to the greater of (a) the sum
of (x) 100% of the Scheduled Principal Balance of each Contract (other than any
Contract as to which the related Manufactured Home has been acquired and not yet
disposed of and whose fair market value is included pursuant to clause (y)
below) as of the final Distribution Date, and (y) the fair market value of such
acquired property (as determined by the Servicer as of the close of business on
the third Business Day next preceding the date upon which notice of any such
termination is furnished to Certificateholders pursuant to Section 10.01(c)(i)
of the Agreement), and (b) the aggregate fair market value (as determined by the
Servicer as of the close of business on such third Business Day) of all the
assets in the Trust Fund, plus, in the case of both clause (a) and clause (b),
an amount sufficient to pay any Class A-1 Unpaid Interest Shortfall, Class A-2
Unpaid Interest Shortfall, Class A-3 Unpaid Interest Shortfall and the
remittance of all funds due hereunder; provided, however, that if any
-------- -------
Enhancement Payment has been made and not yet reimbursed, the Servicer may only
exercise this option with the consent of the Insurer, provided, further, that
-------- -------
the Servicer may only exercise this option with the consent of the Hedge
Counterparty,, provided, further, that if any Swap Amounts have been made and
-------- -------
not yet reimbursed, the Servicer may only exercise this option with the consent
of the Swap Provider, provided, further, that the purchase price of such
-------- -------
Contracts shall in no event be less than the Minimum Termination Amount as of
the Distribution Date on which the Servicer purchases such Contracts.
On any Distribution Date on which the Pool Scheduled Principal Balance is
less than or equal to 10% of the Cut-Off Date Pool Principal Balance, the
Servicer may request that the Trustee conduct an auction (a "Termination
Auction") by soliciting bids for the purchase of all Contracts remaining in the
Trust Fund, and in any event, if the Servicer has not exercised the option
described in the preceding paragraph within ninety days following the
Distribution Date as of which the Pool Scheduled Principal Balance is less than
10% of the Cut-Off Date Pool Principal Balance, the Trustee shall conduct such
termination auction. In the event that satisfactory bids are received as
described in the Agreement, the net sale proceeds will be distributed to
Certificateholders, in the same order of priority as collections received in
respect of the Contracts. A satisfactory bid is one in which the purchase price
of the Contracts then outstanding is at least equal to the Minimum Termination
Amount (as hereinafter defined) plus any unreimbursed Enhancement Payment, plus
any amounts owing to the Hedge Counterparty under the Hedge Agreement, plus any
other amounts due and owing to the Insurer pursuant to the
Exhibit C-3
Agreement or pursuant to the Insurance Agreement, plus any unreimbursed Swap
Amounts. Such a bid must be made in accordance with certain auction procedures
set forth in the Agreement, which include a requirement that the Trustee receive
good faith bids for such Contracts from at least two prospective purchasers (at
least one of whom is not the Contract Seller or an affiliate thereof) that are
considered by the Trustee, in its sole discretion, to be (i) competitive
participants in the market for manufactured housing installment sale contracts
or installment loan agreements and (ii) willing and able purchasers of such
Contracts. As of any time after the Pool Scheduled Principal Balance is less
than 10% of the Cut-Off Date Pool Principal Balance, the "Minimum Termination
Amount" is an amount equal to the respective Certificate Balances of all Classes
of Certificates that remain outstanding as of such time, together with any
shortfall in interest due on such Certificates in respect of prior Distribution
Dates and one month's interest at the applicable Pass-Through Rates on such
Certificate Balances. A sale and consequent termination of the Trust Fund
pursuant to a Termination Auction must constitute a "qualified liquidation" of
the Trust Fund under Section 860F of the Code, including the requirement that
the qualified liquidation takes place over a period not to exceed 90 days. If
satisfactory bids are not received, the Trustee shall decline to sell the
Contracts and shall not be under any obligation to solicit any further bids or
otherwise negotiate any further sale of the Contracts.
Any purchase pursuant to a Termination Auction or by the Servicer will be
made at the price specified in the Agreement. In the event that no such early
termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon the later of the final payment or other
liquidation of the last Contract remaining in the Trust Fund and the disposition
of all REO Property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of the certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
Exhibit C-4
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto____________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
__________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to______________________________________________________
______,for the account of___________________,account number____________, or, if
mailed by check, to_____________________________________________________.
_______. Applicable statements should be mailed to______________________.
This information is provided by________________, the assignee named above,
or_____________________________, as its agent.
Exhibit C-5
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THE CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO
SECTION 6.02(b) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
SERVICER, THE CONTRACT SELLER AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
SERVICER, THE CONTRACT SELLER OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT. NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED TO A "DISQUALIFIED
ORGANIZATION" AS DEFINED IN SECTION 860(e)(5) OF THE CODE.
THE HOLDERS OF THE CLASS R CERTIFICATES, BY PURCHASING SUCH CLASS R
CERTIFICATES, SHALL BE DEEMED TO CONSENT (1) TO THE APPOINTMENT OF THE SERVICER
AS THE TAX MATTERS PERSON FOR THE TRUST FUND OR, IF THE SERVICER DETERMINES, IN
ITS SOLE DISCRETION, THAT IT CANNOT ACT IN SUCH CAPACITY, TO THE APPOINTMENT OF
THE HOLDER HOLDING THE LARGEST PERCENTAGE INTEREST IN THE OUTSTANDING CLASS R
CERTIFICATES AS THE TAX MATTERS PERSON FOR THE TRUST FUND. IF THE HOLDER OF THE
LARGEST PERCENTAGE INTEREST IN THE OUTSTANDING CLASS R CERTIFICATES IS APPOINTED
AS THE TAX MATTERS PERSON, SUCH HOLDER SHALL BE DEEMED TO CONSENT, WITH RESPECT
TO ITS CAPACITY AS TAX MATTERS PERSON, TO THE APPOINTMENT OF THE SERVICER AS ITS
ATTORNEY-IN-FACT AND AGENT.
Exhibit D-1
THE HOLDERS OF THE CLASS R CERTIFICATES, BY PURCHASING SUCH CLASS R
CERTIFICATES, SHALL BE FURTHER DEEMED TO AGREE TO EXECUTE ANY DOCUMENTS REQUIRED
TO GIVE EFFECT TO THE FOREGOING PROVISIONS, AS SET FORTH MORE FULLY IN THE
AGREEMENT.
THIS CLASS R CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO THE REGULAR
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No. : R-__
Date of Pooling and
Servicing Agreement : December 1, 2000
Cut-Off Date : November 30, 2000
First Distribution Date : January 22, 2001
Percentage Interest
Evidenced by this
Class R Certificate _____%
Exhibit D-2
GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2000-6
evidencing a percentage interest in any distributions allocable to the
Class R Certificates with respect to a Trust Fund consisting primarily of a
pool of conventional manufactured housing contracts (the "Contracts")
formed and sold by
GreenPoint Credit, LLC (the "Contract Seller")
which manufactured housing contracts were originated or acquired by Contract
Seller, and are initially serviced by GreenPoint Credit, LLC (the "Servicer").
Neither this Certificate nor the Contracts are insured or guaranteed by the
Contract Seller, the Servicer or the Trustee referred to below or any of their
respective Affiliates or by any governmental agency or instrumentality.
This certifies that __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust Fund consisting of the Contracts deposited by the Contract
Seller. The Trust Fund was created pursuant to a Pooling and Servicing
Agreement, dated as of December 1, 2000 (the "Agreement"), between GreenPoint
Credit, LLC, as Contract Seller and Servicer, and Bank One, National
Association, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound
including, but not limited to, Section 11.12 thereof.
The Trustee will cause to be distributed to the Class R Certificateholder
the amounts to which such Holder is entitled pursuant to the terms of the
Agreement. Such distributions will be made by check mailed to the address of
the Person entitled thereto, as such address shall appear on the Certificate
Register or by wire or other transfer of immediately available funds if such
Person has given the Trustee written instructions at least ten days prior to the
related Distribution Date. Notwithstanding the above, the final distribution on
this Class R Certificate will be made only upon presentation and surrender of
this Class R Certificate at the Corporate Trust Office or the office or agency
maintained by the Trustee for such purpose.
No transfer of this Class R Certificate will be made unless the Trustee has
received either (i) an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee, the Contract Seller and the Servicer with
respect to the permissibility of such transfer under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and Section 4975 of the
Internal Revenue Code (the "Code") and stating, among other things, that the
transferee's acquisition of Class R Certificate will not constitute or result in
a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code and will not subject the Servicer, the Contract Seller or the
Trustee to any obligation or liability in addition to those undertaken in the
Agreement or (ii) a representation letter, in the form as described by the
Exhibit D-3
Agreement, stating that the transferee is not an employee benefit or other plan
subject to the prohibited transaction provisions of ERISA or Section 4975 of the
Code (a "Plan"), or any other person (including an investment manager, a named
fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of
or purchasing any Certificate with "plan assets" of any Plan.
No transfer of a Class R Certificate shall be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended, (the "Act"), or is made in accordance with said Act. In the event that
such a transfer is to be made, the prospective transferee of such Certificate
shall be required to provide the Trustee, the Contract Seller and the Servicer
with an investment letter substantially in the form described by the Agreement,
as required under Section 6.02 of the Agreement. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee, the
Contract Seller, the Servicer, the Insurer and the Certificate Registrar acting
on behalf of the Trustee against any liability that may result if the transfer
is not so exempt or is not made in accordance with the Act or any similar state
laws.
Each Holder of this Class R Certificate will be deemed to have agreed to be
bound by the restrictions of Section 6.02 of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class R Certificate must be a Permitted Transferee,
(ii) no Ownership Interest in this Class R Certificate may be transferred
without delivery to the Trustee of (a) a transfer affidavit of the proposed
transferee and (b) a transfer certificate of the transferor, each of such
documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class R Certificate must
agree to require a transfer affidavit and to deliver a transfer certificate to
the Trustee as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class R Certificate must agree not to
transfer an Ownership Interest in this Class R Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
Exhibit D-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
________________
Dated:
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
By _______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates
referred to in the within-named Agreement
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
By ____________________________________
Authorized Signatory
Exhibit D-5
EXHIBIT E
FORM OF CERTIFICATE REGARDING
SUBSTITUTION OF ELIGIBLE SUBSTITUTE CONTRACT
The undersigned certify that they are [title] and [title], respectively of
GreenPoint Credit, LLC (the "Contract Seller"), and that as such they are duly
authorized to execute and deliver this certificate on behalf of the Contract
Seller pursuant to Section 3.05(b) of the Pooling and Servicing Agreement (the
"Agreement") dated as of December 1, 2000 between GreenPoint Credit, LLC, as
Contract Seller and Servicer, and Bank One, National Association, as Trustee
(all capitalized terms used herein without definition having the respective
meanings specified in the Agreement), and further certify that:
1. The Contracts on the attached schedule are to be substituted on
the date hereof pursuant to Section 3.05(b) of the Agreement and each such
Contract is an Eligible Substitute Contract.
2. The Contract File for each such Contract being substituted for a
Replaced Contract is in the custody of the Servicer and each such Contract has
been stamped in accordance with Section 3.02(x) of the Agreement.
3. The UCC-1 financing statement in respect of the Contracts to be
substituted, in the form required by Section 3.05(b)(ii) of the Agreement, has
been filed with the appropriate office in California.
4. There has been deposited in the Certificate Account each amount
listed on the schedule attached hereto as the amount by which the remaining
principal balance of each Replaced Contract exceeds the remaining principal
balance as of the beginning of the month of substitution of each Contract being
substituted therefor.
IN WITNESS WHEREOF, I have affixed hereunto my signature this______day of
______,__.
GREENPOINT CREDIT, LLC
By________________________________
[Name]____________________________
[Title]___________________________
By _______________________________
[Name]____________________________
[Title]___________________________
Exhibit E-1
EXHIBIT F
[FORM OF CERTIFICATE OF SERVICING OFFICER]
The undersigned certifies that he is a [title] of [Servicer], a [__________
corporation][limited liability company] (the "Servicer"), and that as such he
is duly authorized to execute and deliver this certificate on behalf of the
Servicer pursuant to Section 5.05 of the Pooling and Servicing Agreement (the
"Agreement") dated as of December 1, 2000 between GreenPoint Credit, LLC, as
Contract Seller and Servicer and Bank One, National Association, as Trustee (all
capitalized terms used herein without definition having the respective meanings
specified in the Agreement), and further certifies that:
5. To the best of such officer's knowledge, the Monthly Report for
the period from________to______attached to this certificate is complete and
accurate in accordance with the requirements of Sections 5.04 and 5.05 of the
Agreement; and
6. As of the date hereof, such officer is not aware of the
occurrence of an Event of Default or of an event that, with notice or lapse of
time or both, would become an Event of Default.
IN WITNESS WHEREOF, I have affixed hereunto my signature this____day of____
_____,______.
[SERVICER]
By _________________________________
[Name]______________________________
[Title]_____________________________
Exhibit F-1
EXHIBIT G-1
FORM OF TRANSFER AFFIDAVIT
STATE OF )
)ss
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. That he/she is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2000-6, Class R (the "Owner")), a [savings
institution][corporation] duly organized and existing under the laws of [the
State of ____________][the United States], on behalf of which he/she makes this
affidavit and agreement.
2. That the Owner (i) is not and will not be a disqualified
organization, (ii) will endeavor to remain other than a disqualified
organization for so long as it retains its ownership interest in the Class R
Certificates, and (iii) is acquiring the Class R Certificates for its own
account or for the account of another Owner from which it has received an
affidavit and agreement in substantially the same form as this affidavit and
agreement. (For this purpose, a "disqualified organization" means (a) a
"disqualified organization" as defined in Section 860E(e)(5) of the Internal
Revenue Code of 1986, as amended (the "Code"), (b) the United States, any State
or political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (c) a foreign government, any international organization, or
any agency or instrumentality of any of the foregoing, (d) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (e)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code, (f) any Person "electing large partnership" within the meaning of
Section 775 of the Code and (g) any other Person so designated by the Trustee
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Class R Certificate by such Person may cause the Trust Fund, or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.)
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R Certificates to disqualified organizations under the Code;
(ii) that such tax would be on the transferor, or, if such transfer is through
an agent (which person includes a broker, nominee or middleman) for a
disqualified organization, on the agent; (iii) that the person
Exhibit G-1-1
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such person an affidavit that the transferee is not a
disqualified organization and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that the Class R
Certificates may be "noneconomic residual interests" within the meaning of
Treasury regulations promulgated pursuant to the Code and that the transferor of
a noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class R Certificates if at any time during the taxable year of
the pass-through entity a disqualified organization is the record holder of an
interest in such entity. (For this purpose, a "pass through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is not an employee benefit plan or other plan subject
to the prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or an
investment manager, named fiduciary or a trustee of any such plan, or any other
Person acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any such plan.
6. That the Owner is aware that the Trustee will not register the
transfer of any Class R Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner expressly
agrees that it will not consummate any such transfer if it knows or believes
that any of the representations contained in such affidavit and agreement are
false.
7. That the Owner has reviewed the restrictions set forth on the
face of the Class R Certificates and the provisions of Section 6.02(c) of the
Pooling and Servicing Agreement (the "Agreement") under which the Class R
Certificates were issued (in particular, clause (iii)(A) and (iii)(B) of Section
6.02(c) which authorize the Trustee and the Servicer to deliver payments to a
person other than the Owner and negotiate a mandatory sale in the event the
Owner holds such Certificates in violation of Section 6.02(c)). The Owner
expressly agrees to be bound by and to comply with such restrictions and
provisions.
8. That the Owner has reviewed the provisions of the Agreement
defining the obligations of the REMIC Administrator (as defined in the
Agreement) and hereby assumes such obligations of the REMIC Administrator and
delegates such duties to the Servicer (as defined in the Agreement); provided,
however, that such delegation will not relieve the Owner of its obligations as
REMIC Administrator. The Owner expressly agrees to be bound by and to comply
with such provisions.
9. That the Owner has reviewed the provisions of that certain
Auction Agent Agreement (the "Auction Agent Agreement"), dated as of December [
], 2000, among Bankers Trust Company (the "Auction Agent"), Bank One, National
Association, in its capacity as Trustee under the Agreement (the "Trustee") and
GreenPoint Bank ("GreenPoint"), in its
Exhibit G-1-2
capacity as Holder of the Class R Certificates (as defined in the Auction Agent
Agreement) and that certain Broker-Dealer Agreement (the "Broker-Dealer
Agreement"), dated as of December [ ], 2000, among the Auction Agent, Credit
Suisse First Boston Corporation (the "Broker-Dealer") and GreenPoint, defining
the obligation of the Holder of the Class R Certificates to pay the Auction
Agent Fee (as defined in the Auction Agent Agreement) and the Broker-Dealer Fee
(as defined in the Broker-Dealer Agreement) and hereby assumes such obligations
of the Holder of the Class R Certificates. The Owner expressly agrees to be
bound by and to comply with such provisions.
10. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is not a disqualified
organization.
11. The Owner's Taxpayer Identification Number is ____________.
12. This affidavit and agreement relates only to the Class R
Certificates held by the Owner and not to any other holder of the Class R
Certificates. The Owner understands that the liabilities described herein relate
only to the Class R Certificates.
13. That no purpose of the Owner relating to the transfer of any of
the Class R Certificates by the Owner is or will be to impede the assessment or
collections of any tax.
14. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the person from whom it acquired the Class R Certificate
that the Owner intends to pay taxes associated with holding such Class R
Certificate as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class R Certificate.
15. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Class R Certificates remain outstanding.
16. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States state thereof (including the District of Columbia),
or an estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
Exhibit G-1-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this_____day of_____,20___.
[NAME OF TRANSFEREE]
By: _______________________________
Name:
Title:
[Corporate Seal]
ATTEST:
________________________________________
[Assistant] Secretary
Personally appeared before me the above-named________, known or proved to
me to be the same person who executed the foregoing instrument and to be the of
the Transferee, and acknowledged that he executed the same as his free act and
deed and the free act and deed of the Transferee.
Subscribed and sworn before me this______day of______, __.
____________________________________
NOTARY PUBLIC
My Commission expires the _____ day
of _______, 20__.
Exhibit G-1-4
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
FOR CLASS R CERTIFICATES
GreenPoint Credit, LLC Date:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bank One, National Association,
as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GreenPoint Credit Manufactured Housing Contract
Pass-Through Certificates, Series 2000-6
----------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
________(the "Transferor") to _________(the "Buyer") of $___________Initial
Principal Balance of GreenPoint Credit Manufactured Housing Contract Trust Pass-
Through Certificates, Series 2000-6, Class R (the "Certificates"), issued
pursuant to Section 6.02(c) of the Pooling and Servicing Agreement (the
"Agreement"), dated as of December 1, 2000 between GreenPoint Credit, LLC, as
Contract Seller and Servicer, and Bank One, National Association, as the
Trustee. All terms used herein and not otherwise defined shall have the
meanings set forth in the Agreement. The Transferor hereby certifies,
represents and warrants to, and covenants with, the Contract Seller and the
Trustee that:
1. No purpose of the Transferor relating to the transfer of the
Certificate by the Transferor to the Buyer is or will be to impede the
assessment or collection of any tax.
2. The Transferor understands that the Buyer has delivered to the
Trustee and the Servicer a transfer affidavit and agreement in the form attached
to the Agreement as Exhibit G-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of the transfer conducted a
reasonable investigation of the financial condition of the Buyer as contemplated
by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Buyer has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Buyer will not continue to pay its debts as they become due in
the future. The Transferor understands that the transfer of a Class R
Certificate may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless the Transferor has conducted such an investigation.
Exhibit G-2-1
4. The Transferor has no actual knowledge that the proposed Buyer is
not both a United States Person and a Permitted Transferee.
5. The Transferor further certifies that (a) we understand that such
Certificates have not been registered under the Securities Act of 1933, as
amended (the "Act"), and are being disposed of by us in a transaction that is
exempt from the registration requirements of the Act, (b) neither the Transferor
nor anyone acting on its behalf has (i) offered, pledged, sold, disposed of or
otherwise transferred any Certificate, any interest in any Certificate or any
other similar security from any person in any manner, (ii) solicited any offer
to buy or to accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from any person in
any manner, (iii) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security from
any person in any manner, (iv) made any general solicitation by means of general
advertising or in any other manner, or (v) taken any other action, that (as to
any of (i) through (iv) above) would constitute a distribution of the
Certificates under the Act, that would render the disposition of any Certificate
a violation of Section 5 of the Act or any state securities law, or that would
require registration or qualification pursuant thereto, or (c) to the extent
such transfer is pursuant to Rule 144A under the Act, we have not offered the
Certificates to anyone other than a "qualified institutional buyer" as defined
in Rule 144A and the Act. The Transferor will not act in any manner set forth
in the foregoing sentence with respect to any Certificate. The Transferor has
not and will not sell or otherwise transfer any of the Certificates, except in
compliance with the provisions of the Agreement.
Very truly yours,
___________________________________
Name of Transferor
By: _______________________________
Name:
Title:
Exhibit G-2-2
EXHIBIT G-3
ERISA Representation Letter
December [__], 2000
GreenPoint Credit, LLC
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bank One, National Association
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: GreenPoint Credit Manufactured Housing Contract Trust
Pass-Through Certificates, Series 2000-6 - Class [ ]
-----------------------------------------------------
Certificates
------------
Dear Ladies and Gentlemen:
[_________________________] (the "Purchaser") intends to purchase from
[______________________] (the "Seller") $[__________________] initial
Certificate Balance of the above-referenced certificates (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of December 1, 2000, among GreenPoint Credit,
LLC, as seller and servicer ("GreenPoint") and Bank One, National Association,
as trustee (the "Trustee"). All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement.
The Purchaser hereby certifies, represents and warrants to, and covenants
with GreenPoint and the Trustee that, the Purchaser is not an employee benefit
or other plan subject to the prohibited transaction provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Internal Revenue Code of 1986, as amended (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan within the meaning of the U.S. Department of Labor
("DOL") regulation at 29 C.F.R.(S)2510.3-101.
In addition, the Purchaser hereby certifies, represents and warrants to,
and covenants with GreenPoint and the Trustee that the Purchaser will not
transfer the Certificates to any Plan or person unless such Plan or person meets
the requirements set forth above.
Very truly yours,
By: _______________________________
Name: _____________________________
Title: ____________________________
Exhibit G-3-1
EXHIBIT H
[RESERVED]
Exhibit H-1
EXHIBIT I
FORM OF DEPOSITORY AGREEMENT
(A copy can be obtain from the Trustee upon written request)
Exhibit 1-1
EXHIBIT J
TERMINATION AUCTION PROCEDURES
------------------------------
The following sets forth the auction termination procedures to be followed
in connection with a sale effected pursuant to Section 10.0l(b) of the Pooling
and Servicing Agreement (the "Agreement"), dated as of December 1, 2000, between
GreenPoint Credit, LLC, as Contract Seller and Servicer, and Bank One, National
Association (the "Trustee"). Capitalized terms used herein that are not
otherwise defined shall have the meanings described thereto in the Agreement.
II. Pre-Auction Process
-------------------
(a) Upon receiving notice of the Auction Termination Date, the Advisor
will initiate its general Termination Auction procedures consisting of
the following: (i) with the assistance of the Servicer, prepare a
general solicitation package along with a confidentiality agreement;
(ii) develop a list of qualified bidders, in a commercially reasonable
manner; (iii) initiate contact with all qualified bidders; (vi) send a
confidentiality agreement to all qualified bidders; (v) upon receipt
of a signed confidentiality agreement, send solicitation packages to
all interested bidders on behalf of the Trustee; and (vi) notify the
Servicer of all potential bidders and anticipated timetable.
(b) The general solicitation package will include: (i) the prospectus
supplement and prospectus from the initial public offering of any of
the Certificates; (ii) a copy of all monthly servicing reports or a
copy of all annual servicing reports and the prior year's monthly
servicing reports; (iii) a form of a Pooling and Servicing Agreement
prepared by the Trustee and the Servicer (or prepared by the Advisor
and approved by the Trustee and the Servicer); (iv) a description of
the minimum purchase price required to cause the Trustee to sell the
Contracts as set forth in Section 10.01 (a) of the Agreement; (v) a
formal bidsheet; (vi) a detailed timetable; and (vii) a preliminary
data tape of the Pool Scheduled Principal Balance as of a recent
Distribution Date reflecting the same data attributes used to create
the Cut-Off Date tables for the prospectus supplement dated December [
], 2000 relating to the public offering of certain of the
Certificates. None of the Trustee, the Servicer or the Contract Seller
shall be required to produce an updated prospectus or prospectus
supplement, and the auction procedures shall be carried out in a
manner that does not constitute a public offering of securities.
(c) The Trustee, with the assistance of the Servicer and the Advisor, will
maintain an auction package beginning at the time of closing of the
transaction, which will contain the documents listed under clauses
(i)-(ii) of the preceding paragraph. If the Advisor is unable to
perform its role as advisor to the Trustee, the Servicer acting in its
capacity under the Agreement will select a successor Advisor and
inform the Trustee of its actions.
Exhibit J-1
(d) The Advisor will send solicitation packages to all bidders at least 15
Business Days before the Auction Termination Date. Bidders will be
required to submit any due diligence questions in writing to the
Advisor for determination of their relevancy, no later than 10
Business Days before the Auction Termination Date. The Servicer and
the Advisor will be required to satisfy all relevant questions at
least five Business Days prior to the Auction Termination Date and
distribute the questions and answers to all bidders.
III. Auction Process
---------------
(a) The Advisor, any underwriter, or any Certificate Owner will be allowed
to bid in the Auction, but will not be required to do so.
(b) The Servicer will also be allowed to bid in the Termination Auction if
it deems appropriate, but will not be required to do so.
(c) On the Auction Termination Date, all bids will be due by facsimile to
the offices of the Trustee by 1:00 p.m. New York City time, with the
winning bidder to be notified by 2:00 p.m. New York City time. All
acceptable bids (as described in Section 10.01 (b) of the Agreement)
will be due on a conforming basis on the bid sheet contained in the
solicitation package.
(d) If the Trustee receives fewer than two market value bids from
participants in the market for manufactured housing installment sales
contracts and installment loan contracts willing and able to purchase
the Contracts, the Trustee shall decline to consummate the sale.
(e) Upon notification to the winning bidder, a good faith deposit equal to
one percent (1%) of the Pool Scheduled Principal Balance will be
required to be wired to the Trustee upon acceptance of the bid. This
deposit, along with any interest income attributable to it, will be
credited to the purchase price but will not be refundable. The trustee
will establish a separate account for the acceptance of the good faith
deposit, until such time as the account is fully funded and all monies
are transferred into the Certificate Account, such time not to be
later than one Business Day before the related Distribution Date (as
described above).
(f) The winning bidder will receive on the Auction Termination Date a copy
of the draft Sale and Servicing Agreement and Servicer's
Representations and Warranties (which shall be substantially identical
to the representations and warranties set forth in Section 3.01 of the
Agreement).
(g) The Advisor will provide to the Trustee a letter concluding whether or
not the winning bid is a fair market value bid. The Advisor will also
provide such letter if it is the winning bidder. In the case where
the Advisor or the Servicer is the winning bidder it will provide for
market comparables and valuations in its letter.
Exhibit J-2
(h) The Termination Auction will stipulate the Servicer be retained to
service the Contracts sold pursuant to the terms of the Agreement.
(i) The Termination Auction will stipulate that such sale and consequent
termination of the Trust Fund must constitute a "qualified
liquidation" of the Trust Fund under Section 860F of the Code,
including the requirement that such liquidation take place over a
period not to exceed 90 days. The Trustee may, in its discretion,
require that the purchaser of the Contracts provide the Trustee with
an Opinion of Counsel to that effect.
Exhibit J-3
Exhibit K
NOTICE OF RATINGS
-----------------
GREENPOINT CREDIT, LLC
MANUFACTURED HOUSING CONTRACT TRUST
PASS-THROUGH CERTIFICATES, SERIES 2000-6
The undersigned certifies that he is a [title] of [Servicer], a [_________
corporation] [limited liability company][ (the "Servicer"), and that as such he
is duly authorized to execute and deliver this certificate on behalf of the
Servicer pursuant to Section 4.23 of the Pooling and Servicing Agreement (the
"Agreement") dated as of December 1, 2000 between GreenPoint Credit, LLC, as
Contract Seller and Servicer and Bank One, National Association, as Trustee (all
capitalized terms used herein without definition having the respective meanings
specified in the Agreement), and further certifies that:
NOTICE IS HEREBY GIVEN to the [Auction Agent [if the Class A-3 Certificates are
held in Book-Entry Form]] [Trustee [if the Class A-3 Certificates are no longer
maintained in Book-Entry Form] by the Servicer pursuant to Section 2.3(a) of the
Auction Agent Agreement that:
1. as of the date of this notice the rating by Moody's on the Class
A-3 Certificates is ____; and
2. as of the date of this notice the rating by Standard & Poor's on
the Class A-3 Certificates is____;
The Auction Agent may rely on such ratings for all purposes of the Pooling and
Servicing Agreement, including determination of the Maximum Auction Rate
thereunder, from the date hereof until further notice from the undersigned.
[_________], not in its individual capacity but
solely as Servicer
By: __________________________________
Name:
Title:
Exhibit K-1
EXHIBIT L
FORM OF SWAP AGREEMENT
(A copy can be obtain from the Trustee upon written request)
Exhibit L-1